UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

George Reid

v. Civil No. 13-cv-073-JD Opinion No.

Warden, Northern New Hampshire Correctional Facility

O R D E R

George Reid seeks a writ of habeas corpus pursuant to

, challenging his conviction in state court on

charges of aggravated felonious sexual assault and felonious

sexual assault. The Warden moves for summary judgment. Reid

objects. Certain procedural issues raised in Reid’s objection

were addressed previously in the court’s order issued on January

30, 2017, and those matters will not be addressed again in this

order.

Standard of Review

Summary judgment is used in habeas corpus proceedings under

§ 2254 when the issues raised may be decided on the available

record. See Fed. R. Civ. P. 81(a)(4); Fournier v. Warden,

, at *1 (D.N.H. Nov. 3, 2010). Based on the court’s

review of the record submitted, there is no need to expand the

record or to hold an evidentiary hearing. See Rules 7 and 8 of the Rules Governing Section 2254 Cases. Reid, who is

represented by counsel, has not moved to expand the record or

requested an evidentiary hearing. As explained in the court’s

prior order, although Reid raised an issue about discovery, he

did not seek leave of court to conduct discovery or provide good

cause to support a request for discovery. See Rule 6 of the

Rules Governing Section 2254 Cases. Therefore, Reid’s claims

may be decided based on the available record.

Motions for summary judgment may be considered under

Federal Rule of Civil Procedure 56, however, only to the extent

that the application of Rule 56 is not inconsistent with § 2254

and the Rules Governing Section 2254 Cases. Id.; Rule 12 of the

Rules Governing Section 2254 Cases; Perri v. Gerry,

, at *1 (D.N.H. May 29, 2014).

Relief under § 2254 is available only for claims for which

the petitioner has exhausted the remedies available in state

court. § 2254(b). On claims that were adjudicated on the

merits by the state court, the habeas court cannot grant the

writ unless the state court’s decision “was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court” or “was based

on an unreasonable determination of the facts.” § 2254(d). A

claim was adjudicated on the merits if “there is a decision

2 finally resolving the parties’ claims, with res judicata effect,

that is based on the substance of the claim advanced, rather

than on a procedural, or other, ground.” Moore v. Dickhaut,

(1st Cir. 2016) (internal quotation marks omitted).

Factual determinations made by the state court are presumed to

be correct. § 2254(e).

Background

Reid was convicted following a jury trial on two counts of

aggravated felonious sexual assault and two counts of felonious

sexual assault. He was sentenced in March of 2009 to twenty to

sixty years in prison. Reid appealed his conviction, and the

New Hampshire Supreme Court issued its decision affirming the

conviction on March 16, 2011. State v. Reid,

(2011).

The events that led to the charges against Reid began in

2003 when Reid was living with Lynn Benway. Benway’s

granddaughter, E.B., visited them several times a week and swam

in their swimming pool and hot tub. Reid on at least one

occasion was in the hot tub with E.B. while he was naked. He

pulled down E.B.’s bathing suit “and placed his penis between

her buttocks.” Reid,

. On at least one other

occasion, while E.B. slept in the bed with her grandmother and

3 Reid, Reid “pulled down E.B.’s pajama pants and put his penis

between her buttocks.”

When E.B.’s mother heard from someone else that Benway and

Reid walked around the house nude in E.B.’s presence, she asked

E.B. if she had seen them do that. E.B. said that she had seen

them nude and then told her mother about the abuse. E.B. told

investigators that Reid “penetrated her vagina with his penis

and his finger.”

E.B. was interviewed by an investigator,

Nancy Harris-Burovac, on May 6, 2004, and the interview was

videotaped. During the interview E.B. described the incidents

involving Reid.

Reid was first tried on sexual assault charges in 2008.

Before trial, Reid moved to dismiss the charges because E.B. had

no recollection of the incidents. Reid argued that the

videotaped interview was inadmissible hearsay and a violation of

the Confrontation Clause. The court ruled that the videotape

could be played at trial if E.B. testified. That proceeding

ended in a mistrial for other reasons.

Reid was retried on the sexual assault charges in January

of 2009. One of the prospective jurors was Carla Smith who

stated during jury selection that she could be biased because

she was a teacher and worked with children. After further

conversation with the judge and counsel, Smith agreed that

4 although she had strong feelings about children she could fairly

assess the evidence. Smith was allowed to serve on the jury.

