UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Adam Mentus

v. Civil No. 12-cv-447-JD Opinion No.

Warden, New Hampshire State Prison

O R D E R

Adam Mentus, proceeding pro se, filed a petition for a writ of habeas corpus pursuant to

. In his petition,

Mentus challenged his state court manslaughter conviction on the

grounds that the state court violated his Fifth, Sixth, and

Fourteenth Amendment rights by failing to authorize the full

amount he requested to hire a gun expert and that the

prosecutor’s closing argument violated his right to a fair trial

under the Fifth and Fourteenth Amendments. The warden moves for

summary judgment.1 Mentus objects to the motion for summary

judgment only as to his claim based on funding for an expert

witness and concedes summary judgment as to his claim based on

the prosecutor’s closing argument.2

1 The warden’s first motion for summary judgment, which was unopposed, was denied without prejudice because of errors and insufficient support. 2 After the warden filed the second motion for summary judgment, Mentus moved for appointment of counsel to represent him. The motion was granted. Mentus’s first appointed counsel withdrew, and new counsel was appointed on January 13, 2014. Mentus has been represented since that time and is represented for purposes of the summary judgment motion. Standard of Review

In habeas proceedings as in other civil cases, “[s]ummary

judgment is proper if there is no genuine issue as to any

material fact and the undisputed facts show that the moving party

is entitled to judgment as a matter of law.” Kuperman v. Wrenn,

(1st Cir. 2011); see also Fed. R. Civ. P.

81(a)(4).

Background3 In June of 2008, Mentus and his friend, Nathan Caron, drove

to a firearms store where Caron bought a handgun. Later in the

day, Mentus and three others, including Deirdre Budzyna, planned

to go to a sandpit to fire the gun. Mentus loaded the gun before

leaving. Budzyna was driving, and Mentus sat behind her.

Moments after getting into the car, Mentus took the loaded

gun out of his pocket to put it under his seat. As he reached

down with the gun in his right hand, it fired. The bullet went

through the seat and hit Budzyna, puncturing her lung. She got

out of the car, and Mentus called 911. Budzyna later died at the

hospital.

Mentus was charged with manslaughter. Because he was

indigent, Mentus was represented by counsel from the New

3 The warden did not provide a factual statement in support of the second motion for summary judgment but, instead, incorporated by reference the factual statement from the original motion. But see LR 7.1(a)(3). The court relies on the facts provided in State v. Mentus,

(2011).

2 Hampshire Public Defender’s office. The defense intended to

pursue a theory that the gun had misfired.

Before trial, counsel asked the court to authorize, pursuant

to RSA 604-A:6, payment of $3,000.00 to hire Gregory Danas as a

firearms expert. The court held a hearing and stated that an

explanation was needed as to why $3,000.00 was necessary for the

expert. The court initially authorized $750.00 but said that the

amount would be increased if detailed information was provided

about what the expert would do for $3,000.00. The court increased the allocation to $1,200.00, which was still not enough

to hire Danas.

Instead of Danas, the defense hired a lawyer who was

involved in litigation against firearm manufacturers to serve as

the firearms expert. The court ruled that the lawyer was not

qualified to testify as an expert. As a result, Mentus did not

have a firearms expert at trial to support his defense that the

gun misfired.

A firearms expert examined the gun and testified on behalf

of the state. On examination of the gun, the state’s expert

found the safety and trigger pull to be in good working order.

The expert found a warning that the model of gun could fire if it

were dropped, creating an extremely dangerous situation. The

expert tested the gun for that problem, but the gun did not

misfire. The expert testified as to all of that information at

trial.

3 Mentus was convicted of manslaughter and was sentenced to

ten to twenty years in prison. On appeal, Mentus challenged the

trial court’s decision to authorize only $1,200.00 for his expert

witness, rather than the full amount he requested. The trial

court’s decisions were affirmed by the New Hampshire Supreme

Court.

Discussion

In support of summary judgment, the warden contends that the state court’s decision affirming the trial court’s rulings on

funding for an expert witness was not contrary to or an

unreasonable application of Supreme Court precedent. Mentus

objects to summary judgment, arguing that the de novo standard of

review applies and that the New Hampshire Supreme Court’s

decision violates his due process rights.

A. Review under Section 2254

When a habeas petitioner’s claim was adjudicated on the

merits in state court, the petitioner must show that the state

court’s decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States; or [] resulted in a

decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court

proceeding.”

(d). If, however, the federal

claim was not adjudicated on the merits, a de novo standard

4 applies. Fortini v. Murphy,

(1st Cir. 2001),

accord Wright v. Marshall,

(1st Cir. 2011).

“When a federal claim has been presented to a state court and the

state court has denied relief, it may be presumed that the state

court adjudicated the claim on the merits in the absence of any

indication or state-law procedural principles to the contrary.”

Harrington v. Richter,

(2011).

