UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Gregory Maggi

v. Case No. 17-cv-253-PB Opinion No.

Warden, New Hampshire State Prison

MEMORANDUM AND ORDER

Gregory Maggi was convicted in New Hampshire state court for

sexually assaulting and distributing drugs to young girls. He filed a petition

for a writ of habeas corpus in this court pursuant to

, raising

various constitutional challenges to his conviction and sentence. The New

Hampshire State Prison Warden now moves for summary judgment on each

of Maggi’s claims. I grant the warden’s motion for summary judgment in part

and deny it in part, without prejudice to the warden’s ability to raise her

arguments in a renewed motion.

1 I. BACKGROUND 1

A. Underlying Facts

Beginning in 2009, Maggi obtained space in a facility in Ashland known

as “the Factory.” Jury Trial Tr. at 176, 1113. 2 Maggi’s rented space contained

an office, various cars, a “house bus,” a “party bus,” a work trailer, and two

large trampolines.

.

On October 31, 2010, eleven-year-old H.C. was spending time with a

friend behind the Factory when she was approached by Maggi. Id. at 329.

Maggi, who was then twenty-nine years-old, invited the girls inside to jump

on his trampoline. Id. at 329, 1107. Maggi and H.C. developed a friendship,

and H.C. eventually introduced Maggi to one of her friends, twelve-year-old

D.B. Id. at 208, 210, 330-31. Beginning in the summer of 2011, H.C. and D.B.

1 The following facts are drawn from the record before, and the decisions of, the state courts involved in Maggi’s trial, post-conviction litigation, and appeals. See Cullen v. Pinholster,

, 181 (2011).

2 For clarity and convenience, citations to “Doc. No. ___” refer to docket entries in the current case, Maggi v. Warden, No. 17-cv-253 (D.N.H. filed June 22, 2017); citations to “Motion Hr’g Tr.” refer to sequentially paginated transcripts of a motion hearing held on March 26 and 27, 2014 in Maggi’s trial court case, State v. Maggi, No. 215-2013-cr-55 (N.H. Sup. Ct. Dec. 22, 2014); citations to “Jury Trial Tr.” refer to sequentially paginated transcripts from Maggi’s trial, which was held August 25 through September 5, 2014, in State v. Maggi, No. 215-2013-cr-55 (N.H. Sup. Ct. Dec. 22, 2014); and citations to “Habeas Hr’g Tr.” refer to sequentially paginated transcripts from the hearing on Maggi’s petition for habeas corpus in Maggi v. Warden, No. 217-2017-cv-325 (N.H. Sup. Ct., Nov. 8, 2019). 2 went to the Factory several times a week to jump on Maggi’s trampolines. Id.

at 208, 213-14, 330-31. On at least one occasion that summer, Maggi served

alcohol to the young girls. Id. at 212-13, 331-33, 341. Maggi also provided

D.B. with a “white substance” that D.B. would snort through a straw and

that Maggi said was cocaine. Id. at 227-28.

In the fall of 2011, D.B. introduced Maggi to several of her other

friends, including M.D., J.M., and S.M, all of whom were between twelve and

fifteen years old. Id. at 353, 356, 537, 539, 720, 722. Maggi gave J.M. and S.M

his business card and told them that they could use his trampolines anytime.

Id. at 357-58, 539-40. The group of girls would visit Maggi at the Factory

frequently, where he would provide them with alcohol, marijuana, cocaine,

and crack cocaine. Id. at 368, 445, 491, 543-45, 564, 643-44, 649.

On one occasion, M.D. spent the night with Maggi in his “house bus.”

Id. at 234-36, 248. On another occasion, Maggi kissed J.M. and S.M. and told

them that he wished he could “do stuff” with them, but that he would “get in

a lot of trouble” because they were not “old enough.” Id. at 619-20. Maggi

showed J.M. and S.M. sex toys and pornography and, upon learning that J.M.

and S.M. were in a romantic relationship, encouraged the two girls to engage

in sexual acts with each another while he watched. Id. at 445, 553, 557, 563-

64, 647-49.

3 A few months later, in November 2011, Maggi started having sex with

S.M. and J.M. Id. at 460, 487. Maggi had sex with the girls individually and

together on multiple occasions and provided them with sex toys. Id. at 380-

81, 389-90, 487-91, 532-33, 554-59, 564-66, 634, 637. This continued until

approximately December 2011, when S.M. ended her relationship with J.M.

and stopped seeing Maggi. Id. at 561-62, 636-37. Maggi continued to have sex

with J.M. until she was grounded in January 2012 and could not leave to

visit Maggi for a month. Id. at 370, 423.

Once J.M. was no longer grounded, she visited Maggi to obtain

marijuana. Id. at 428-29, 441, 518. Before giving J.M. the drugs, Maggi put

his hands in J.M.’s pants and touched her vagina, even though she told him

no. Id. at 435-41, 518-21, 1092.

A few months later, in June 2012, D.B. and M.D. introduced their

friend, J.D., to Maggi. Id. at 662, 667, 679. J.D., who was twelve years old at

the time, went to the Factory on a few occasions. Id. at 660. On one occasion,

Maggi forcibly pulled J.D. onto his lap. Id. at 671-73, 733-35, 759. On another

occasion, Maggi served alcohol to J.D. and D.B. Id. at 662-63.

