Parkhurst v. NHSP CV-09-240-PB 11/7/11 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Karl Parkhurst

v. Case N o . 09-cv-240-PB Opinion N o .

Warden, NH State Prison

MEMORANDUM AND ORDER

Karl Parkhurst was convicted of two counts of aggravated

felonious sexual assault and sentenced to an aggregate term of

twenty to forty years in state prison. He has petitioned this

court for a writ of habeas corpus, alleging that: (1) his trial

counsel rendered ineffective assistance in four specific

instances; and (2) the trial court improperly admitted

Parkhurst’s sexually graphic statements to the police. His

jailer, the Warden of the New Hampshire State Prison, has moved

for summary judgment. For the reasons described below, I grant

the Warden’s motion.

I. BACKGROUND1

A. The Assault

Citations to the trial transcripts are indicated by “Tr.” Parkhurst married the victim’s mother in 1999. After the

mother died in January 2001, Parkhurst became the legal guardian

of his two step-children, the victim, who was thirteen years old

at the time, and her eleven-year-old brother.

The victim testified that soon after her mother died,

Parkhurst started to give her hugs that lasted a long time, and

occasionally would touch her buttocks while doing s o . He also

occasionally threatened to turn over guardianship to the State.

This terrified the victim because her brother was her best

friend, and she feared being separated from him.

Several months before she turned sixteen, the victim

testified that Parkhurst began asking to perform oral sex on

her, look at her breasts and buttocks, and lick her anus. The

victim initially declined Parkhurst’s requests, but ultimately

acquiesced because she feared that if she did not, she and her

brother would be separated. When she turned sixteen, the victim

and Parkhurst began having intercourse. In March 2005, when she

was seventeen years old, the victim became pregnant with

Parkhurst’s child. In July 2005, she told her “Big Sister”

Denise McKinnon about the pregnancy, and McKinnon called the

police.

2 The next day, Parkhurst went to the Manchester police

station voluntarily. He admitted that he was the father of the

victim’s baby. At first, he claimed that the sexual

relationship had started in March 2005. When the police

expressed skepticism, he admitted that he had performed oral sex

in November 2004, but he later changed the date to March 2004.

He told the police that he had asked the victim “to lick her

vagina, because he want[ed] to see what a virgin taste[d] like.”

Tr. 2 at 158. Parkhurst subsequently wrote a statement in which

he said that in March 2004 he had “asked [the victim] if [he]

could taste her . . . .” Id. at 164.

B. The Trial

A Hillsborough County grand jury indicted Parkhurst on four

counts of aggravated felonious sexual assault. Following a jury

trial in March 2007, Parkhurst was convicted on two counts

alleging that he had used his position of authority to coerce

the victim to submit to sexual penetration while she was under

the age of eighteen. The jury acquitted him on the two counts

alleging sexual penetration with a victim under the age of

sixteen.

3 Before trial, Parkhurst invoked New Hampshire Rules of

Evidence 401, 403, and 404(b) in moving to exclude from evidence

under statements he made to the police in which he used sexually

graphic language to describe how he had asked the victim to

perform oral sex on her. The State responded by arguing that

the evidence was relevant to prove sexual penetration when the

victim was under the age of sixteen; that Parkhurst had used his

position of authority to coerce the victim to submit to his

sexual demands; and that Parkhurst had acted with the required

mens rea. The State also argued that the probative value of the

statements was considerable and not substantially outweighed by

the danger of unfair prejudice. The trial court denied

Parkhurst’s motion, ruling that the evidence was relevant to his

mental state and not unfairly prejudicial.

C. Direct Appeal and Post-Conviction Proceedings

Parkhurst appealed his conviction to the New Hampshire

Supreme Court, arguing that the trial court had improperly

admitted his statements to the police. The New Hampshire

Supreme Court affirmed his conviction on April 2 9 , 2008. In

rejecting Parkhurst’s argument, the court concluded that the

statements were relevant to Parkhurst’s mental state, his

4 position of authority, his coercion of the victim, and the

victim’s age when the assaults began. The court concluded that

the statements were not unfairly prejudicial because they would

not have caused the jury to decide the case on an improper

emotional basis. State v . Parkhurst, N o . 2007-0399 (N.H. April

2 9 , 2008).

