UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Paul J. McGrath

v. Civil No. 14-cv-353-JD Opinion No.

Warden, New Hampshire State Prison

O R D E R

Paul J. McGrath, proceeding pro se, seeks a writ of habeas

corpus, pursuant to

, challenging his conviction

in state court on charges of second degree assault and criminal

mischief. In support, McGrath alleges that he received

ineffective assistance of counsel and that his right to due

process was violated by prosecutorial misconduct and evidentiary

errors. The Warden moves for summary judgment on some of

McGrath’s claims, and McGrath objects.

Standard of Review

Summary judgment is appropriate when the moving party

“shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.”1

1 A motion for summary judgment under Federal Rule of Civil Procedure 56 may be considered in a § 2254 proceeding. See Perri v. Gerry,

, at *1 (D.N.H. May 29, 2014). In doing so, the court applies the standard under Rule 56 and the standard under § 2254. Bonney v. Wilson,

(10th Cir. 2016). Fed. R. Civ. P. 56(a). “A genuine dispute is one that a

reasonable fact-finder could resolve in favor of either party

and a material fact is one that could affect the outcome of the

case.” Flood v. Bank of Am. Corp.,

(1st Cir.

2015). Reasonable inferences are taken in the light most

favorable to the nonmoving party, but unsupported speculation

and evidence that “is less than significantly probative” are not

sufficient to avoid summary judgment. Planadeball v. Wyndham

Vacation Resorts, Inc.,

(1st Cir. 2015)

(internal quotation marks omitted).

Background

The charges against McGrath arose out of an incident

between Paul McGrath and his former wife, Donna (now Donna

Freeman), on July 19, 2011, at their home in Epsom, New

Hampshire.2 They began arguing earlier in the day about

Freeman’s children from a prior marriage.

That evening, after more verbal exchanges, McGrath

approached Freeman and made a fist. She acted defensively to

prevent a punch. McGrath then grabbed Freeman around the throat

2 Paul and Donna are now divorced, and Donna’s name is now Donna Freeman. The court will refer to Paul McGrath as “McGrath” and to Donna Freeman as “Freeman.”

2 with both hands and squeezed so hard that Freeman had trouble

breathing.

After Freeman kicked McGrath, he released her. Freeman

went out to her car, ostensibly to retrieve a house key, and

locked the car doors. McGrath got their framed wedding

photograph and threw it at the car windshield, which cracked the

windshield. Freeman started the car and drove to her night

shift job at Cumberland Farms.

Freeman felt safe at work because McGrath would not walk

that far. When she got to work, Freeman called the Epsom

police. Officer Ferdinand Cruz responded.

Cruz saw that Freeman had red marks on her neck and was

upset. Freeman told him what had happened with McGrath. While

Cruz was talking to Freeman, McGrath called and told her he was

sorry. He asked if she had called the police and threatened to

damage things in the house. Freeman said that she had called

the police. McGrath called back and told her that he was

destroying the house.

Cruz photographed the red marks on Freeman’s neck and her

car’s broken windshield. He then went to McGrath’s house but

found no one there. After Cruz left, the police dispatcher

called Cruz to report that a neighbor had called Freeman because

McGrath was breaking furniture and windows at their home. Cruz

went back to the house but did not find McGrath. Cruz asked for

3 backup, but the two officers who responded also did not find

McGrath.

When Cruz returned to the house at 2:00 a.m., he saw a

light on inside. McGrath came outside with a drink in his hand,

but did not show obvious signs of intoxication. Cruz asked

McGrath what had happened. McGrath answered that he had argued

with Freeman and she grabbed his arm. McGrath said that he put

his arm around her neck and choked her, and then Freeman kicked

him and walked out of the house. McGrath presented himself for

arrest with his hands behind his back. Cruz told him that he

was under arrest and took him to the police station.

Cruz returned to Cumberland Farms to tell Freeman that

McGrath was in jail. When Freeman got home after work, she

found glass in the front yard. Inside the house, she found

broken chairs, other damaged furniture, and smashed glasses and

dishes. Later, Freeman discovered that her son’s mattress had

been stabbed. Cruz went back to the house to take photographs

of the damage.

Freeman applied for and was granted a restraining order

against McGrath. McGrath did not contest the grounds for the

restraining order.

McGrath was charged with one count of second degree assault

by strangulation, one count of simple assault, and two counts of

criminal mischief. He was represented by appointed counsel,

4 John M. Draghi. The state terminated the simple assault charge

by nolle prosequi. The case was tried during May of 2012.

McGrath was found guilty on the charges of second degree assault

and criminal mischief. He was sentenced to three and a half

years to seven years in prison on the assault conviction with

suspended sentences on the criminal mischief convictions.

Draghi moved to withdraw from representing McGrath on

November 1, 2012. He cited Rule 1.7(a) of the New Hampshire

Rules of Professional Conduct to support the motion. The court

granted the motion and appointed new counsel to represent

McGrath.