B. Investigation

A few months later, in the fall of 2012, J.D.’s father discovered

inappropriate Facebook messages between Maggi and his daughter. Id. at

698, 702. He alerted the other parents and provided the Facebook messages

4 to the police. Id. at 89-90, 315, 446, 528. The police spoke with J.M. and S.M,

who told the police that Maggi had sexually assaulted them and provided

them with drugs. Id. at 89, 307, 321, 569, 791. The girls provided the police

with various items that Maggi had given them, including sex toys, Maggi’s

business card, and a pair of his sweatpants. Id. at 791-92, 922-23.

The victims were later interviewed at the Child Advocacy Center (CAC)

in a recorded interview. In addition to speaking about the accusations against

Maggi, S.M. told the CAC investigator that, a few years ago, her uncle “raped

[her]” and made her sister “give him head.” Doc. 40-4 at 13-15. S.M. stated

that she thought her father “told . . . DCYF” and that DCYF “kind of asked

[her] about it.” Id. at 14. The CAC investigator stated that she was going to

look into the matter, although it is unclear what, if any, followup occurred.

Id.

In January 2013, the police spoke with Maggi in a recorded interview.

Maggi stated that he believed the police wanted to speak with him about

“various nefarious activities with children,” and admitted to spending time

with the group of young girls at the Factory. Jury Trial Tr. at 807-08. Maggi

admitted that J.M. and S.M spent the night with him in his bed but denied

having sexual contact with them or any other under-aged girls. Id. at 808-11.

Shortly after the interview, the police obtained a warrant and executed

a search of the Factory. Id. at 803-04, 855-57, 870, 966. The police recovered

5 Maggi’s computers and hard drives, as well as various sex toys and

pornographic videos. Id.

In February 2013, a grand jury indicted Maggi on 13 felony charges,

including three charges of aggravated felonious sexual assault, seven charges

of felonious sexual assault, two charges of endangering the welfare of a child,

and three charges of distribution of a controlled substance. Id. at 28-35.

Maggi was also charged with several misdemeanor offenses, including five

charges of simple assault and one charge of exposing minor to harmful

material. Id.

C. Criminal Proceedings

1. Pre-Trial Proceedings

Maggi initially retained Attorney Mark Sisti to represent him in the

criminal proceedings. Doc. 28 at 55. After obtaining several continuances,

Sisti withdrew from the case and Attorney Simon Mayo of the New

Hampshire Public Defender’s Office was appointed as counsel. Id. at 55-56.

Shortly thereafter, Maggi filed a motion for self-representation. Id. at 56. The

court held a hearing and granted Maggi’s motion after a lengthy colloquy

advising Maggi of his rights. Id. Attorney Adam Hescock of the New

Hampshire Public Defender’s Office was appointed as standby counsel. Id.

Attorney Michael Anderson also filed a limited appearance on Maggi’s behalf

to assist Maggi with certain motions. Id. at 58.

6 One of the motions filed by Maggi sought to question some of the

victims about aspects of their sexual past. Doc. 40-3 at 12; see State v.

Howard,

(1981) (noting that a defendant may admit

evidence of a witness’s “specific prior sexual activity” only “[u]pon a showing

of particular relevance”) (quoting State v. Johns,

(Utah 1980)). At the hearing on his motion, Maggi told the court that he

wished to question S.M. about the allegations she made to CAC against her

uncle, claiming that it was relevant to her “knowledge to fabricate.” Motion

Hr’g Tr. at 54.

The prosecutor, Assistant County Attorney (ACA) Melissa Pierce, told

the court that she had spoken with S.M. about the allegations during the

prior week. Id. at 55-56. ACA Pierce stated that S.M. “indicated” that her

uncle “touched her” on “her chest area” then “put her hand down into her

lap.” Id. at 56. S.M. denied, however, that “anything occur[ed] with [her]

uncle that was similar to what happened with Mr. Maggi” and stated that the

incident was never reported to the police. Id. ACA Pierce, not wanting to

traumatize S.M. further, did not ask for further details. Id.

Although Maggi did not have a transcript of S.M.’s CAC interview at

the hearing, he represented to the court that he believed S.M. had previously

“mention[ed] fellatio and sex” as well as “something about DCYF.” Id. at 58.

Maggi asserted that S.M. was now “saying completely different story,” and

7 that he should be permitted to question her on the matter. Id. Following the

hearing, the court issued a brief order denying Maggi’s Howard motion,

noting that it was both untimely and insufficiently specific to meet Maggi’s

burden of demonstrating that the allegations were relevant and more

probative than prejudicial. Doc. 40-3 at 3-4.

2. Trial Proceedings

Shortly after the motion hearing, Maggi retained Attorney Peter

Decato to take over his representation. Doc. 28 at 58. After a few more

continuances, the case proceeded to a jury trial.

At the trial, the State presented testimony from each of the victims, as

well as several other children who had spent time with Maggi at the Factory.

J.M. testified about having sex with Maggi approximately “every other day,”

both individually and with S.M. Jury Trial Tr. at 379-80. She also testified

that she witnessed Maggi have sex with S.M. and use “sex toys” on her. Id. at

381.

S.M. provided a similar account to the jury, stating that she had sex

with Maggi and engaged in “threesomes” with J.M. and Maggi on multiple

occasions. Id. at 557-59, 637. S.M. testified specifically about one occasion

when her friend, T.T., walked in on her and Maggi engaging in oral sex. Id. at

563-64. T.T. corroborated this account, testifying that she saw S.M. and

Maggi in “very close, intimate contact.” Id. at 1089.