Parkhurst next filed a motion for a new trial in the

Hillsborough County Superior Court, alleging ineffective

assistance of counsel. Without holding a hearing, the Superior

Court denied the motion on September 1 8 , 2008. On December 1 9 ,

2008, the New Hampshire Supreme Court declined to hear an

appeal.

On July 1 6 , 2009, Parkhurst filed a petition for a writ of

habeas corpus in this court, alleging ineffective assistance of

counsel and arguing for the first time that the state trial

court had violated his federal rights by admitting into evidence

his statements to the police. On September 3 0 , 2009, this Court

concluded that Parkhurst had exhausted his claims of ineffective

assistance, but that he had not exhausted the claim regarding

the admission of his statements to the police.

5 Parkhurst then filed a petition for a writ of habeas corpus

in Merrimack County Superior Court, arguing that his statements

were improperly admitted in violation of his right to due

process and a fair trial under the Sixth and Fourteenth

Amendments to the U.S. Constitution. After a hearing, the

Superior Court denied the petition on March 2 , 2010. The New

Hampshire Supreme Court declined to hear Parkhurst’s appeal on

April 2 8 , 2010. Thereafter, this court granted Parkhurst’s

motion to lift the stay on his petition and ordered service of

the petition on the Warden.

II. STANDARDS OF REVIEW

A. Summary Judgment

Summary judgment is appropriate when the record reveals “no

genuine dispute as to any material fact and that the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The evidence submitted in support of the motion must be

considered in the light most favorable to the nonmoving party,

drawing all reasonable inferences in its favor. See Navarro v .

Pfizer Corp.,

0 , 94 (1st Cir. 2001).

A party seeking summary judgment must first identify the

6 absence of any genuine issue of material fact. Celotex Corp. v .

Catrett,

(1986). The burden then shifts to

the nonmoving party to “produce evidence on which a reasonable

finder of fact, under the appropriate proof burden, could base a

verdict for i t ; if that party cannot produce such evidence, the

motion must be granted.” Ayala-Gerena v . Bristol Myers-Squibb

Co.,

6 , 94 (1st Cir. 1996); see Celotex,

.

B. AEDPA

I review Parkhurst’s habeas petition under the standards

established by the Anti-Terrorism and Effective Death Penalty

Act (“AEDPA”),

. Under AEDPA, if a state court

has adjudicated the petitioner’s claim on the merits, a federal

court may grant relief to the petitioner only if the state

court’s adjudication resulted in a decision that “was contrary

to” clearly established federal law, involved an “unreasonable

application” of clearly established federal law, or was based on

an “unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.”

(d). An application of law is unreasonable when there is

“some increment of incorrectness beyond error . . . . The

7 increment need not necessarily be great, but it must be great

enough to make the decision unreasonable in the independent and

objective judgment of the federal court.” McCambridge v . Hall,

4 , 36 (1st Cir. 2002) (internal quotation marks and

citation omitted).

III. ANALYSIS

Parkhurst first argues that his trial counsel was

constitutionally ineffective based on her handling of four

different issues. His second claim is that the trial court

violated his right to due process when it admitted into evidence

his sexually graphic statements to the police. I address each

argument in turn.

A. Ineffective Assistance of Counsel

Parkhurst contends that his trial counsel rendered

constitutionally ineffective assistance by: (1) failing to

acquire a jewelry store receipt which Parkhurst believed was

important to his defense; (2) failing to acquire records from

Suncoast Video Store, which Parkhurst claims would have

established a critical date and refuted the victim’s monetary

coercion claim; (3) failing to acquire a videotaped interview of

8 the victim; and (4) failing to challenge alterations made in

police reports and the use of the altered records by the State

at trial. 2 The Warden argues that the performance of Parkhurst’s

trial counsel was not deficient, and that even if it was, the

deficiency did not prejudice the outcome of Parkhurst’s case.