On July 9, 2013, McGrath, while represented by counsel,

filed a motion for a new trial. He raised claims of ineffective

assistance of counsel because trial counsel did not retain a

medical expert to evaluate Freeman’s injuries shown by red marks

on her neck and failed to impeach Officer Cruz’s testimony about

McGrath’s oral and physical confessions. He also alleged that

the state failed to provide him with favorable and exculpatory

evidence, specifically, a police report about an incident at

Freeman’s work when an angry customer threw a tick at her that

lodged in her neck.

The state court held a hearing on the motion for a new

trial at which it heard testimony from Draghi, McGrath’s former

counsel, along with other evidence. The court denied the motion

5 for a new trial and denied the subsequent motion for

reconsideration. McGrath filed a notice of discretionary

appeal, which the New Hampshire Supreme Court declined to

accept.

McGrath, proceeding pro se, filed a petition for habeas

corpus relief under § 2254 in this court in August of 2014. On

preliminary review, the magistrate judge identified the

following claims in McGrath’s petition:

1. McGrath’s conviction was obtained in violation of his Sixth Amendment right to the effective assistance of counsel at trial, in that his defense counsel, Attorney Draghi: a. Failed to impeach EPD Officer Cruz regarding the inconsistencies between his trial testimony and his police report regarding his arrest of McGrath; b. Failed to consult with and produce a medical expert at trial to testify regarding the red marks on Donna McGrath’s neck; c. Elected to forego a probable cause hearing, at a time when McGrath was not prepared to contest the state’s bail recommendation; d. Failed to investigate inconsistencies between EPD Officer Cruz’s police reports relating to McGrath’s arrest; e. Failed to investigate inconsistencies between EPD Officer Cruz’s police reports and Donna McGrath’s witness statement; f. Failed to interview Donna McGrath’s Cumberland Farms co-worker, the McGraths’ neighbors, and witnesses who saw Donna McGrath’s tick bite; g. Failed to consult with and/or produce a psychiatrist to provide expert testimony regarding Donna McGrath’s demeanor; h. Failed to challenge the sufficiency of evidence regarding the amount of property damage attributable to McGrath; i. Failed to investigate whether McGrath owned the property that he was charged with destroying; j. Failed to explain to McGrath the significance of the reduction of the criminal mischief charge from a felony to a misdemeanor; k. Failed to object to hearsay statements; and

6 l. Failed to pursue the defense approved by McGrath, which was that McGrath did not do any of the charged acts.

2. McGrath’s conviction was obtained in violation of his Fourteenth Amendment right to due process, in that the prosecutor did not produce to McGrath an exculpatory police report regarding a tick lodged in Donna McGrath’s neck.

3. McGrath’s conviction was obtained in violation of his Fourteenth Amendment right to due process, in that the prosecutor (a) knowingly allowed EPD Officer Cruz to testify falsely at trial regarding the circumstances surrounding his arrest of McGrath, and (b) knowingly allowed Donna McGrath to testify falsely regarding McGrath grabbing her arm.

4. McGrath’s conviction was obtained in violation of his Fourteenth Amendment right to due process, in that the evidence was insufficient to show that McGrath acted knowingly and purposefully, to establish guilt beyond a reasonable doubt.

5. McGrath’s conviction was obtained in violation of his Fourteenth Amendment right to due process, in that the prosecutor’s opening statement prejudiced the jury by making McGrath out to be a monster, and included remarks about McGrath’s conduct that were not supported by the evidence.

The magistrate judge informed McGrath that he had not shown

that all of his claims had been exhausted. McGrath was given

time either to move to stay the petition while he exhausted all

claims or to move to amend to forego the unexhausted claims.

McGrath moved to stay and then filed a pleading in his state

criminal case to exhaust the claims he raised here.

In its order dated December 23, 2014, the Merrimack County

Superior Court stated that McGrath had “filed a pleading which

appears to be another attempt to raise a claim of ineffective

assistance of counsel. He also seeks to have this Court recuse

itself.” The motion was denied. McGrath filed a motion to

7 amend on January 9, 2015, that does not appear to have been

addressed by the court.3 McGrath also appealed the court’s

December 23, 2014, decision, and the New Hampshire Supreme Court

declined the notice on July 13, 2015. The stay was lifted on

October 15, 2015.