8 On two separate occasions during the trial, Decato renewed Maggi’s

request to question S.M. about the allegations against her uncle. On the first

occasion, Decato represented to the judge that, according to Maggi, S.M.

“reported that she was raped” then “later said it didn’t happen.” Id. at 655.

Both the court and ACA Lara Saffo, the new prosecutor on the case,

questioned the accuracy of Maggi’s representations. Id. Because Decato did

not have with him a transcript of the CAC interview or ACA Pierce’s

statements to provide to the court as an “offer of proof,” the court declined to

revisit its prior ruling. Id. at 655-56.

Decato renewed his request again later in the trial, this time providing

the court with a transcript of S.M.’s CAC interview. Id. at 944. Decato

asserted that ACA Pierce had previously told the court that S.M. “recanted”

those allegations and argued that he should be able to use the recantation to

impeach S.M. Id. at 946. ACA Saffo again questioned whether it was true

that ACA Pierce told the court that S.M. recanted her allegations but stated

that, in any event, the court would have taken that into consideration in

issuing its initial ruling. Id. The judge rejected Decato’s request, noting that

Maggi had the relevant information “for a long, long time” and didn’t present

“anything new” to warrant re-opening the matter mid-trial. Id. at 949.

The State proceeded to present a number of other witnesses, including

D.B., who testified to her interactions with Maggi. Over Maggi’s objection,

9 the State entered into evidence Facebook messages between Maggi and D.B.

that contained sexual references and innuendo. Doc. 40-4 at 20. In one of the

messages, Maggi invited D.B. to come by the Factory, noting that he could

“think of a few fun things [they] can do” and that they could “find some toys

or something to play with.” Jury Trial Tr. at 243-44. In another message,

Maggi told D.B. that he “love[s] sex” and that “[s]ex is way too much fun.” Id.

at 247. D.B. then asked Maggi if he “d[id] anything” with M.D. the night that

M.D. slept over at the Factory. Id. at 248. Maggi responded “[n]othing all that

fun” and denied having kissed M.D., which Maggi stated “would have fallen

under the category of fun.” Id. Maggi told D.B. that he had “hop[ed] [D.B.]

would stay” that night, noting that he didn’t think M.D. “finds [him] all that

attractive.” Id.

The State also showed the jury the video of Maggi’s interview with the

police. Id. at 868. The video was partially redacted by order of the court based

on the court’s conclusion that some statements in the interview were

inadmissible. Doc. 40-4 at 11. For example, the court redacted references in

the interview to the victims’ consensual sexual activities with third parties

and Maggi’s refusal to take a polygraph test. Id. at 11-12. The jury

nonetheless saw substantial portions of Maggi’s interview, including portions

where he admitted to communicating with the witnesses over Facebook and

10 spending significant time with the young girls at the Factory. Jury Trial Tr.

at 1237-38, 1256, 1264.

At the close of the State’s case, Decato successfully moved to dismiss

two of the charges against Maggi for insufficient evidence. Id. at 1021, 1024.

In presenting Maggi’s defense as to the remaining charges, Decato focused

his efforts on undermining the victims’ credibility. Decato cross-examined

J.M. and S.M. at length and was able to highlight various inconsistencies in

their testimony and establish that they made some untruthful statements to

investigators. See, e.g., id. at 459-60, 617. Decato also called a number of

witnesses to testify about when Maggi removed the trampolines from the

Factory and the dates that the victims first disclosed the sexual assaults, in

an attempt to undermine the children’s timeline of events. See, e.g., id. at

1037, 1040.

Finally, Maggi took the stand in his own defense. Maggi denied the

allegations that he had had sexual relations with any of the victims or that

he provided them with drugs. He admitted to regularly exchanging Facebook

messages with D.B. but asserted that he did not send the sexually explicit

messages shown to the jury. Id. at 1137. Maggi attempted to assert that his

Facebook had been hacked, but he was prevented from doing so after the

State objected. Id. at 1137-38.

11 Maggi then addressed the video of his interview and asserted that it

did not reflect his “complete interview.” Id. at 1188. Maggi noted that the

video omitted his multiple requests to speak with a lawyer and that “there

[were] other things in the interview that went completely missing.” Id. Maggi

then testified about how the “pixel size” in the video was suspicious and that

he believed someone “opened [the video] up in an editing software, remove[d]

the parts they didn’t want anyone to see, and then re-film[ed] it so that you

couldn’t see it in the metadata.” Id. Maggi concluded by stating that “[t]here

were parts [of the video] that were redacted by the Court, and there were

parts that were illegally removed,” at which point the State objected. Id. at

1188-89.

At sidebar, the prosecutor argued that Maggi’s testimony

inappropriately conveyed to the jury that the State was “redacting stuff

inappropriately.” Id. at 1189. The court agreed that, because Maggi was not

qualified to testify about technical aspects of the video, he was “engaging in

conjecture and speculation,” and his testimony was “completely

inadmissible.” Id. at 1189-90. The court agreed to give a curative instruction,

without objection. Id. at 1192.

The following day, the court informed the jury that the video had, in

fact, been redacted pursuant to a court order and that the jury was “not to

12 consider Mr. Maggi’s testimony on that subject at all” or “speculate as to

what” was redacted from the video. Id. at 1235.