To succeed on a claim of ineffective assistance of counsel,

a habeas petitioner must show “both deficient performance by

counsel and resulting prejudice.” Peralta v . United States,

4 , 79 (1st Cir. 2010) (citing Strickland v . Washington,

(1984)); see also Kimmelman v . Morrison,

(1986) (adopting the two-prong Strickland standard

for claims of ineffective assistance of counsel on habeas

review). In order to satisfy the “deficient performance” prong

of this standard, a petitioner must prove that his trial

counsel’s representation fell below “an objective standard of

2 In his habeas petition, Parkhurst raised two additional ineffective assistance claims, alleging that his trial counsel (1) improperly advised him that New Hampshire does not recognize a consent defense for the offenses with which he was charged; and (2) failed to investigate certain misrepresentations contained in the police reports. Doc. N o . 1 at 5 . In his objection to the Warden’s motion for summary judgment, however, Parkhurst states that he concedes the first claim and withdraws the second claim. Doc. N o . 21 at 9. Because Parkhurst has chosen to forego those claims, I do not address them. 9 reasonableness.” Pina v . Maloney,

8 , 54 (1st Cir.

2009); Owens v . United States,

8 , 57 (1st Cir. 2007).

To establish prejudice, a petitioner must demonstrate “that, but

for counsel’s unprofessional error, there is a reasonable

probability that the result of the proceeding would have been

different.” Yeboah-Sefah v . Ficco,

3 , 70 (1st Cir.

2009), cert. denied, 130 S . C t . 639 (2009) (quoting Sleeper v .

Spencer,

2 , 39 (1st Cir. 2007)). If counsel’s actions

did not prejudice the defendant, the court may dispose of the

ineffective assistance claim with a prejudice analysis alone.

Strickland,

(“If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient

prejudice, which we expect will often be s o , that course should

be followed.”).

My review of the state court’s decision denying Parkhurst’s

ineffective assistance claims is “doubly deferential.” Cullen

v . Pinholster, 131 S . C t . 1388, 1403 (2011) (quoting Knowles v .

Mirzayance, 129 S . C t . 1411, 1413 (2009)). I must take a

“highly deferential look at counsel’s performance [under

Strickland], through the deferential lens of § 2254(d).” Id.

(internal quotation marks and citations omitted). Specifically,

10 because Parkhurst’s ineffective assistance claim is subject to

AEDPA’s deferential standard of review, he “must not only

establish counsel’s ineffectiveness under Strickland, but must

also demonstrate that the state court’s denial of his claim was

objectively unreasonable.” Abrante v . S t . Amand,

1 ,

19 (1st Cir. 2010).

In Parkhurst’s case, the state court applied the Strickland

standard to the ineffective assistance claims, noting that the

prejudice standard was the same under both state and federal

law. In rejecting his claims, the state court assumed without

deciding that his trial counsel’s performance was deficient.

The court, however, found that his claims nonetheless failed

because he could not show that the alleged deficiencies actually

prejudiced his case. Doc. N o . 1-14 at 4 .

1. Failure to Obtain Jewelry Store Receipt

Parkhurst testified at trial that he had proposed to the

victim in March 2005, before he knew that she was pregnant. Tr.

2 at 227. The victim claimed that Parkhurst’s proposal came

only after he learned that she was pregnant.

.

Parkhurst argues that his trial counsel was ineffective because

she failed to obtain a jewelry store receipt showing that he had

11 purchased an engagement ring in September 2004. Although

Parkhurst does not say so directly, he implies that the receipt

would have helped to rebut the state’s contention that his

sexual relationship with the victim was coercive. He also

relies on the fact that the jury asked a question concerning the

issue during delegations to support his argument that the

failure to obtain the receipt was prejudicial to his case.

The Superior Court held that the trial counsel’s failure to

obtain the receipt “was of no consequence.” Doc. N o . 1-14 at 7 .

The court reasoned that the receipt would not have proven that

Parkhurst in fact asked the victim to marry him on the same date

he purchased the ring, and that, therefore, counsel’s failure to

obtain the receipt did not prejudice Parkhurst’s case.