On October 26, 2015, McGrath filed an addendum to his

petition, and the Warden did not object. The magistrate judge

identified additional claims to support the petition as follows

(document no. 37):

6. McGrath’s conviction was obtained in violation of his Sixth Amendment right to the effective assistance of counsel at trial, in that his defense counsel, Attorney Draghi: a. Did not conduct any investigation of the charges against McGrath, and did not hire an investigator; b. Did not come up with a trial strategy; c. Failed to interview property managers William and Maureen Carone regarding Donna’s tick bite; d. Failed to interview the Elks Club bartender regarding McGrath’s demeanor, for the purpose of developing evidence that would demonstrate that McGrath did not act knowingly and purposefully; e. Failed to interview Donna’s Cumberland Farms co-workers regarding Donna’s appearance after the assault, for the purpose of developing evidence that Donna’s demeanor was not consistent with having been assaulted; f. Failed to interview Donna’s next door neighbor Shyla Valley, regarding whether Valley told Donna that McGrath was smashing glass in Donna’s house; g. Failed to interview Donna’s neighbor Dale, regarding the broken glass on the ground the morning after the incident; h. Did not obtain the video of the EPD booking area at the time of McGrath’s booking, which would have been evidence that McGrath had not acted knowingly and purposefully, as he had been

3 The Warden mistakenly represents that the state court addressed the motion to amend in the December 23 decision. Because the motion to amend was filed on January 9, 2015, it was not addressed in the court’s prior order.

8 drinking, suffered memory loss, and had taken medications for chronic depression and bi-polar disorder; i. Did not consult with, or produce at trial, an expert, who would have testified as to noticeable changes between three pictures of Donna’s neck, and as to whether there were hand or finger prints on Donna’s neck in those three photos, taken on July 19 and July 20, 2011; j. Did not obtain the police report or medical records regarding an incident where a Cumberland Farms patron may have thrown a tick at Donna, which could have been used to show that marks on Donna’s neck did not result from strangulation; k. Did not obtain Rent-a-Center records that would have shown that McGrath and not Donna owned the property he destroyed; l. Delivered an opening statement that, on p. 24 of the trial transcript, manifests his attorney misconduct, lack of professionalism, and lack of interest in representing McGrath; m. Did not cross-examine EPD Officer Cruz, or otherwise offer as evidence the bench warrant, the EPD dispatch report, and a Pembroke Police Department communication as evidence, to impeach Cruz’s testimony that his intent, when he approached McGrath, was merely to talk with him, and not to arrest McGrath; n. Did not move to suppress or object in court to the admissibility of the “implied confession” of McGrath, who surrendered as soon as EPD Officer Cruz approached him, where there was evidence McGrath had been drinking and was on medication, and that the “implied confession” was not knowing and voluntary; o. Did not object to or cross examine either Donna or EPD Officer Cruz as to their testimony regarding their familiarity and relationship with one another, where Attorney Draghi was aware before trial that Donna had cooperated with the EPD on other matters; p. Did not cross examine Donna regarding the inconsistencies between her testimony and the photos taken by the state, regarding her broken property; and q. Did not move to withdraw from representing McGrath prior to trial, when he had a duty to do so, for violations of N.H. Rules of Professional Conduct.

7. McGrath’s conviction was obtained in violation of his Fourteenth Amendment right to due process, in that the prosecutor knowingly: a. Allowed EPD Officer Cruz to testify falsely as to his relationship with Donna by failing to disclose that she had been a confidential informant for the Epsom Police Department since 2007;

9 b. Allowed Donna to testify falsely as to her relationship with EPD Officer Cruz by failing to disclose that she had been a confidential informant for the Epsom Police Department since 2007; c. Offered tampered photos of Donna’s neck as evidence; d. Allowed Donna to testify falsely that marks on the back of Donna’s neck were from McGrath’s fingers; and e. Allowed Donna to testify falsely that McGrath had destroyed Donna’s property.

8. McGrath’s conviction was obtained in violation of his Fourteenth Amendment right to due process, in that the state destroyed and/or did not turn over, before trial: a. The booking video that would have showed that McGrath’s demeanor at the time of his arrest was inconsistent with knowing and purposeful acts; b. Photos that do not show hand prints on Donna’s neck; and c. The EPD dispatch report that showed that Officer Cruz was in McGrath’s driveway at the time McGrath was breaking things in McGrath’s house, which could have been used to impeach EPD Officer Cruz’s testimony regarding the circumstances of McGrath’s arrest.

The Warden moved for summary judgment, and McGrath filed an

objection. The Warden did not reply to the objection.

Discussion

The Warden moves for summary judgment on the grounds that

McGrath’s claims listed by the magistrate judge as Claims 1

through 5 have no merit and Claim 6.d was not exhausted and

lacks merit.4 McGrath objects. To the extent McGrath raises new

4 In the motion for summary judgment, the Warden recites only five of the eight claims that were identified by the magistrate judge as supporting McGrath’s petition. Nevertheless, without specifically addressing the claim by number, the Warden also seeks summary judgment on Claim 6.d.

10 claims or issues in his objection, those matters are not

properly part of his § 2254 petition in this case.

A prisoner in custody pursuant to a state court judgment is

not entitled to relief unless the adjudication of the claim

“resulted in a decision that 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.” § 2254(d). Factual determinations

by the state court are presumed to be correct, and the

petitioner bears the burden of rebutting that presumption by

clear and convincing evidence. If the state court did not

adjudicate the claim on the merits, then no deference is due,

and the claim is decided de novo. Jenkins v. Bergeron, --- F.3d

---,

(1st Cir. May 27, 2016).