The defense rested at the close of Maggi’s testimony and delivered

closing arguments. Decato’s arguments principally focused on calling into

question the children’s testimony, telling the jury that the case came down to

who they “f[ound] most believable.” Id. at 1316.

Following two days of deliberation, the jury found Maggi guilty of seven

counts of felonious sexual assault, three counts of distribution of a controlled

drug, and two counts of simple assault. Id. at 1379-88. Maggi was sentenced

to five 3.5 to 7 year prison sentences to run consecutively, for a total sentence

of 17.5 to 35 years in prison.

3. Appellate Proceedings

Following Maggi’s conviction, Decato filed a notice of mandatory appeal

with the New Hampshire Supreme Court raising four claims of error. Doc. 1-

1 at 3. Decato eventually withdrew from the case, and Attorney David

Rothstein entered an appearance on Maggi’s behalf. Doc. 28 at 62.

Rothstein submitted a brief to the New Hampshire Supreme Court that

did not address the issues raised in Decato’s notice, but rather briefed three

distinct issues. Specifically, Rothstein asserted that the trial court erred by

(1) prohibiting Maggi from cross-examining S.M. about her recanted sexual

assault allegations, (2) allowing the state to introduce Maggi’s Facebook

13 messages with D.B. into evidence, and (3) instructing the jury to disregard

Maggi’s testimony that the video had been impermissibly edited. Doc. 40-1 at

5. Maggi sought leave to file a pro se supplemental brief raising nine

additional issues, but his request was denied. Doc. 28 at 31-34.

The New Hampshire Supreme Court entered an order rejecting Maggi’s

claimed errors and affirming his conviction. Doc. 1-3. In considering Maggi’s

claim that he should have been permitted to ask S.M. about her recantation,

the court first noted that “the record is not clear that S.M. recanted a prior

sexual assault allegation” because ACA Pierce never clarified what S.M.

meant when she stated that what happened with her uncle was not “similar

to” what happened with Maggi. Id. at 1. The court nonetheless declined to

resolve the matter, instead concluding that any error in excluding cross-

examination was harmless beyond a reasonable doubt. Id. The court reasoned

that, in light of the overwhelming evidence of Maggi’s guilt—including, most

notably, the victims’ corroborated testimony and eyewitness accounts of

abuse—the “impeachment value of cross-examining S.M. concerning her

recantation. . . would not have affected the verdict.” Id. at 2.

The court also concluded that the trial judge acted within his discretion

in admitting the Facebook conversations with D.B., noting that the messages

were relevant to Maggi’s “sexual intent” towards the victims and not unduly

prejudicial. Id. at 4. Finally, the court affirmed the trial judge’s instruction to

14 disregard Maggi’s testimony about the taped interview. Id. at 5. The court

noted that, viewed in context, the instruction did not require the jury to

disregard any testimony from Maggi that was “based on his recollection [of

the interview], the video recording” was impermissibly edited. Id. (emphasis

in original). Rather, the instruction only required the jury to “disregard his

testimony about the court-ordered redactions.” Id. Accordingly, the court

concluded that, contrary to Maggi’s arguments on appeal, he had been

permitted to testify “about his recollection of the interview.” Id. (emphasis in

original).

Rothstein filed a motion asking the court to reconsider its order, which

the court denied. Doc. 1-4 at 1.

D. State Habeas Proceedings

Attorney Sven Wiberg filed a habeas corpus petition on Maggi’s behalf

in New Hampshire Superior Court (state habeas court) pursuant to N.H. Rev.

Stat. Ann § 534:1. See Petition for Writ of Habeas Corpus, Maggi v. Warden,

No. 217-2017-cv-00325 (N.H. Sup. Ct., Nov. 8, 2019) (hereinafter “State

Petition”). 3 The petition principally asserted that Maggi received

constitutionally ineffective assistance of counsel from Decato, Rothstein, and

3 Maggi’s state habeas petition was not submitted in the record but is nonetheless subject to judicial notice. See Fed. R. Evid. 201; Stan Lee Media, Inc. v. Walt Disney Co.,

, 1298 n.2 (10th Cir. 2014). 15 his various pre-trial attorneys. Id. at 2-6. In addition, Maggi argued that the

state trial court had “effectively” denied Maggi his right to represent himself.

Id. at 6.

The state habeas court held an evidentiary hearing on Maggi’s petition

over the course of seven days. Doc. 28 at 54. Maggi testified on his own behalf

for four of those days. Towards the end of Maggi’s testimony, the proceedings

were stayed for a period of time so that Wiberg could obtain additional

information about Maggi’s mental health. Habeas Hr’g Tr. at 515-17, 520.

When the proceedings resumed, Wiberg withdrew from the case and

Maggi began representing himself with some assistance from his sister,

Attorney Katherine Maggi. Id. at 534-35. Maggi called Decato and Rothstein

to the stand, who testified at length about their litigation strategies and

interactions with Maggi. Id. at 653, 783. Maggi then called a family member

who was present for his trial to discuss her observations of counsel’s

interactions with Maggi. Id. at 538.