The state court’s prejudice determination was neither an

“unreasonable application” of Strickland nor an “unreasonable

determination of the facts in light of the evidence presented.”

See

(d). Parkhurst has not demonstrated a

reasonable probability that the jury would have returned a not

guilty verdict had his counsel obtained and presented at trial

the jewelry store receipt. See Strickland,

. As

the state court pointed out, the receipt does not prove that he

12 asked the victim to marry him before she got pregnant. More

importantly, even if the receipt would have established the date

of the proposal, Parkhurst does not explain why it would have

been advantageous to establish that he had proposed to the

victim on the date he purchased the ring. This evidence does

not raise a probability sufficient to undermine confidence in

the guilty verdict in his case. See Peralta, 597 F.3d at 79-80.

There was an overwhelming amount of evidence that Parkhurst, as

the victim’s guardian, was in a position of authority and

exploited that position to coerce her to engage in sexual

activities. Even if Parkhurst had proven that he proposed to

her before she got pregnant, it would be insufficient to call

into question the coercive nature of their sexual activities.

Moreover, Parkhurst admits that the victim turned down his

marriage proposal, which makes the proposal even less relevant

to his claim of mutual love between the two.

Because the state court reasonably determined that the

counsel’s failure to obtain the receipt did not prejudice the

outcome in Parkhurst’s case, it properly denied his ineffective

assistance claim.

2. Failure to Obtain Video Store Records

13 Parkhurst’s next claim of ineffective assistance is that

his trial counsel failed to obtain Suncoast Video Store records

where the victim had opened a membership account. Parkhurst

contends that those records are relevant because the date the

victim opened the account was the date of their first sexual

contact, and the fact that she paid for the merchandise herself

demonstrates that he was not buying her goods to procure sexual

favors.

In rejecting this claim, the state court concluded that the

trial counsel was not ineffective because she engaged in

meaningful discovery regardless of whether she obtained the

video store records. Specifically, the state court reasoned

that the counsel’s correspondence to Parkhurst demonstrated that

she had attempted to obtain the records but the video store

could not locate them.

Parkhurst has failed to demonstrate that the state court’s

application of Strickland to the facts of this ineffectiveness

claim was objectively unreasonable. He has demonstrated neither

deficient performance nor resulting prejudice from the counsel’s

failure to obtain the video store records. See Strickland,

. The state court reasonably concluded that

14 Parkhurst’s counsel was not ineffective because she sought to

obtain those records but was unable to do s o . In a memorandum

dated August 1 , 2006, his counsel detailed the extensive steps

she had taken to obtain the Suncoast records without success.

Doc. N o . 1-6 at 5 . Those efforts did not fall below an

objective standard of reasonableness. See Pina, 565 F.3d at 5 4 .

Even if his counsel’s performance was deficient, Parkhurst

has not demonstrated the resulting prejudice. See Strickland,

. Assuming without deciding that the records

would have corroborated his testimony that his first sexual

encounter with the victim was after her sixteenth birthday, the

absence of those records did not prejudice his case because the

jury acquitted him of charges that the victim was under sixteen.

He was convicted of sexual assault occurring before the victim

reached the age of eighteen. Given that the victim was pregnant

with Parkhurst’s child at seventeen, the date of their first

sexual encounter is inconsequential.

Parkhurst’s argument that the video store records

demonstrate that he was not using monetary incentives to coerce

the victim to have sex is similarly insufficient to establish

prejudice. Absence of records demonstrating that on one

15 occasion the victim paid for certain merchandise herself does

not create a reasonable probability that the jury would have

acquitted Parkhurst of exploiting his position of authority to

coerce the victim to have sex with him. A review of the trial

transcript demonstrates that the victim’s claim that Parkhurst

bought her things in exchange for sexual favors paled in

comparison to her multiple claims that she was afraid Parkhurst

would turn over guardianship to the State and thereby separate

her from her brother if she did not comply with his sexual

requests.

