UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Timothy Perri

v. Civil No. 13-cv-403-JD Opinion No.

Richard M. Gerry, Warden, (Corrected Opinion No.) New Hampshire State Prison

O R D E R

Timothy Perri seeks a writ of habeas corpus, pursuant to

, on the ground that his state conviction on charges

of kidnaping, aggravated felonious sexual assault, attempted

aggravated felonious sexual assault, and criminal threatening was

the result of an unnecessarily suggestive identification process

in violation of the Fourteenth Amendment. Warden Richard M.

Gerry moves for summary judgment contending that Perri’s claim is

both unexhausted and waived and, in addition, would fail on the

merits. Perri also moves for summary judgment.

Standard of Review

In habeas corpus proceedings under § 2254, motions for

summary judgment are considered under Federal Rule of Civil

Procedure 56 but only to the extent that the application of Rule

56 is not inconsistent with § 2254 and the Rules Governing

Section 2254 Cases. Fed. R. Civ. P. 81(a)(4); Rule 12 of the

Rules Governing Section 2254 Cases; Cutler v. Warden,

, at *1 (D.N.H. Dec. 3, 2013). The parties agree that there are no disputed facts, that a hearing is not necessary, and

that the case is submitted for judgment as a matter of law.

To obtain relief under § 2254, a petitioner must exhaust the

available state court remedies or show that an exception to the

exhaustion requirement applies. § 2254(b)(1). For claims that

were adjudicated on the merits in state court, a petitioner must

demonstrate that the state court 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 . . . was based on an unreasonable determination of

the facts in light of the evidence presented in the State court

proceeding.” § 2254(d). A decision is entitled to deference

under § 2254(d) as long as the court adjudicated the federal

claim on the merits or under a state law standard that is at

least as protective of the defendant’s rights as federal law.

Morgan v. Dickhaut,

(1st Cir. 2012).

Background

The background information is taken from the decision of the

New Hampshire Supreme Court on Perri’s direct appeal, State v.

Perri,

(2013).

Late in the evening of August 22, 2008, N.R. was walking

home from work along Route 16 in North Conway, New Hampshire. A

man approached her and propositioned her for sex in exchange for

money. He said he was from out of town and was working as a

painter. N.R. declined and walked away. Further down the road

2 near a scenic overlook, the man approached N.R. again and made a

sexual advance. When N.R. rejected him, the man punched her in

the face, pulled her into the woods, and raped her.

N.R. reported the attack to police. “She described her

attacker as a white man in his late twenties or early thirties,

with a thin, muscular build, a narrow face, and a goatee.”

. On September 18, the police received a report of another

attack in the same area and issued an alert to be on the lookout

for the man N.R. had described. Several days later, New

Hampshire State Trooper Craig McGinley saw Perri walking near the

scenic overlook, identified several of the characteristics N.R.

had described, and apprehended him.

The police assembled an array of eight photographs of men,

including Perri. The other seven photographs were selected from

the police department’s computer system. The police showed the

photographs to N.R. at her home on September 25. N.R. identified

Perri as the attacker.

The next day, N.R. met with Elizabeth Kelley, program

director of the Child Advocacy Center, at the police station. In

response to Kelley’s questioning, N.R. expressed uncertainty

about her identification of Perri. The police suspended their

investigation because of N.R.’s uncertainty.

Despite the suspension by the police department, Trooper

McGinley continued his investigation and assembled a file on

Perri. McGinley’s file included photographs of Perri and

documents about his criminal background. McGinley met with N.R.

3 at work on June 19, 2009, and told her that he thought she had

identified the right person as her attacker. McGinley gave N.R.

his file on Perri and let her look through it by herself for

about five minutes. McGinley retrieved the file and gave N.R.

his contact information. He told her to contact him if she

wanted to pursue the matter. On June 28, 2009, N.R. sent a text

message to McGinley in which she stated that she would like to

“help put this guy away.”

N.R. met with Officer Jody Eichorn of the Moultonborough

Police Department on July 22. Eichorn asked N.R. about her

identification of her attacker in September of 2008. N.R. said

that she had identified her attacker in the photograph array and

explained that the police then made her “second-guess” herself by

repeatedly asking her how sure she was of the identification.