The state court analyzed and decided the claims raised in

McGrath’s motion for a new trial. In response to the subsequent

pro se motion filed on December 6, 2014, the state court

summarily denied the motion without any detailed analysis of the

claims. The state court did not address McGrath’s motion to

amend, filed on January 9, 2015.

The Warden acknowledges that the state court provided no

analysis of many of McGrath’s claims. Nevertheless, the Warden

11 argues that those claims, except two that the Warden contends

were not exhausted, were adjudicated on the merits and that a

modified deference standard used by the Sixth Circuit should

apply. See Veasquez v. Jones,

(6th Cir.

2007).

The court declines to apply the Sixth Circuit standard,

which does not appear to conform to the First Circuit’s

interpretation of Supreme Court precedent. See Jenkins v.

Bergeron, --- F.3d ---,

(1st Cir. May 27,

2016). Instead, the court will apply the deferential standard

under § 2254(d) to those claims that the state court analyzed

and the de novo standard to claims the state court did not

expressly address. See Jaynes v. Mitchell, --- F.3d ---,

(1st Cir. June 2, 2016) (de novo standard

appropriate when § 2254 claims would fail even under that

standard); see also § 2254(b)(2) (unexhausted claims may be

denied on the merits).

A. Due Process Claims5

McGrath contends that his conviction was obtained in

violation of his right to due process because the prosecutor did

5 Because McGrath’s claims of ineffective assistance of counsel, Claim 1 with subparts a through l, repeat some of the issues raised in the due process claims, the due process claims, Claims 2 through 5, are addressed first.

12 not produce to the defense the police report about the tick

incident, (Claim 2), the prosecutor allowed Cruz and Freeman to

testify falsely at trial (Claim 3), the evidence was

insufficient to establish his guilt beyond a reasonable doubt

(Claim 4), and the prosecutor’s opening statement was improper

and prejudicial (Claim 5). The Warden moves for summary

judgment on the due process claims, Claims 2 through 5.

1. Tick Incident Police Report

On May 9, 2011, more than two months before McGrath

assaulted Freeman, an incident occurred while Freeman was

working at Cumberland Farms. According to the police report of

the incident, Freeman stated that an angry customer threw a tick

at her when she refused to allow him into the store, which was

closed, and the tick lodged in the back of her neck. The

responding police officer found tweezers, and Freeman had

someone else at the store remove the tick.

After his conviction, McGrath asked the Epsom Police

Department for the police report of the tick incident. The

report was provided to him. In support of his petition under

§ 2254, McGrath argues that the prosecutor violated McGrath’s

right to due process by failing to provide the police report

before trial.

13 “‘The suppression by the prosecution of evidence favorable

to an accused upon request violates due process where the

evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.”

Wearry v. Cain,

(2016) (quoting Brady v.

Maryland,

(1963)). To succeed on a § 2254 claim

under Brady, a petitioner must show that the undisclosed

evidence “is sufficient to undermine confidence in the verdict.”

Wearry,

.

McGrath raised the tick bite report in support of his

motion for a new trial in state court. The state court found

that the tick bite report was not exculpatory because McGrath

had not provided medical evidence that a tick bite so long

before the assault would have helped his case and because the

bite could not explain the red marks on both sides of Freeman’s

neck.6 In addition, the state court found that the evidence of

6 To the extent McGrath attempts to argue that Freeman did not have red marks on both sides of her neck, he has not shown by clear and convincing evidence that the state court’s factual finding was incorrect. § 2254(e)(1). McGrath also argues vaguely and without record support that the photographs showed a laceration on Freeman’s neck that was self-inflicted. It is unclear what claim McGrath’s allegation was intended to support, but in the absence of evidence and a developed argument, it cannot be considered. Similarly, McGrath’s vague argument that the photographs of Freeman’s neck, showing the red marks, should have been suppressed is raised for the first time in his objection to the motion for summary judgment and cannot be considered in support of his petition.

14 McGrath’s guilt was so overwhelming that the tick bite report

would not have affected the verdict.

McGrath does not argue and has not shown that the state

court’s decision was contrary to or involved an unreasonable

application of Supreme Court precedent. Therefore, Claim 2

provides no relief under § 2254.

2. False Testimony

McGrath contends in Claim 3 that the prosecutor knowingly

allowed Cruz and Freeman to testify falsely at trial.

Specifically, McGrath challenges Cruz’s testimony about the

circumstances of the arrest and his testimony about the sequence

of events before he was arrested. McGrath also suggests that

Cruz had a motive to lie because he had a preexisting

relationship with Freeman. He challenges Freeman’s testimony

about the details of the assault.

Criminal defendants have the right to a fair trial, and

prosecutorial misconduct by using false testimony violates that

right. Housen v. Gelb,

(1st Cir. 2014)

(citing Napue v. Illinois,

(1959)). The

“knowing use of false testimony amounts to a due process

violation and warrants a new trial only where such testimony was

‘material,’ i.e., where ‘there is any reasonable likelihood that

the false testimony could have affected the judgment of the

15 jury.’” Burgos v. Roden,

, at *6 (D. Mass. Nov.