Because Parkhurst cannot demonstrate that his trial counsel

was ineffective in failing to obtain the video store records or

that the absence of those records prejudiced the outcome in his

case, the state court’s denial of his claim was objectively

reasonable.

3. Failure to Obtain Videotaped Interview of the Victim

Parkhurst claims that trial counsel was ineffective because

she did not obtain a videotaped police interview of the victim.

He contends that this evidence was relevant because his trial

counsel switched the original transcript of the interview with a

redacted version that allegedly excluded certain exculpatory

16 statements establishing that the victim was a “willing

participant and mutual decision [ ] maker in the sexual

activities . . . .” Doc. N o . 21 at 7 . The state court found

that even if trial counsel had provided Parkhurst with a copy of

the videotape, the outcome of the trial would not have been

affected. Doc. N o . 1-14 at 8 .

Parkhurst has failed to demonstrate that the state court

unreasonably applied the Strickland test to his ineffective

assistance claim. See

(d). The state court

rejected Parkhurst’s claim under the prejudice prong of

Strickland without deciding whether the trial counsel’s failure

to provide Parkhurst with the videotape of the victim’s

interview constituted deficient performance. Doc. N o . 1-14 at

8. Parkhurst maintains that the redacted portions of the

interview would have raised reasonable doubt regarding the claim

that he coerced the victim to engage in sexual activities,

because the victim admitted to performing oral sex on Parkhurst

on her own initiative; she stated that he threatened to turn

over guardianship to the State only a couple of times; and the

interviewing officer asked certain questions multiple times,

17 “signaling the [victim] had given the ‘wrong’ answer.” Doc. N o .

21 at 7 , 9.

Even assuming that the videotape of the victim’s interview

would have exposed those additional statements, they are

insufficient to give rise to a reasonable probability that the

jury verdict would have been different. See Yeboah-Sefah,

0 . Significantly, most of the issues that Parkhurst

claims would have been uncovered in the videotaped interview

were in fact exposed during the trial. During cross-

examination, the victim testified that she told the police that

her sexual relations with Parkhurst were consensual and that she

liked i t . Tr. 1 at 184-85. She also testified that she was

uncertain how many times Parkhurst had threatened to turn over

guardianship to the State.

. The exculpatory

statements that Parkhurst claims were redacted from the

transcript of the victim’s interview are thus not of any

particular significance, given that similar statements emerged

at the trial. Moreover, the allegation that the interviewing

officer asked certain questions multiple times does not,

standing alone, establish that the officer coerced the victim

during the interview. For these reasons, there is no reasonable

18 probability that, had Parkhurst obtained the videotaped

interview of the victim, the jury would have returned a not

guilty verdict on the coercion charges. Therefore, Parkhurst

has failed to show that the state court unreasonably concluded

that his case was not prejudiced due to his counsel’s alleged

deficiency.

4. Failure to Challenge Alterations in Police Reports

Lastly, Parkhurst argues that his trial counsel was

ineffective because she did not challenge certain alterations in

police reports that prejudiced his case. It is unclear,

however, whether he is referring to alterations in the

transcript of the victim’s interview or to misrepresentations in

other reports that he challenged in the state court. Out of

abundance of caution, I address all of the reports.

In his objection to the Warden’s motion for summary

judgment, Parkhurst indicates that the alterations pertain to

the transcript of the victim’s police interview, the issue

addressed in the previous claim. Given my conclusion that

Parkhurst has failed to demonstrate prejudice with respect to

his trial counsel’s failure to obtain the videotaped interview

of the victim, I need not elaborate on the lack of prejudice in

19 counsel’s failure to challenge at trial alterations in the

redacted interview transcript.

In his motion for a new trial, Parkhurst also claimed that

his counsel failed to challenge inaccuracies in two police

reports, one falsely reflecting that he had been arrested for

armed rape, and the other falsely stating that the victim’s

friend Nelia was present when the police interviewed the victim.

Doc. N o . 1-5 at 9. Without specifically addressing this claim,

the state court held that his trial counsel’s performance did

not prejudice Parkhurst’s case.