The court subsequently issued a thirty-three-page decision denying

Maggi’s habeas claims. Doc. 28 at 54-86. The court summarily denied Maggi’s

claims regarding the assistance of his pre-trial counsel, noting that there was

no “legal or factual support” for Maggi’s assertions and that Maggi “presented

no evidence that any of his pre-trial counsel were deficient or that they

prejudiced the outcome of his trial.” Id. at 64. Turning to Maggi’s claims

16 against Decato, the court found that Decato was not constitutionally

ineffective at trial. The court reasoned that Decato’s decisions were

reasonable strategic choices and, in any event, did not prejudice Maggi since

the actions Maggi faulted Decato for failing to take were largely baseless or

legally flawed. Id. at 67-69. The court further found that, contrary to Maggi’s

assertion, Decato had not impermissibly truncated Maggi’s trial in order to

prioritize a different trial. Id. at 81-82. The court similarly rejected Maggi’s

claims against Rothstein, pointing to evidence from the hearing that

Rothstein consulted with Maggi regularly and made reasonable strategic

decisions about which claims to prioritize on appeal. Id. at 83-84. Finally, the

court concluded that Maggi was not denied the right to represent himself. To

the contrary, the court found that Maggi was “afforded the right and

opportunity to represent himself” and “exercised that right until he decided to

proceed with counsel.” Id. at 84-85.

Maggi filed a notice of appeal with the New Hampshire Supreme Court

challenging the state habeas court’s order and asserting various other errors

arising out of his criminal trial. Id. at 96-101. The New Hampshire Supreme

Court declined Maggi’s appeal. Id. at 103.

E. Federal Habeas Proceedings

Maggi filed his habeas corpus petition in this court shortly after he

filed his state court petition. He then successfully moved to stay proceedings

17 in this court until the conclusion of the state habeas proceedings. Doc. 3.

While the stay was in place, Wiberg withdrew as counsel and Maggi entered

a notice of pro se appearance. Doc. 13; Doc. 9.

Once the stay was lifted, Maggi filed an amended petition in this court,

which the court construed as raising over eighty distinct claims. Doc. 31 at 4-

17. Maggi’s claims fall into three broad categories. First, Maggi raises several

claims challenging rulings made by the trial court throughout his criminal

proceedings as violative of his Fifth Amendment, Sixth Amendment, and

Fourteenth Amendment rights. Second, Maggi raises claims of ineffective

assistance of counsel against his pre-trial attorneys, Decato, and Rothstein.

Finally, Maggi asserts that the State’s prosecutors engaged in various forms

of misconduct. The Warden has moved for summary judgment on all of

Maggi’s claims. Doc. 49.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the record reveals “no genuine

dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a); Tang v. Citizens Bank, N.A.,

(1st Cir. 2016). In this context, a “material fact” is one that has the

“potential to affect the outcome of the suit.” Cherkaoui v. City of Quincy,

(1st Cir. 2017) (quoting Sanchez v. Alvarado,

(1st Cir. 1996)). A “genuine dispute” exists if a factfinder could resolve the

18 disputed fact in the nonmovant’s favor. Ellis v. Fid. Mgmt. Tr. Co.,

(1st Cir. 2018).

The movant bears the initial burden of presenting evidence that “it

believes demonstrate the absence of a genuine issue of material fact.” Celotex

Corp. v. Catrett,

(1986); accord Irobe v. U.S. Dep’t of Agric.,

(1st Cir. 2018). Once the movant has properly presented

such evidence, the burden shifts to the nonmovant to designate “specific facts

showing that there is a genuine issue for trial,” Celotex,

, and

to “demonstrate that a trier of fact could reasonably resolve that issue in [his]

favor.” Irobe,

(quoting Borges ex rel. S.M.B.W. v. Serrano-

Isern,

(1st Cir. 2010)). If the nonmovant fails to adduce such

evidence on which a reasonable factfinder could base a favorable verdict, the

motion must be granted. Celotex,

. In considering the

evidence, the court must draw all reasonable inferences in the nonmoving

party’s favor. Theriault v. Genesis HealthCare LLC,

(1st

Cir. 2018).

III. ANALYSIS

Section 2254 enables a federal court to grant habeas corpus relief “only

on the ground that [a person] is in custody in violation of the Constitution or

19 laws or treaties of the United States.” 4

(a). Maggi asserts

that his conviction is tainted by various constitutional violations arising out

of the trial court’s rulings, the constitutionally deficient performance of his

attorneys, and the misconduct of the State’s prosecutors.

Some of Maggi’s claims were previously adjudicated by the New

Hampshire Supreme Court, whereas others were adjudicated by the state

habeas court during Maggi’s state habeas proceedings. I begin by analyzing

the claims that have already been expressly considered by the state courts

before proceeding to Maggi’s remaining claims.

A. Claims Adjudicated in State Court

Under the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), if a state court has adjudicated a petitioner’s claims on the merits,

habeas relief is warranted only if the adjudication (1) “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), or

(2) “was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding,” id. § 2254(d)(2). The

4 Several of Maggi’s claims are based on alleged errors that pertain to charges that did not result in a conviction or a custodial sentence. Because Maggi is not “in custody” on those charges, his challenges to those charges must be dismissed. Claims A(2); B(4)(f)(ii); B(4)(g); B(4)(h); B(4)(i)(ii); B(4)(j); B(4)(k). 20 petitioner bears the burden of proving that the state court’s adjudication was

unreasonable under this “highly deferential standard.” Cullen, 563 U.S. at

181 (quoting Woodford v. Visciotti,

(2002) (per curiam)).