20, 2015) (quoting Giglio v. United States,

(1972)).

McGrath notes slight differences between Cruz’s testimony

and his police report of the arrest. He argues that he did not

provide a “physical confession” by offering himself for arrest.

The matters McGrath raises do not show that Cruz’s testimony was

false and, therefore, do not show that the prosecutor used false

testimony.

Similarly, McGrath focuses on minor differences in

Freeman’s statements about details of the assault and whether

she grabbed McGrath’s arms or wrists, or slapped them away. The

differences McGrath seizes upon are too inconsequential to show

that the prosecutor used false testimony. There is no

likelihood that the differences in Freeman’s statements or in

Cruz’s testimony could have affected the judgment.

3. Sufficiency of the Evidence

McGrath argues that the evidence was insufficient that he

acted knowingly and purposefully on the night of the assault.

He claims, apparently, that because he had been drinking and had

taken medication he was in a black out condition and does not

remember anything about the events that night. The Warden

16 contends that the claim is waived and that the evidence of his

mental state was overwhelming.

The Warden’s waiver argument is not well supported.

Therefore, the court considers the sufficiency of the evidence

of McGrath’s mental state.

When a petitioner challenges the sufficiency of the

evidence to support his conviction, “the relevant question is

whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia,

(1979). The state court

held generally, in the order denying McGrath’s motion for a new

trial, that the evidence was more than sufficient to support the

guilty verdict but did not specifically address the elements of

knowingly and purposely.

McGrath was convicted of second degree assault, in

violation of RSA 631:2, I(f), for knowingly strangling Freeman,

and convicted of misdemeanor criminal mischief for purposely

damaging household goods and throwing a framed picture at

Freeman’s car. Under New Hampshire law, “[a] person acts

purposely with respect to a material element of an offense when

his conscious object is to cause the result or engage in the

conduct that comprises the element.” RSA § 626:2, II(a). “[A]

person acts knowingly with respect to conduct or to a

17 circumstance that is a material element of an offense when he is

aware that his conduct is of such nature or that such

circumstances exist.” RSA § 626:2, II(b).

The only evidence of McGrath drinking before the assault is

that he asked Freeman to get him beer.7 During the assault, he

was able to walk, talk, and respond to Freeman. After the

assault, McGrath called Freeman at work and apologized for his

actions but threatened her that if she called the police he

would break everything in the house and then turn himself in to

the police. When Cruz confronted McGrath at his home, McGrath

did not appear to be intoxicated or otherwise impaired, and

McGrath confessed to the assault.

Therefore, the evidence was sufficient to support the

verdict.

4. Prosecutor’s Opening Statement

McGrath contends that the prosecutor’s opening statement

violated his right to due process because the prosecutor

described McGrath as a monster and the remarks were not

supported by evidence at trial. To succeed on a claim

challenging a prosecutor’s opening statement, the petitioner

must show that “the prosecutor’s comments so infected the trial

7 McGrath’s new theory that he walked to the Elks Club, after taking medication, and drank there was not before the jury.

18 with unfairness as to make the resulting conviction a denial of

due process.” Darden v. Wainwright,

(1986)

(internal quotation marks omitted). The state court did not

address the issue of the prosecutor’s opening statement.

In this case, the prosecutor likened McGrath’s assault on

Freeman to a nightmare. While those remarks may have strayed

beyond the usual purpose of an opening statement, the underlying

facts about the ordeal were introduced into evidence. In

addition, the state court judge instructed the jury that the

lawyers’ statements were not evidence and that they should

follow their own memory of the evidence. Therefore, the

prosecutor’s opening statement did not violate McGrath’s right

to due process.

B. Ineffective Assistance of Counsel

McGrath alleges a long list of claims that Draghi provided

ineffective assistance of counsel. Those claims are presented

in Claim 1, subparts a-l, and Claim 6, subparts a-q. The

current motion for summary judgment challenges the ineffective

assistance of counsel claims alleged in Claim 1, with its

subparts, and Claim 6.d.

To show that counsel’s representation was constitutionally

ineffective, a petitioner must prove that counsel’s performance

was deficient and that the deficient performance prejudiced his

19 defense. United States v. Dunfee, --- F.3d ---,

(1st Cir. May 2, 2016) (citing Strickland v.

Washington,

(1984)). To be deficient, for purposes

of an ineffective assistance claim, counsel’s performance must

have been substandard and denied the petitioner effective

representation. Jaynes,

. Prejudice

requires a showing that “but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

(internal quotation marks omitted).

“When a federal court reviews an ineffective assistance of

counsel claim under § 2254, it must use a doubly deferential

standard of review that gives both the state court and the

defense attorney the benefit of the doubt.” Id. Under

deferential review, the federal court must determine whether the

state court unreasonably applied the standard, not whether

counsel’s performance fell below the standard. Id.