Parkhurst has not demonstrated that a police report stating

that he had been arrested for armed rape was introduced at

trial. Therefore, he has failed to demonstrate that the outcome

in his case was prejudiced by his counsel’s failure to challenge

the inaccurate report. With respect to the allegation that his

trial counsel failed to challenge the inaccuracy regarding

Nelia’s presence during the victim’s interview, Parkhurst has

failed to demonstrate a reasonable probability that the

counsel’s failure undermines confidence in the outcome of his

case. Therefore, the state court reasonably concluded that

20 Parkhurst failed to show any prejudice resulting from counsel’s

alleged failure to challenge inaccuracies in either report.

Because Parkhurst has not demonstrated that the state

court’s application of Strickland to any of his ineffective

assistance claims was objectively unreasonable, Section 2254(d)

prohibits habeas relief.

B. Evidentiary Claim

Parkhurst argues that his rights to due process and a fair

trial were violated when the trial court admitted his statements

to the police that he had asked the victim “to lick her vagina,

because he want[ed] to see what a virgin taste[d] like” and had

“asked [the victim] if [he] could taste her.” He contends that

those statements were irrelevant and unfairly prejudicial. In

response, the Warden argues that the claim is procedurally

defaulted because Parkhurst failed to raise it on his direct

appeal, and that even if the claim is not waived, it is without

merit. I determine that the claim is not procedurally

defaulted, but I nevertheless deny relief on the merits.

A federal habeas claim “is precluded in circumstances in

which a state prisoner has defaulted on that claim in state

court by virtue of an independent and adequate state procedural

21 rule.” Janosky v . S t . Amand,

9 , 44 (1st Cir. 2010)

(citing Coleman v . Thompson,

(1991)). As the

court of appeals has observed, a claim for habeas relief is

procedurally defaulted in either of two situations: (1) “if the

state court has denied relief on that claim on independent and

adequate state procedural grounds;” or (2) “if it was not

presented to the state courts and it is clear that those courts

would have held the claim procedurally barred.” Pike v .

Guarino,

1 , 73 (1st Cir. 2007), cert. denied sub nom.

Pike v . Bissonette,

(2007). When it applies,

procedural default can be surmounted only if “the prisoner can

demonstrate cause for the default and actual prejudice as a

result of the alleged violation of federal law, or demonstrate

that failure to consider the claims will result in a fundamental

miscarriage of justice.” Coleman,

.

The Warden argues that because Parkhurst did not raise a

federal basis for his evidentiary claim in the notice of direct

appeal, the claim is procedurally defaulted. The Warden is

correct that, under New Hampshire law, a petitioner who has

knowledge of an issue and an opportunity to raise the issue on

direct appeal, but who fails to do s o , procedurally waives the

22 issue for state collateral review. See Avery v . Cunningham,

(1988). Parkhurst neither raised nor briefed the

federal due process claim on direct appeal. Instead, he argued

that the trial court erred in failing to exclude his sexually

graphic statements under New Hampshire Rules of Evidence 401,

403, and 404(b). He did not argue that the admission of those

statements also violated his federal constitutional rights, nor

did he cite a single case that would allow for the inference

that he intended to assert a federal claim.

The Warden fails to recognize, however, that “[t]he mere

existence of a basis for a state procedural bar does not deprive

[federal courts] of jurisdiction; the state court must actually

have relied on the procedural bar as an independent basis for

its disposition of the case.” Caldwell v . Mississippi,

(1985); see Harris v . Reed,

(1989)

(“[A] procedural default does not bar consideration of a federal

claim on either direct or habeas review unless the last state

court rendering a judgment in the case ‘clearly and expressly’

states that its judgment rests on a state procedural bar.”

(quoting Caldwell,

)). Although the state habeas

court could have denied Parkhurst’s due process claim on

23 procedural default grounds, it did not do s o . Instead, the

state habeas court declined to rule on Parkhurst’s federal claim

on res judicata grounds, noting that “the issue of the

statements’ admissibility has already been decided and this

court is bound to adhere to the supreme court ruling.” Doc. N o .