A state court adjudication is contrary to clearly established federal law

if the court “applies a rule that contradicts the governing law set forth by the

Supreme Court or confronts a set of facts that are materially

indistinguishable from a decision of the Supreme Court and nevertheless

arrives at a result different from its precedent.” Chum v. Coyne-Fague,

(1st Cir. 2020) (cleaned up). A state court’s decision

unreasonably applies clearly established federal law if the state court

“identifies the correct governing legal principle from the Supreme Court’s

then-current decisions but unreasonably applies that principle to the facts of

the prisoner’s case.” Abrante v. St. Amand,

(1st Cir. 2010)

(quoting Aspen v. Bissonnette,

(1st Cir. 2007)). To be

unreasonable, a state court's application of existing federal law must be

“more than incorrect or erroneous.” Rosenthal v. O’Brien,

(1st Cir. 2013) (quoting Yeboah-Sefah v. Ficco,

(1st Cir.

2009)). Rather, the state court’s application of existing legal principles must

be “so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded

disagreement.” Virginia v. LeBlanc,

(2017) (per curiam)

21 (quoting Harrington v. Richter,

(2011)).

In determining whether a state court decision is based on an

unreasonable determination of the facts, federal courts must defer to state

court fact finding when “[r]easonable minds reviewing the record might

disagree about the finding in question.” Quintanilla v. Marchilli,

(1st Cir. 2023) (quoting Brumfield v. Cain,

(2015)). 5

1. Trial Court Rulings

Maggi asserts that the trial court made two evidentiary rulings that

violated his Sixth and Fourteenth Amendment rights: First, he challenges

the court’s decision to prevent him from cross-examining S.M. about what he

claims is her recanted allegation that she had been sexually assaulted by her

uncle; and second, he challenges the court’s instruction to the jury to

disregard testimony Maggi attempted to give about redactions to a taped

statement he gave to the police. Both alleged errors were considered and

ultimately rejected by the New Hampshire Supreme Court on Maggi’s direct

appeal from his conviction. 6 Because Maggi appears to have challenged the

5 Section 2254(e)(1) provides that a state court’s factual determination “shall be presumed to be correct,” and “[t]he applicant shall have the burden of rebutting the presumption of correctness by ‘clear and convincing evidence.’” Because it remains an open question in this court how subsections (d)(2) and (e)(1) “fit together,” Quintanilla,

, I base my analysis of Maggi’s’ claims only on the standard set forth in subsection (d)(2).

22 trial court’s rulings in state court only under state evidentiary law, the New

Hampshire Supreme Court did not expressly consider whether the trial

court’s rulings violated Maggi’s federal constitutional rights. Nonetheless, as

I will explain, the New Hampshire Supreme Court’s reasonable findings of

fact and conclusions of law are entitled to deference and effectively dispose of

both claims. See Foxworth v. St. Amand,

(1st Cir. 2009).

The New Hampshire Supreme Court rejected Maggi’s challenge to the

trial court’s ruling on S.M.’s recantation testimony by concluding that, even if

the ruling was in error, the error was nonetheless “harmless beyond a

reasonable doubt.” Doc. 1-3 at 1. Although framed as a conclusion of state

law, the New Hampshire Supreme Court’s decision is nonetheless “entitled to

deference under section 2254(d)(1) as long as the state and federal issues are

for all practical purposes synonymous and the state standard is at least as

protective of the defendant’s rights.” Scott v. Gelb,

(1st Cir.

6 The New Hampshire Supreme Court also ruled on Maggi’s claim that the trial court erred by admitting Maggi’s Facebook conversations with D.B. into evidence. Doc. 1-3 at 3-4. The court’s ruling was based purely on state evidentiary law and bears no connection to Maggi’s constitutional claim. For the reasons I explain in Part B of this order, I cannot determine on the present record whether Maggi properly exhausted his claims that the admission of this evidence was a constitutional error. Accordingly, the warden’s motion for summary judgment as to those claims is denied without prejudice. Claims A(3)(d)-(e). 23 2016) (cleaned up); see also Strickland v. Goguen,

, 54 n.14 (1st Cir.

2021).

Here, the court applied a state law harmless-error standard that is the

functional equivalent of the federal harmless-error standard established in

Chapman v. California,

(1967). See

(“[B]efore a federal

constitutional error can be held harmless, the court must be able to declare a

belief that it was harmless beyond a reasonable doubt.”). In Mitchell v.

Esparza,

(2003) (per curiam), the Supreme Court held that

where, as here, “a state court determines that a constitutional violation is

harmless, a federal court may not award habeas relief under § 2254 unless

the harmlessness determination itself was unreasonable.” Fry v. Pliler,

(2007) (emphasis in original) (summarizing Esparza).

Therefore, the determinative question is whether the New Hampshire

Supreme Court’s conclusion that any error was harmless beyond a reasonable

doubt “was an unreasonable application of Chapman.” Connolly v. Roden,

(1st Cir. 2014); cf.

(concluding that, where a

state supreme court found an error to be “harmless under a standard

equivalent to the federal standard under Chapman,” the state’s decision was

entitled to deference so long as the decision was not “an unreasonable

application of Chapman”).