In the trial court and on appeal, Mentus raised both federal

constitutional grounds and state law grounds to support his request for funds to hire an expert witness. The New Hampshire

Supreme Court reviewed Mentus’s expert claim under state law,

stating that “‘[r]egardless of whether a defendant has invoked

equal protection, fundamental fairness necessary for due process,

or the right to services to enable his counsel to assist him

effectively, an indigent defendant’s access to experts has been

said to lie within the sound discretion of the court.’” Mentus,

(quoting State v. Wellington,

(2004)). The supreme court further stated that “to succeed on

appeal the defendant ‘must demonstrate by clear and convincing

evidence that his request to the court included as complete a

showing of necessity for the desired services as could be

expected of him, and that the denial of funds substantially

prejudiced him at trial.’” Mentus,

(quoting

Wellington,

). The court concluded under the

state law standard that Mentus failed to show that he had been

prejudiced, and affirmed the trial court’s decision.

5 Here, the warden contends that although the state court did

not address Mentus’s federal claim, the deferential standard of

review applies because the state standard is the “functional

equivalent” of the federal standard. Mentus argues that his

claim should be addressed under the de novo standard because the

New Hampshire Supreme Court did not decide his federal claim on

the merits. It is not necessary to resolve the issue of which

standard applies here because even under the de novo standard,

Mentus’s petition fails. See Kirwan v. Spencer,

(1st Cir. 2011).

B. Expert Witness Claim

The court “shall entertain an application for a writ of

habeas corpus in behalf of a person in custody pursuant to the

judgment of a State court only on the ground that he is in

custody in violation of the Constitution or laws or treaties of

the United States.” § 2254(a). In his petition, Mentus alleged

that the state court violated his Fifth, Sixth, and Fourteenth

Amendment rights by denying him the full amount he requested to

hire a firearms expert witness for his defense. For purposes of

opposing summary judgment, Mentus argues only that due process

required the state to provide him the funds he requested for a

gun expert at trial.

The Supreme Court has held that states must provide indigent

criminal defendants “with the basic tools of an adequate defense

. . . .” Britt v. North Carolina,

(1971).

6 Based on that requirement, the Supreme Court recognized an

indigent criminal defendant’s right to have access to a mental

health expert when the defendant’s mental health will be a

significant factor at trial.4 Ake v. Oklahoma,

(1985). Although indigent criminal defendants are entitled to

“an adequate opportunity to present their claims within the

adversary system,” Ross v. Moffitt,

(1974),

they are not necessarily entitled to all requested services or to

the expert of their choice, Ake,

. The trial court provided funds for the defense to hire a gun

expert in Mentus’s case. Mentus contends that because the funds

provided were insufficient to hire the expert he had chosen, his

due process rights were violated. Mentus argues that a gun

expert was necessary to help his counsel prepare to cross examine

the state’s gun expert as well as to counter the testimony of the

state’s gun expert. Mentus also argues that his counsel was

4 The Supreme Court has not decided if or when an indigent criminal defendant would be entitled to the assistance of an expert witness for matters other than mental health. Caldwell v. Mississippi,

, 323 n.1 (1985); see also Gary v. Hall,

(11th Cir. 2009); Soto v. Adams,

, at *7 (C.D. Cal. June 8, 2012). The First Circuit has not addressed the issue of whether the rule in Ake would apply to non-psychiatric expert witnesses. Other federal courts have come to different conclusions about the application of Ake in contexts outside of mental health. See Babick v. Berghuis,

(6th Cir. 2010); United States v. Rodriguez-Felix,

(10th Cir. 2006); Bridges v. Beard, --- F. Supp. 2d -- -,

(E.D. Pa. Apr. 23, 2013); see also Blanco v. Sec’y, Fl. Dep’t of Corrs.,

(11th Cir. 2012); Wogenstahl v. Mitchell,

(6th Cir. 2012).

7 forced to “bargain shop” for an expert, which resulted in hiring

an expert who was not qualified and was not permitted to testify.

While Mentus states that the expert of his choice was not

available with the limited funds provided and that the expert the

defense hired was not qualified, he does not show or even argue

that no competent expert was available. As is noted above, due

process does not require that indigent defendants be provided

“all the assistance that [a] wealthier counterpart might buy.”

Ake,

. In addition, the New Hampshire Supreme Court found that

Mentus’s misfire theory was not plausible because his various

versions of how the shooting occurred were not consistent with

the way in which that particular gun could have misfired.

Mentus,

. Mentus does not challenge that

finding here. See § 2254(e)(1). The New Hampshire Supreme Court

also concluded that the jury could have found that Mentus’s

conduct was reckless within the meaning of the manslaughter

statute, whether or not the gun misfired.5 Id. at 797-98. Those

findings undermine the significance of a gun expert for Mentus’s

defense.

Therefore, Mentus has not shown that he is incarcerated

because the state court’s decision to provide $1,200 instead of

5 Despite his knowledge of gun safety rules and his knowledge that his conduct violated those rules, Mentus brought a loaded gun into the car and handled the gun, pointing it at Budzyna’s seat, without checking to see if the safety was on.

8 $3,000 for the defense to hire a gun expert violated his due

process rights.

Conclusion

For the foregoing reasons, the warden’s motion for summary

judgment (document no. 8) is granted.

The petition for habeas corpus relief (document no. 1) is

denied.

Because there is no substantial showing of the denial of a constitutional right within the meaning of

(c)(2), the court declines to issue a certificate of

appealability.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

____________________________ Joseph A. DiClerico, Jr. United States District Judge

May 29, 2014

cc: David W. Ruoff, Esq. Elizabeth C. Woodcock, Esq.

9