During the trial, the prosecutor again attempted to

introduce the videotaped interview with E.B., contending that it

was a recorded recollection. E.B. testified that she remembered

the interview, that her memory was better at that time, that she

did not remember some of the incidents discussed in the

interview and specifically did not remember vaginal penetration.

The trial judge allowed the prosecution to play an edited

version of the interview videotape that related to the vaginal

penetration incidents.

On appeal, Reid challenged the ruling to allow the

videotaped interview. He argued that the videotape was not

admissible as a recorded recollection under the exception to the

hearsay rule. The New Hampshire Supreme Court ruled that the

trial court properly exercised its discretion in allowing the

videotape. The supreme court rejected Reid’s argument that the

videotape violated Sixth Amendment’s Confrontation Clause.

Reid also argued on appeal that the trial court should have

granted a mistrial based on the prosecutor’s introduction of

evidence that an investigator did not obtain a statement from

Reid. The investigator testified that he attempted to interview

Reid. Reid argued that the testimony was improper comment on

5 his silence in violation of his Fifth Amendment right to remain

silent. The trial court denied the motion for a mistrial but

offered to give a cautionary jury instruction, which Reid’s

attorney declined.

On appeal, the court concluded that the reference to an

attempt to interview Reid was “not a sufficiently clear

reference to the defendant’s invocation of his right to remain

silent so as to substantially prejudice him to the level

requiring a mistrial.” Reid,

. In addition, the

court noted that the trial court offered a cautionary

instruction, which the defense declined. The court also held

that the questioning which resulted in comment on the attempt to

interview Reid was not prosecutorial misconduct.

On March 12, 2012, Reid, who was represented by new

counsel, moved to set aside the verdict and for a new trial

based on claims of ineffective assistance of counsel.

Specifically, Reid charged that his trial attorney was

ineffective in failing to have testimony from an expert witness

to counter the prosecution’s witness who testified about the

evidence of sexual abuse of E.B., in failing to have Reid’s

physicians testify about his erectile dysfunction, in failing to

show that E.B. had recanted her charges against Reid, and in

failing to inform Reid about the prosecution’s offer of a guilty

6 plea. An evidentiary hearing was held on the motion in

September of 2012, and the court denied the motion in November

of 2012.

On appeal, Reid challenged only the ruling on the issue of

ineffective assistance of counsel in failing to investigate and

present evidence of Reid’s erectile dysfunction. The New

Hampshire Supreme Court declined to consider the appeal. The

court denied Reid’s motion to reconsider.

Reid filed the petition for relief in this court on

February 19, 2013. In July of 2013, Reid moved to stay the case

to allow him to pursue additional claims in state court. The

court administratively closed the case, with the provision that

it could be reopened by an appropriate motion.

Reid then returned to state court and filed a habeas

petition in which he claimed that his right to due process was

violated because of juror bias and misconduct and that counsel

was ineffective for failing to challenge the juror. His claims

were based on statements by the juror, Carla Smith.

The state court ruled that Reid’s claims of due process

violations due to juror bias and misconduct were procedurally

defaulted. The state court also ruled, as to all three claims,

that the evidence showed that the juror was not biased and did

not engage in misconduct. The court denied Reid’s motion for

7 reconsideration, and the New Hampshire Supreme Court declined

his appeal.

The habeas action in this court was reopened on March 16,

2016. Reid filed an amended petition on April 20, 2016. As

explained in the prior order, Reid did not clearly state all of

the claims he intended to bring in his amended petition.1 As

interpreted by the Warden and apparently intended by Reid, the

petition raises the following seven claims:

1. The trial court erred in admitting excerpts of the videotaped interview of E.B. (the alleged victim) as “recorded recollection” where the videotape constituted inadmissible hearsay and its admission violated the accused’s right to confrontation. A. The videotaped interview constituted inadmissible hearsay and was not within the Recorded Recollection exception to the Hearsay Rule. B. The admission of the videotaped interview violated Reid’s Right to Confrontation.

2. The trial court erred by denying Reid’s motion for a mistrial, after the prosecution produced testimony conveying that Reid had exercised his right to remain silent and not give a statement during the police investigation.

3. Defense counsel’s failure to investigate defendant’s erectile dysfunction and to present the testimony of his physicians on this issue was ineffective assistance of counsel.

4. In light of the statements of juror Carla Smith (hereinafter "Smith") during jury selection wherein she clearly indicated that she did not think she could sit and be impartial because of her conscious bias against Petitioner, should the trial court have excused her from service on the jury?