24 Maggi has not cited to any Supreme Court case law that is contrary to

the New Hampshire Supreme Court’s harmlessness ruling, which was a

plainly reasonable decision under federal law. The New Hampshire Supreme

Court appropriately considered the facts presented at trial and the “strength

of the parties’ cases” in determining that the error was harmless beyond a

reasonable doubt. See

. In doing so, it supportably found that, given

the corroborating testimony from J.M and T.T. that they witnessed Maggi’s

abuse of S.M., the impeachment evidence would not have altered the jury’s

verdict. Cf. United States v. Connolly,

, 217 & n.6 (1st Cir. 2007)

(“[T]he force of impeachment evidence is diminished when the witness’s

testimony is supported by substantial corroborating evidence[.]”).

Accordingly, Maggi is not entitled to habeas relief on this claimed error. 7

7 My conclusion would be the same even if I were to analyze Maggi’s claims de novo under the “actual prejudice” standard established in Brecht v. Abrahamson,

(1993). Under Brecht, a petitioner is not entitled to habeas relief unless he can establish that the trial court’s error “had substantial and injurious effect or influence in determining the jury’s verdict.”

at 623 (quoting Kotteakos v. United States,

(1946)). Specifically, Maggi is not entitled to relief for this alleged violation of his constitutional rights because he cannot establish that the trial court’s decision to exclude evidence of S.M.’s alleged recantation resulted in actual prejudice considering the overwhelming evidence against him, including, most notably, (1) the eyewitness accounts of the alleged assaults, (2) the substantial consistency between J.M. and S.M.’s testimony on the graphic details of the assaults, (3) the sex toys and pornography recovered from the Factory, which were consistent with J.M. and S.M.’s testimony, and (4) Maggi’s own statements, where he corroborated significant portions of S.M.’s

25 Maggi next asserts that the trial court violated his constitutional rights

when it instructed the jury to disregard his testimony that the video of his

police interview had been illegally altered. The New Hampshire Supreme

Court rejected Maggi’s characterization of the jury instruction and noted

that, viewing the instruction in context, the jury was only prohibited from

considering Maggi’s testimony about the court-ordered redactions. 8 Doc. 1-3

testimony. Maggi’s claims therefore fail under either standard. See Connolly,

.

8 The full instruction given to the jury was as follows:

Yesterday, during the Defendant’s testimony, Defendant, Mr. Maggi, testified that the Court had redacted portions of his videotape interview at the police department with the state police, which you have seen. Mr. Maggi is correct.

Certain minor portions of his interview were redacted by court order after a hearing in which both parties had input. The court determined as a matter of law that certain extraneous parts of the interview were inadmissible evidence. That was a ruling made after both parties had input. You are not to consider Mr. Maggi’s testimony on that subject at all. It is stricken from the record.

And you are not—I am instructing you not to speculate as to what that evidence was or was not. It’s not before you. It is extraneous information that is not evidence, has not been presented as evidence in this courtroom. And you are not to—it was a decision by the Court, a ruling by the Court as a matter of law and you are not to give it any prejudice or weight in favor or against either party as a result of that ruling.

Jury Trial Tr. at 1235-36.

26 at 4-5. As the New Hampshire Supreme Court recognized, the prosecutor’s

objection was focused on Maggi’s assertion that “the Court redacted

something.” Jury Trial Tr. at 1191. Accordingly, the trial court’s instruction

spoke only of the court-ordered redactions and required the jury to disregard

“Maggi’s testimony on that subject,” without addressing the other portions of

Maggi’s testimony. Id. 1235 (emphasis added). Therefore, the court concluded

that the instruction left Maggi’s testimony that the video was incomplete

intact.

Maggi has not presented a persuasive argument to support his

contention that the Supreme Court’s resolution of his issue was based on an

unreasonable application of the facts. Instead, the record support the

reasonableness of the court’s determination that the trial court’s limiting

instruction was carefully crafted to prevent the jury from concluding that the

court had improperly ordered redactions to Maggi’s police statement without

limiting Maggi’s ability to testify as to his own recollection of his interview.

For these reasons, Maggi’s claims challenging the New Hampshire

Supreme Court’s rulings must be dismissed. 9

9 Claims A(3)(c); A(6)(a). 27 2. Ineffective Assistance of Counsel

Maggi claims that he received ineffective assistance of counsel in

violation of the Sixth Amendment. See Strickland v. Washington,

(1984) (recognizing the right of a criminal defendant to the

“assistance of counsel”). “To establish that a lawyer’s performance fell below

the constitutional norm, a [petitioner] must make a two-part showing.” Miller

v. United States,

(1st Cir. 2023). First, the petitioner must

demonstrate that his counsel’s performance “was objectively unreasonable

under prevailing professional norms.” United States v. Mercedes-De La Cruz,

(1st Cir. 2015). In making this determination, courts must

apply “a strong presumption—albeit a rebuttable one—that counsel’s choices

among available courses of action fall within the wide range of reasonable

professional assistance that, under the circumstances, might be considered

sound strategy.” Miller,

(cleaned up). It is only where “counsel’s

choice was so patently unreasonable that no competent attorney would have

made it” that counsel’s performance will be deemed deficient. Flores-Rivera v.

United States,

(1st Cir. 2021) (quoting Rossetti v. United

States,

(1st Cir. 2014)).

Second, the petitioner must demonstrate that “he was prejudiced by

counsel’s deficient representation.” Rivera-Rivera v. United States,

(1st Cir. 2016). “To establish prejudice, the defendant must show

28 that, but for counsel’s unprofessional error, there is a reasonable probability

that the result of the proceeding would have been different.” Sleeper v.