1. Elks Bartender

In Claim 6.d, McGrath charges that Draghi should have

interviewed the bartender at the Elks Club where McGrath says he

was drinking before he assaulted Freeman. He contends that

because he took medication and was drinking he remembers nothing

about the evening. He argues that the interview would have

20 produced evidence that that he did not act knowingly or

purposely when he strangled Freeman.

The Warden challenges Claim 6.d as being unexhausted. A

claim cannot be raised in support of a petition under § 2254

unless it was exhausted in state court. § 2254(b)(1)(A).

Exhaustion requires the petitioner to present “‘his federal

claim in such a way as to make it probable that a reasonable

jurist would have been alerted to the existence of the federal

question.’” Jaynes,

(quoting Sanchez v.

Roden,

(1st Cir. 2014). “[T]he legal theory

articulated in the state and federal courts must be the same.”

Sanchez,

(internal quotation marks omitted).

In his motion filed in state court on December 6, 2014,

McGrath claimed that the conviction was obtained in violation of

his due process rights because “the evidence was insufficient to

show that McGrath acted knowingly purposefully [sic], to

establish guilt beyond a reasonable doubt.” McGrath did not

raise a question about interviewing the Elks bartender or argue

that Draghi provided ineffective assistance because of a lack of

evidence that he acted knowingly or purposely.

The ineffective assistance of counsel claim raised here,

pertaining to interviewing the Elks bartender, does not appear

to have been raised in state court. Therefore, the claim was

not exhausted and cannot be the basis for habeas relief.

21 In addition, the claim fails on the merits for the reasons

provided in the Warden’s memorandum in support of summary

judgment. § 2254(b)(2).

2. Officer Cruz’s Reports

McGrath alleges that Draghi provided ineffective assistance

by failing to impeach Cruz with inconsistencies between his

reports and his trial testimony about McGrath’s arrest (Claim

1.a) and by failing to show inconsistencies in Cruz’s reports

about McGrath’s arrest (Claim 1.d).8 Prior to McGrath’s arrest,

he confessed to the assault on Freeman. Draghi testified that

he did not cross examine Cruz about McGrath’s confession to

avoid emphasizing it and because Cruz had credibly explained

other inconsistencies in his report and his testimony.

The state court found that Draghi’s tactical decision not

to inquire about McGrath’s confession appropriately reduced its

significance. The court also found that because the evidence of

McGrath’s guilt was overwhelming, any error did not prejudice

the defense. McGrath has not shown that the state court’s

decision was contrary to or an unreasonable application of the

Strickland standard.

8 McGrath’s arguments about Miranda rights and accusations that Cruz’s testimony was perjury are meritless for the reasons provided in the Warden’s memorandum.

22 3. Medical Expert on Red Marks

McGrath contends that Draghi provided ineffective

assistance by failing to retain a medical expert to testify

about the red marks on Freeman’s neck shown in photographs taken

by Cruz (Claim 1.b). The state court found, based on Draghi’s

testimony, that Draghi’s strategic decision not to contest the

red marks on Freeman’s neck with expert opinion testimony was an

appropriate tactical decision because such evidence would not

have undermined the state’s case and could have harmed the

credibility of the defense. As such, the state court concluded

that Draghi’s decision not to challenge the cause of the red

marks was not deficient representation and that the lack of

expert opinion testimony did not prejudice the defense.

The state court properly applied Strickland standard for

assessing constitutionally effective representation. Therefore,

McGrath has not made the required showing under § 2254(d) to

support relief.

4. Probable Cause Hearing

McGrath contends that Draghi provided ineffective

assistance by waiving a probable cause hearing when McGrath was

not then in a position to contest the state’s bail

23 recommendation (Claim 1.c).9 If the claim were raised in state

court, which does not appear to be the case, the state court did

not expressly address it.

McGrath claims that Draghi advised him that the state had

ample evidence of probable cause so that he should waive a

probable cause hearing, which he did. As a result, McGrath

reasons, he proceeded into the bail hearing when he did not have

his living arrangements planned. He blames the amount of bail

set by the court on his inability to present solid living

arrangements.

McGrath does not explain how Draghi’s advice could have

affected the outcome of the criminal conviction. See Condon v.

Carlin,

, at *3 (D. Idaho May 20, 2016) (“After

conviction, a claim for past unlawful imprisonment or excessive

bail is a civil rights claim . . ., not a habeas corpus claim

that affects the fact or duration of Petitioner’s present

confinement.”). Therefore, even if Draghi’s advice had been

wrong, which is not apparent, McGrath has shown no prejudice.

9 In his response to the Warden’s motion for summary judgment, McGrath adds a theory that by not having a probable cause hearing the state and Freeman were allowed to change the story of what happened several times. He also objects to Freeman’s testimony at the bail hearing. These issues were not approved by the magistrate judge and do not raise claims that can support the petition under § 2254.