N.R. did not remember meeting with Kelley and discussing the

identification with her. When Eichorn asked if she were positive

that she had identified her attacker, N.R. responded, “I’m,

yeah.” Perri was arrested on July 24, 2009.

Perri was charged with aggravated felonious sexual assault

and kidnaping. He moved to suppress N.R.’s identification from

the photograph array in September of 2008, any testimony about

N.R.’s conversation with Eichorn, and an in-court identification.

His motion was denied. Perri was tried in April of 2010, but

when the jury could not reach a verdict, a mistrial was declared.

The state then added charges of attempted aggravated felonious

sexual assault and criminal threatening. The second trial was

4 held from August 27 to September 7, 2010. Perri was convicted on

all counts. He was sentenced to consecutive terms of

imprisonment on each of the charges.

On appeal, Perri argued that the trial court erred in

denying his motion to suppress the identification evidence, erred

in prohibiting him from eliciting from N.R. that the person who

helped prepare her for the second trial was the jury foreperson

in the first trial, erred in denying his motion to suppress

evidence that a police officer found a folding pocket knife when

Perri was frisked when detained, and erred in admitting the

evidence of the pocket knife. The New Hampshire Supreme Court

affirmed his conviction.

Discussion

For purposes of his petition for habeas corpus relief, Perri

challenges the New Hampshire Supreme Court’s decision affirming

the trial court’s decision that N.R.’s identification of Perri as

her attacker was admissible at trial. Perri contends that the

identification evidence violated his federal due process rights.

The warden moves for summary judgment on the grounds that the

identification claim was not exhausted in state court and was

waived and, alternatively, that the New Hampshire Supreme Court’s

decision was neither contrary to nor an unreasonable application

of federal law.

5 A. Waiver and Exhaustion

On appeal, Perri challenged the trial court’s decision to

admit N.R.’s identification of him as the attacker and related

evidence about that identification as a violation of his due

process rights. The warden argues that the identification claim

was waived and was not exhausted because Perri now relies on

Foster v. California,

(1969), which was not raised

or cited before the state courts. Perri objects, asserting that

the warden is relying on too narrow a view of what claim was

presented.

1. Waiver

In support of his waiver theory, the warden merely cites two

New Hampshire cases pertaining to waiver of an issue on appeal

when a defendant fails to present the issue in the notice of

appeal or fails to brief an issue that was included in the

notice. It is undisputed that Perri raised the issue on appeal

challenging on due process grounds the admissibility of the

identification evidence. The warden does not explain why

omitting the Foster case from the notice of appeal and briefing

on appeal would constitute waiver of the identification issue.

Under these circumstances, the question of waiver and

presumably the related issue of procedural default are not

sufficiently developed to permit consideration. See Coons v.

Industrial Knife Co., Inc.,

(1st Cir. 2010); see

6 also Pike v. Guarino,

(1st Cir. 2007) (discussing

defense of procedural default).

2. Exhaustion

The warden also contends that Perri failed to exhaust the

identification claim because he did not cite the Foster case in

the state court proceedings. “A petitioner has exhausted state

remedies when his claim is fairly presented to the state courts.”

Rosenthal v. O’Brien,

(1st Cir. 2013) (internal

quotation marks omitted). To satisfy the exhaustion requirement,

the petitioner must “show that he fairly and recognizably

presented to the state courts the factual and legal bases of his

federal claim.” Coningford v. Rhode Island,

(1st Cir. 2011). That burden may be satisfied in one of several

ways which include “reliance on a specific provision of the

Constitution, substantive and conspicuous presentation of a

federal constitutional claim, on-point citation to federal

constitutional precedents, identification of a particular right

specifically guaranteed by the Constitution, and assertion of a

state-law claim that is functionally identical to a federal

constitutional claim.”

In support of his failure-to-exhaust theory, the warden

merely cites the dissenting opinion in Duncan v. Henry,

, 370 n.1 (1995), quoting a Ninth Circuit case, for the

proposition that a petitioner must present the operative facts

and legal theory to the state court. Without any analysis, it is

7 unclear why that proposition would bar Perri’s claim in this

case. As the petitioner notes, he raised the claim in state

court that use of the identification evidence violated his state

and federal due process rights. See, e.g., Clements v. Maloney,

(1st Cir. 2007). Therefore, the petitioner has

sufficiently shown that the claim was exhausted.