1 Reid is represented by counsel in this case.

8 5. Was trial counsel ineffective, in light of his failure to object to the seating of a self-confessed biased juror, or to contemporaneously inform and consult with his client about the juror, or to exercise a challenge and strike her from the jury for her obvious bias?

6. Should the conviction be vacated for the actions of Smith during trial and deliberations, which actions were juror misconduct in direct violation of the trial court's instructions and her oath as a juror?

7. Was Petitioner deprived of his rights to due process, a fair trial by an impartial jury, and the right to effective assistance of counsel, as guaranteed by Part I, Articles 15 and 35 of the New Hampshire Constitution, as well as the 5th, 6th, and 14th Amendments to the United States Constitution?

Discussion

The Warden moves for summary judgment on all of the issues

raised in the amended petition. Reid objects to summary

judgment.

A. Videotape of the Interview with E.B.

Reid contends that the trial court erred in admitting

excerpts from the videotaped interview under the recorded

recollection exception to the hearsay rule. He argues that the

videotaped interview did not meet the requirements of the

recorded recollection exception and that its admission into

evidence violated his right to confrontation under the Sixth

Amendment. The Warden moves for summary judgment on the grounds

9 that the videotaped interview was properly admitted under the

recorded recollection exception and that the state court

properly concluded that no violation of the Confrontation Clause

occurred.

1. Exception to Hearsay Rule

Relief under § 2254 requires a showing 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.” § 2254(d)(1). For

that reason, absent a due process violation, alleged errors in

evidentiary rulings under state law do not support relief under

§ 2254. See Swarthout v. Cooke,

, 219 (2011);

Jaynes v. Mitchell,

, 195-96 (1st Cir. 2016);

Almeida v. Dickhaut,

, at *4 (D. Mass. Mar. 17,

2015). Because Reid does not claim a due process violation,

there is no basis to consider the validity of the state court’s

evidentiary ruling.

2. Confrontation Clause

Reid also challenges the admission of excerpts from the

videotaped interview on the ground that the testimony shown in

the video violated his right to confrontation under the Sixth

Amendment. The New Hampshire Supreme Court held that no

10 Confrontation Clause violation occurred because E.B. was

available at trial for cross examination, relying on State v.

Legere,

(2008).2 The Warden contends among other

things that the videotape excerpts did not violate Reid’s

confrontation right because E.B. testified at trial and Reid’s

counsel asked her about her lack of memory of the events

addressed in the interview. In response, Reid states only that

the factual bases for his Confrontation Clause claim are

disputed and “should be considered by this Court.”

To the extent Reid intended to argue that the New Hampshire

Supreme Court’s decision was based on an unreasonable

determination of the facts, he has not carried the burden of

showing that to be true by clear and convincing evidence.

§ 2254(e). Reid does not even identify what facts are in

dispute. Therefore, there are no factual disputes related to

the Confrontation Clause claim to be considered by the court.

Reid also has not shown that the state court’s decision was

contrary to or an unreasonable application of federal law as

decided by the Supreme Court. Under Crawford v. Washington,

(2004), “[w]here testimonial statements are at

issue, the only indicium of reliability sufficient to satisfy

2 Neither the Warden nor Reid address the basis for the New Hampshire Supreme Court’s decision.

11 constitutional demands is the one the Constitution actually

prescribes: confrontation.” In his case, he was able to

confront E.B. because she testified. Therefore, Reid has not

shown that a Confrontation Clause violation occurred or that the

New Hampshire Supreme Court’s decision did not meet the

requirements of § 2254(d).

B. Mistrial

In support of his petition, Reid contends that the trial

court erred in denying his motion for a mistrial after the

prosecutor elicited testimony from a police investigator that

indicated Reid had exercised his right to remain silent by not

giving a statement to the investigator. The New Hampshire

Supreme Court held that the reference to Reid’s silence, as the

trial court found, was “not a sufficiently clear reference to

the defendant’s invocation of his right to remain silent so as

to substantially prejudice him to the level requiring a

mistrial.” Reid,

. The court also held that the

reference could have been cured with a jury instruction, which

Reid rejected, so that he was not entitled to a mistrial.

The Warden contends that the state court used the correct

legal standard for evaluating whether a mistrial was required

12 and properly applied the standard.3 In his objection, Reid again

states only that the factual basis for the claim is disputed and

should be considered by the court here.