24 See Olea v. Warden,

, at *4 (N.D. Cal. Mar. 2,

2015).

5. Police Reports and Freeman’s Statement

McGrath contends that Draghi’s representation was deficient

because he did not investigate the differences between Cruz’s

reports and Freeman’s witness statement (Claim 1.e). McGrath’s

claim focuses on Freeman’s description of the strangulation

incident, the timing of subsequent events, and who called the

police. The state court did not expressly address this claim.

As detailed in the Warden’s memorandum, the differences

between Freeman's statement, her testimony, and the police

reports are minor. Under the circumstances, Draghi’s failure to

investigate the differences or pursue them further at trial is

not deficient representation. Importantly, additional focus on

Freeman’s statements would have underscored the evidence against

McGrath. Further, McGrath has not and cannot show that any

additional focus on the differences would have resulted in a

favorable outcome.

In his objection to the motion for summary judgment,

McGrath also argues that Draghi should have objected to the

prosecutor’s leading questions to Freeman during her trial

testimony. He acknowledges, however, that when Draghi did

object to a leading question, the court overruled the objection

25 in the interest of saving time.10 Therefore, McGrath has not

shown that more objections to leading questions would have

changed the outcome of the case.

6. Interviewing Witnesses

In his response to the Warden’s motion, McGrath contends

that Draghi should have interviewed Freeman’s co-workers at

Cumberland Farms, the McGraths’ neighbors, and other witnesses

in order to discover evidence about the tick bite on Freeman’s

neck (Claim 1.f). He also argues that if Draghi had interviewed

a neighbor, Shyla Valley, he could have challenged Freeman’s

testimony about who smashed furniture and other belongings

inside the house on the night of the assault. The state court

did not expressly address this claim.

In the context of the due process claim, the state court

found that McGrath knew about the tick bite and knew the police

were involved in the incident. The court further found that

10 McGrath charges that the judge improperly cared more about his time spent in trial than McGrath’s freedom. In response to McGrath’s second state court filing, asserting ineffective assistance of counsel, the judge found that to the extent that filing was intended to be a motion for his recusal, the motion “asserts nothing more than the Defendant’s disagreement with this Court’s decisions in his case.” State v. McGrath, 2011-CR- 523, Dec. 23, 2014 (doc. no. 16). McGrath has not shown the state court misapplied the governing law pertaining to bias and recusal. See, e.g., Moussa v. Warden,

, at *12 (D.N.H. Mar. 30,2015); Plummer v. Cunningham,

, at *3 (D.N.H. Mar. 21, 2000).

26 Draghi credibly stated that McGrath never told him about the

tick bite incident. Without that information, it is not

apparent that Draghi would have learned about the tick bite by

interviewing the suggested witnesses. In addition, as the state

court found, evidence of the tick bite, which occurred more than

two months before the strangulation incident, would not have

helped the defense to counter the photographs that showed red

marks on both sides of Freeman’s throat.

McGrath argues that Freeman falsely testified that she did

not know the neighbor, Shyla Valley. He contends that Draghi

could have learned more about the details of the night of the

incident, including when things were smashed in the house, by

interviewing co-workers and neighbors. McGrath raises no

material issues that Draghi could or should have explored with

witnesses. His after-the-fact theories and quibbling with trial

testimony do not raise any matter that might have affected the

outcome of the criminal case.

Therefore, McGrath has not and cannot show that Draghi

provided deficient representation or that he suffered prejudice

for lack of additional witnesses.

7. Expert Testimony About Freeman’s Demeanor

McGrath contends that Draghi should have retained an expert

to provide testimony about Freeman’s demeanor on the evening of

27 the incident (Claim 1.g). He argues that Freeman’s demeanor did

not show that she was upset by the incident because she smiled

when she was photographed by the police. Although far from

clear, McGrath apparently believes that Freeman’s demeanor was

inconsistent with someone who had just gone through the assault

that she described.

The state court did not expressly address the claim McGrath

raises. Demeanor evidence may be admissible to address an issue

of fabrication. State v. Sulloway,

(2014).

On the other hand, as the Warden points out, the court would not

likely have ordered a psychiatric evaluation of Freeman’s

demeanor based on a smile in a photograph.

The defense had the photographs that McGrath says showed

Freeman smiling. Therefore, evidence of her demeanor was

available. McGrath makes no plausible argument that an expert,

such as a psychiatrist, would have testified that Freeman’s

demeanor shown in the photographs undermined the credibility of

her report of the assault. Further, in light of all of the

evidence, such expert testimony could not have changed the

outcome of the case.

8. Property Damage

McGrath contends that Draghi provided ineffective

assistance because he did not challenge the sufficiency of the

28 evidence of the value of the destroyed property and did not

investigate whether McGrath, rather than Freeman, owned the

property that was destroyed (Claims 1.h and 1.i). The claims

aim at his conviction on the misdemeanor criminal mischief

charges of damaging household items and breaking Freeman’s car

windshield and the restitution he was ordered to pay to Freeman.