B. Claim on the Merits

Perri contends that the New Hampshire Supreme Court’s

decision is contrary to the precedent of the United States

Supreme Court concerning the corrupting effect of suggestions by

the police to influence an eyewitness’s identification of an

accused. “A state court’s ruling is contrary to federal law

either when it adopts a rule that contradicts the governing law

set forth in the Supreme Court’s cases or when it reaches a

different result from a Supreme Court decision under a set of

facts that are materially indistinguishable.” Rosenthal,

(internal quotation marks omitted). The petitioner

bears the burden of showing that the state court decision is

contrary to established federal law. Cullen v. Pinholster,

(2011).

Perri argues that the New Hampshire Supreme Court’s decision

is contrary to United States Supreme Court precedent because the

court failed to consider the corrupting effect of McGinley’s

conduct, including the motive for providing the suggestive

circumstances for N.R.’s second identification. Perri contends

8 that this case presents more egregious circumstances than those

considered in Foster,

, and that the New Hampshire

Supreme Court made an error of law in its analysis. Perri

contends that he is entitled to summary judgment and asks that

the case be remanded to the New Hampshire Supreme Court.1

In Foster, the Supreme Court stated that “judged by the

totality of the circumstances, the conduct of identification

procedures may be so unnecessarily suggestive and conducive to

irreparable mistaken identification as to be a denial of due

process of law.” Foster,

(internal quotation

marks omitted). The police procedures in Foster involved two

highly suggestive lineups, without a positive identification,

followed by showing the suspect, by himself, to the witness,

which yielded an identification. The Court concluded that the

suggestive procedures made it “all but inevitable that [the

witness] would identify petitioner whether or not he was in fact

‘the man.’”

. The Court then held that “[t]his

procedure so undermined the reliability of the eyewitness

identification as to violate due process.”

Although

McGinley’s conduct caused an unnecessarily suggestive

identification procedure, the facts here are materially different

from those in Foster.

1 Granting a petition under § 2254 does not cause the federal case to be “remanded” to state court. Therefore, Perri seeks relief that cannot be granted under § 2254.

9 Since Foster, the United States Supreme Court has revisited

the standard for determining when identification procedures

violate due process. See Perry v. New Hampshire,

(2012). In Neil v. Biggers,

(1972), and

Manson v. Brathwaite,

(1977), the Court held that due

process does not require the automatic suppression of witness

identification “when law enforcement officers use an

identification procedure that is both suggestive and

unnecessary.” Perry,

. Instead, “the Due

Process Clause requires courts to assess, on a case-by-case

basis, whether improper police conduct created ‘a substantial

likelihood of misidentification.’”

(quoting Biggers,

).

“[D]ue process concerns arise only when law enforcement

officers use an identification procedure that is both suggestive

and unnecessary.” Perry,

. In that event, the

identification must be excluded if “the ‘indicators of [a

witness’s] ability to make an accurate identification’ are

‘outweighed by the corrupting effect’ of law enforcement

suggestion . . . .”

at 725 (quoting Mason v. Brathwaite,

(1977)). “‘[R]eliability [of the eyewitness

identification] is the linchpin . . . .’” Perry,

-25 (quoting Brathwaite,

). In making that

determination, factors to be considered by the court include

“‘the opportunity of the witness to view the criminal at the time

of the crime, the witness’ degree of attention, the accuracy of

10 his prior description of the criminal, the level of certainty

demonstrated at the confrontation, and the time between the crime

and the confrontation.’” Perry,

n.5 (quoting

Braithwaite,

, citing Biggers,

-

200).

In this case, the New Hampshire Supreme Court determined

that due process was implicated by McGinley’s unnecessarily

suggestive identification process. Then, the supreme court

considered the factors necessary for determining whether N.R.’s

identification was reliable, despite McGinley’s conduct. The

supreme court concluded, based on that analysis, that N.R.’s

identification was reliable and that the trial court properly

found the evidence admissible. Therefore, the New Hampshire

Supreme Court followed the requirements of United States Supreme

Court precedent.

Conclusion

For the foregoing reasons, the respondent’s motion for

summary judgment (document no. 6) is granted. The petitioner’s

motion for summary judgment (document no. 10) is denied. The

petition for a writ of habeas corpus (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.

11 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: Richard Guerriero, Esq. Elizabeth C. Woodcock, Esq.

12