12-1 at 7 . The fact that the state court declined to rule on

the merits of Parkhurst’s claim on res judicata grounds is not a

bar to federal habeas review. See Cone v . Bell, 129 S . C t .

1769, 1781 (2009) (“When a state court refuses to readjudicate a

claim on the ground that it has been previously determined, the

court’s decision does not indicate that the claim has been

procedurally defaulted.”).

Because the state court never addressed Parkhurst’s due

process claim, my review is de novo. Pike,

7 ; see

Dugas v . Coplan,

, 7 (1st Cir. 2007) (“[A] federal

court ‘can hardly defer to the state court on an issue that the

state court did not address.’”) (quoting Fortini v . Murphy,

9 , 47 (1st Cir. 2001)). In asserting his due process

claim, Parkhurst contends that the sexually graphic statements

he made to the police should have been excluded because they

were unfairly prejudicial and without probative value, and that

24 admitting the statements into evidence rose to the level of a

constitutional violation.

When a habeas petitioner challenges the application of a

state evidentiary rule, federal review “is severely limited.”

Abrante,

. Violation of a rule of evidence,

without more, is not enough to warrant federal habeas review.

Evans v . Verdini,

(1st Cir. 2006). “To be a

constitutional violation, a state evidentiary error must so

infuse the trial with inflammatory prejudice that it renders a

fair trial impossible.” Abrante,

(quoting

Petrillo v . O’Neill,

1 , 44 n.2 (1st Cir. 2005); see

also Coningford v . Rhode Island,

(1st Cir.

2011) (“[T]o trigger [federal habeas] relief, the state court’s

application of state law must be ‘so arbitrary or capricious as

to constitute an independent due process . . . violation.’”

(quoting Lewis v . Jeffers,

(1990))).

On direct appeal, the New Hampshire Supreme Court found

that the statements Parkhurst challenges were properly admitted

into evidence, rejecting Parkhurst’s argument that the

statements were irrelevant and unfairly prejudicial. Upon

review of the record, I find no indication of an evidentiary

25 error, let alone one that infused Parkhurst’s trial with

“inflammatory prejudice that [ ] render[ed] a fair trial

impossible.” Abrante,

9 . The government had to

prove that Parkhurst had used his position of authority to

coerce the victim to engage in sexual acts. The New Hampshire

Supreme Court reasonably determined that the statements he made

to the police were relevant to a number of contested facts,

including Parkhurst’s mens rea, his position of authority, and

whether he coerced the victim. In particular, his statements

are relevant as admissions that he was the instigator of sexual

relations, and that the specific language is indicative of the

power relationship between him and the victim.

In addition, the New Hampshire Supreme Court found that the

statements’ probative value was not substantially outweighed by

the danger of unfair prejudice. The court reasoned that,

although crude, the statements would not have caused the jury to

decide the case on an improper emotional basis, and noted that

Parkhurst’s acquittal on two of the indictments supported its

conclusion. I cannot say that the court erred in balancing the

statements’ probative value against their prejudicial effect.

26 Even if erroneous, the state court’s evidentiary ruling did

not rise to the level of a constitutional deprivation. The

statements, although sexually explicit, were not so inflammatory

as to fatally infect the trial and result in the denial of

fundamental fairness. See Abrante,

9 . Parkhurst

cites no authority to suggest otherwise. Therefore, I find that

the admission of the challenged statements into evidence did not

violate Parkhurst’s rights to due process and a fair trial.

IV. CONCLUSION

For the foregoing reasons, I grant the Warden’s motion for

summary judgment (Doc. N o . 1 7 ) . Because Parkhurst has failed to

make a substantial showing of the denial of a constitutional

right, I decline to issue a certificate of appealability. See

(c)(2); Rule 1 1 , Federal Rules Governing Habeas

Corpus Cases Under Section 2254; First Cir. LR 22.0. The clerk

shall enter judgment accordingly and close the case.

SO ORDERED.

/ s / Paul Barbadoro Paul Barbadoro United States District Judge

27 November 7 , 2011.

cc: Karl Parkhurst, pro se Elizabeth C . Woodcock, Esq.

28