As explained above, Reid does not identify what factual

dispute exists or provide clear and convincing evidence that the

New Hampshire Supreme Court’s decision was based on an

unreasonable determination of the facts. Because Reid is

represented by counsel, the court need not provide any

additional scrutiny that might be afforded to a pro se

petitioner. Therefore, Reid has not carried his burden under

§ 2254(d).

C. Juror Bias and Misconduct

Reid raises four claims arising from allegations about

juror Carla Smith. Reid’s claim of ineffective assistance of

counsel related to Smith is addressed in Part D below. Reid

also asserts that the trial court should have excused Smith from

serving on the jury because of her bias, that Smith engaged in

misconduct during her service on the jury, and that his due

process right to a fair trial was violated by Smith’s service on

the jury.

See, e.g., Caldwell v. Mississippi,

, 338-40 3

(1985)(discussing standard for mistrial); United States v. Apicelli,

(1st Cir. 2016) (providing standard for mistrial).

13 The Warden contends that the state court properly found

that Reid’s juror claims, other than the claim for ineffective

assistance of counsel, were procedurally defaulted, which bars

review by this court, and that Reid cannot overcome the

procedural default by showing cause and prejudice. The Warden

also contends that the state court properly determined on the

merits that Smith was not biased and that the evidence did not

show that Smith had engaged in misconduct. In his objection,

Reid argues that no procedural default occurred and that any

procedural default should be excused, but he does not address

the state court’s determination of the claims on the merits.

Procedural default of a claim in state court precludes

federal court review under § 2254 unless the petitioner can show

cause for the default and prejudice due to a violation of

federal law or that a miscarriage of justice will result from a

failure to consider the defaulted claims. Barbosa v. Mitchell,

(1st Cir. 2016); Logan v. Gelb,

, 72-

73 91st Cir. 2015). If the state court explicitly denied the

claim based on a state procedural bar, the federal court must

honor that decision even if the state court also provided an

alternative decision based on the merits. Harris v. Reed,

, 265 n.10 (1989); see also Escalante v. Watson,

(4th Cir. 2012); Alverson v. Workman,

1142, 1165 (3d Cir. 2010); Garcia v. Lewis,

(2d

Cir. 1999); Butler v. O’Brien,

, at *7 (D. Mass.

Feb. 18, 2010).

In this case, the state habeas court held that Reid’s

failure to raise the claims of juror bias and misconduct on

direct appeal waived habeas review of those claims.4 The court

considered Reid’s reasons for failing to raise the claims on

appeal and concluded that his explanations were unpersuasive.

The court held that Reid had procedurally waived the claims and

denied the claims based on procedural default. Alternatively,

the court considered the claims on the merits, stating that

“[e]ven if the Court were to find that Claims I and III were not

barred by the procedural default rule, the petitioner has not

met his burden of proof with respect to all three claims.”

Therefore, the state court denied the claims based on

procedural default. Reid argues that his default in state court

should be excused because of procedural complications in his

federal case. Cause to support excusing procedural default

“exists where something external to the petitioner, something

that cannot fairly be attributed to him impeded his efforts to

4 New Hampshire consistently applies the rule that issues, other than ineffective assistance of counsel, which are not briefed for purposes of direct appeal are waived. See Legere v. Reilly,

, at *6 (D.N.H. Mar. 10, 2015); Merritt v. Warden,

, at *3 (D.N.H. Mar. 11, 2004).

15 comply with the State’s procedural rule.” Maples v. Thomas,

(2012) (internal quotation marks omitted).

Reid argues that his federal case has been complicated

because it was administratively closed while he brought the

state habeas action to exhaust the juror claims. Any

complications here, however, have no bearing on why Reid failed

to raise the juror claims on direct appeal before this case was

filed. In addition, the state habeas court found that Reid’s

explanations for his failure to raise the juror claims on direct

appeal were unpersuasive. Reid has provided no grounds here

that would undermine that determination.

Because Reid’s claims that Carla Smith was biased and

engaged in misconduct are procedurally defaulted, they cannot be

considered here. Therefore, the claims numbered 4, 6, and 7 in

the background section above are denied as procedurally

defaulted.

D. Ineffective Assistance of Counsel

Reid contends that his trial counsel provided ineffective

assistance by failing to investigate and present evidence of

Reid’s erectile dysfunction and by failing to challenge juror

Carla Smith as biased. The Warden moves for summary judgment on

both claims, arguing that the state court correctly rejected

them.