For purposes of his conviction on the misdemeanor charges

under RSA 634:2, II-a, the state had to prove that McGrath,

without the right to do so, purposely or recklessly damaged the

property of another and caused or attempted to cause loss in

excess of $100. Freeman provided a list of damaged property and

testified about the damage and the values. In his objection to

summary judgment, McGrath lists certain values for damaged

property and appears to argue that the values Freeman claimed

are incorrect. He contends that Freeman changed some of the

items on the sheet and seems to suggest that Freeman falsified

the evidence.

McGrath provides no evidence to support his accusations.

The Warden explains in support of summary judgment that even

with discounted amounts the value of the damaged property was

more than $100. The Warden also points out that the defense

McGrath chose to pursue was that he had not damaged the

property, not that the damaged property was worth less than was

claimed.

29 To the extent McGrath is arguing that Draghi should have

challenged the values of the damaged property for purposes of

the restitution amount, he does not state a cognizable claim

under § 2254. Washington v. Smith,

(7th

Cir. 2009); Clastul Feliz v. Tritt,

, at *1, n.1

(E.D. Pa. June 29, 2016); Mercier v. Joyce,

, at

*1, n.1 (D. Me. Feb. 20, 2015); United States v. Robertson,

, at *4 (N.D. Ill. Jan. 15, 2016).

Therefore, McGrath has not shown that Draghi provided

ineffective assistance by failing to challenge the amounts

claimed for damaged property. In addition, even if challenged,

McGrath has not shown that the value would be less than $100.

McGrath asserts that Draghi was ineffective for failing to

show that Freeman did not own the damaged property (Claim 1.i).

In support of summary judgment, the Warden contends that

McGrath’s defense, as he requested it to be, was that he did not

damage the property, not that Freeman did not own the property.

For that reason, McGrath’s new argument that he destroyed his

own property would not have contradicted his chosen defense.

McGrath does not appear to pursue this claim in opposition to

summary judgment. Therefore, McGrath has not shown ineffective

assistance of counsel in Claim 1.i.

30 9. Criminal Mischief Charge

McGrath claims that Draghi was ineffective in explaining to

him the significance of changing the felony criminal mischief

charge to a misdemeanor (Claim 1.j). The claim was unclear when

presented to the state court, and the state court did not

address it.

In his objection to summary judgment, McGrath seems to

confuse the claim with his challenge to the value of the

property damaged. He states that he “was aware of why the

Felony was dropped to a misdemeanor because it was [McGrath] who

told Counsel that he was being charged twice for a windshield

but [McGrath] also pointed to cousel [sic] that other things on

victims [sic] inventory sheet were in pictures unbroken and he

never brought it to anyones [sic] attention other than [the

prosecutor.” He characterizes the issue as “theft by

deception.”

McGrath raises no cognizable claim based on the reduction

in the criminal mischief charge.

10. Hearsay

The Warden objects to Claim 1.k on the ground that it was

not exhausted. In response, McGrath says that the state court

“judge denied everything that came across his bench in regards

to State v. McGrath” but does not show that the claim was raised

31 in state court. Therefore, McGrath has not shown that the claim

was exhausted.

Further, if the claim were considered on the merits,

hearsay is a constitutional issue only when the challenged

testimony violates the Confrontation Clause of the Sixth

Amendment. See Linton v. Saba,

(1st Cir.

2016). Because McGrath fails to identify any testimonial

statements that violated the Confrontation Clause, he has not

provided a basis for evaluating ineffective assistance based on

Draghi’s alleged failure to object. In addition, he has not

shown the necessary prejudice even if such omissions occurred.

11. Defense

The claim allowed on preliminary review is that Draghi

failed to pursue the defense chosen by McGrath, which was that

he did not assault Freeman or cause the damage to the household

furnishings and Freeman’s car (Claim 1.l). This claim was not

addressed by the state court.

In his objection to summary judgment, McGrath acknowledges

that the defense he wanted to use was that he did not commit the

offenses charged. He does not argue that Draghi pursued a

different theory that was contrary to his requested defense.

Instead, McGrath presents the claim as a compilation of his

other complaints about Draghi’s representation. As such, this

32 is not a separate claim in support of the § 2254 petition and

provides no independent basis for relief.

None of the claims presented in Claim 1 provide a viable

basis for relief under § 2254.

Conclusion

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

judgment (document no. 47) is granted. Claims 1, 2, 3, 4, 5,

and 6.d are dismissed. The claims remaining in support of the

§ 2254 petition are Claims 6.a-c, 6.e-q, 7, and 8.

The Warden shall file a motion for summary judgment on the

remaining claims on or before August 19, 2016, or file an

amended answer that responds to the remaining claims and a

notice that a hearing will be required on the remaining claims.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

July 19, 2016

cc: Paul J. McGrath, pro se Elizabeth C. Woodcock, Esq.

33