16 1. Evidence of Erectile Dysfunction

Reid claims that his trial counsel provided

constitutionally deficient representation by failing to

investigate Reid’s erectile dysfunction and to present the

testimony of his physicians on that issue. Reid raised the

issue in his motion to vacate his conviction and for a new

trial. The Warden contends that the state court properly

rejected Reid’s claim. In response, Reid argues only that his

trial counsel should have introduced evidence of his erectile

dysfunction but does not address the state court’s decision on

the claim.

Reid’s trial attorney testified at the hearing on Reid’s

motion for a new trial that Reid’s wife told the attorney that

Reid had had erectile dysfunction for ten years and provided

releases that allowed the attorney to obtain Reid’s medical

records, which confirmed erectile dysfunction in 2007 and 2008.

The records for 2003 and 2004 when the alleged assaults occurred

could not be located.

In the decision denying Reid’s motion, the court noted that

E.B. had testified “in substance that the defendant had an

erection during the sexual assaults.” The court concluded,

based on a review of the medical records, that Reid would not be

17 able to show that he was prejudiced by his attorney’s failure to

introduce the medical evidence of erectile dysfunction. The

court noted that the records showed that Reid had “infrequent

erections.” Evidence of infrequent erections, the court found,

would not necessarily contradict E.B.’s testimony.

In addition, the court noted that Reid’s attorney had

raised an issue about Reid’s mental competence to stand trial.5

The court found that the medical records showed that during the

time before trial, when Reid claimed to be incompetent, he was

amply able to communicate with his medical care providers. The

court stated that if the medical evidence of erectile

dysfunction had been introduced the court would have found that

Reid was perpetrating a fraud on the court in pretending to be

incompetent and would have introduced that evidence to the jury

to show Reid’s consciousness of guilt. The court concluded that

evidence of Reid’s erectile dysfunction and his attorney’s

5 Although Reid argues in his objection to summary judgment that he was incompetent to stand trial and that his conviction should be overturned on that basis, he did not raise a claim of incompetence in his § 2254 petition. Therefore, that issue is not considered in support of his petition. Further, Reid provides no evidence to undermine the state court’s finding that “[i]t would have devastated the defendant’s case if the jury learned that he was dancing at a wedding and discussing his frustrations over erectile dysfunction with his physicians, while at the same time faking incompetence in court.”

18 failure to introduce the evidence did not undermine confidence

in the outcome of the case.

Reid provides no argument that the state court’s decision

was contrary to or an unreasonable application of federal law.

The state court analyzed Reid’s claim under the standard for

ineffective assistance of counsel provided by Strictland v.

Washington,

(1984), as that standard has been

applied by the New Hampshire Supreme Court. Reid also provides

no proof, much less clear and convincing proof, that the state

court’s factual determinations were unreasonable. Therefore,

the warden is entitled to summary judgment on Reid’s claim of

ineffective assistance of counsel based on a failure to present

evidence of his erectile dysfunction.

2. Failure to Challenge Carla Smith as a Juror

Reid asserts that his trial attorney provided

constitutionally deficient representation by failing to

challenge Smith as biased. The state habeas court found that

Reid had not proven that Smith was biased against him and

explained why Smith’s expressed concern about her feelings for

children did not show that she was biased against Reid. The

court also explained that the additional information obtained by

investigations conducted after the trial confirmed that Smith

was not biased. Based on the factual finding that Smith was not

19 biased, the court concluded that Reid could not show that his

trial attorney provided deficient representation in not

challenging her.

In his objection to summary judgment, Reid argues that

Smith was biased based on his own interpretation of the

evidence, which is contrary to the state court’s finding. To

succeed, Reid must show with clear and convincing evidence that

the state court’s finding was an unreasonable determination of

the facts. He makes no such showing. Instead, the evidence

supports the state court’s finding that Smith was not biased.

Reid has not shown that the state habeas court’s decision

was contrary to or an unreasonable application of federal law or

that the court’s factual finding was an unreasonable

determination of the facts. Therefore, the Warden is entitled

to summary judgment on Reid’s claim of ineffective assistance of

counsel based on a failure to challenge Juror Smith.

Conclusion

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

judgment (document no. 12) is granted. All claims in the

amended petition are resolved in favor of the Warden.

The court declines to issue a certificate of appealability

as the petitioner has failed to make a substantial showing of

the denial of a constitutional right. See

(c).

20 The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

February 22, 2017

cc: Sven D. Wiberg, Esq. Elizabeth C. Woodcock, Esq.

21