Spencer,

(1st Cir. 2007).

Because most of Maggi’s ineffective assistance of counsel claims were

considered by the state habeas court, Maggi is only entitled habeas relief if he

can demonstrate that the court’s conclusions were legally or factually

unreasonable. 10

a. Trial Counsel

Maggi argued in his state habeas corpus petition that Decato was

constitutionally ineffective for multiple reasons. Among other things, he

argued that Decato failed to notice certain affirmative defenses, failed to file

certain motions, failed to object to evidence introduced at his trial, failed to

call witnesses, failed to obtain a continuance, and failed to effectively cross-

examine witnesses. The state habeas court granted Maggi a lengthy

evidentiary hearing on these issues and rejected Maggi’s arguments in a

10 Maggi sought to appeal the state habeas court’s decision to the New Hampshire Supreme Court, but his appeal was summarily rejected. In such a case, there is a rebuttable presumption that “the unexplained decision adopted the same reasoning” as a lower court’s reasoned opinion. Wilson v. Sellers,

(2018); see also Ylst v. Nunnemaker,

(1991). Accordingly, I “look through” the New Hampshire Supreme Court’s unexplained decision and instead consider the reasonableness of the state habeas court’s decision as “the last related state-court decision that [provided] a relevant rationale.” Wilson,

. 29 detailed, carefully reasoned written decision. Doc. 28 at 65-82. The state

habeas court’s conclusions on these issues are well supported by both the

trial record and the testimony taken at the evidentiary hearing. Moreover,

the court reasonably applied the Strickland test, which federal courts have

recognized cannot be satisfied by the failure to take actions that “had no

chance of success.” United States v. Carter,

(6th Cir. 2004).

Accordingly, I grant respondent’s motion for summary judgment with respect

to these claims. 11

Maggi next asserts that Decato failed to effectively respond to a mid-

trial disclosure by the prosecutor that certain witnesses had changed their

accounts of some of the charged conduct. Although Maggi claims that Decato

should have moved to exclude the testimony or sought a mistrial, the state

habeas court concluded that Decato’s decision to instead use the changed

details to impeach the witnesses was a reasonable one. The court explained

that Decato made effective use of this impeachment material to undermine

the witnesses’ credibility which, after all, was the principal strategy at trial.

Doc. 28 at 71-72.

Notably, Maggi agrees that Decato “did an able job of demonstrating

reasonable doubt” using the changed testimony and only faults him because

11 Claims B(2); B(4)(i)(i),(iii)-(iv); B(4)(l)-(p); B(4)(s); B(4)(t); B(9); B(11); B(14)-(18). 30 that strategy was not ultimately successful. Doc. 61 at 48. Of course, that a

trial strategy was ultimately unsuccessful does not mean that it was

unreasonable. Strickland,

. Because the court

reasonably applied federal law in rejecting Maggi’s claims, those claims are

dismissed. 12 Middleton v. Roper,

(8th Cir. 2006) (noting

that courts must “give great deference to counsel’s informed strategic

decisions” and refrain from “second-guess[ing] a lawyer’s trial strategy”)

(quoting Laws v. Armontrout,

(8th Cir. 1988)).

Maggi further argues that Decato was ineffective for failing to obtain

and present surveillance footage from the security cameras at the Factory.

Relying on testimony from the criminal trial, the court concluded that the

Factory’s surveillance tapes were programmed to “self-eras[e]” after a few

days and therefore would not have contained any “relevant data” when they

were “collected months after the assaults.” Doc. 28 at 78. Maggi does not cite

to any evidence sufficient to call into question the court’s conclusion.

In light of this supported factual determination, the court reasonably

concluded that Decato was not constitutionally deficient for failing to obtain

or present the security footage. After all, counsel cannot be ineffective for

failing to enter into evidence that which does not exist. Lewis v. Horn, 581

12 Claims B(7)(a)-(c); B(8).

(3d Cir. 2009). Maggi’s claims as to this issue are therefore

dismissed. 13

Finally, Maggi argues that Decato impermissibly truncated his

presentation of Maggi’s defense in order to prioritize a different trial. The

state habeas court found that, although it was true that Decato had another

trial set to begin shortly after Maggi’s, there was no evidence that he

prematurely truncated Maggi’s trial to attend to his other trial. Doc. 28 at 81-

82. The court noted that, to the contrary, there was evidence in the record

that Decato prioritized Maggi’s trial over his upcoming trial. Maggi cites only

to evidence that Decato spoke frequently of his upcoming trial but fails to

demonstrate by clear and convincing evidence that the court’s findings were

unreasonable. Deferring to the court’s reasonable findings of fact, Maggi’s

claims on this issue necessarily fail. 14

b. Appellate Counsel

Maggi similarly challenges Rothstein’s performance on appeal, arguing

that he failed to appropriately investigate Maggi’s case or consult with Maggi

and trial counsel. Maggi further asserts that Rothstein’s failure to raise

certain issues in his appellate brief was constitutionally deficient.

13 Claims B(1); B(10). 14 Claims A(7); B(12); B(13). 32 The state habeas court considered and rejected each of these claims.

The court concluded that, because Maggi did not specify what investigation

Rothstein should have undertaken or how that would have changed the

outcome of his appeal, he did not meet his burden of demonstrating that

Rothstein was ineffective. Id. at 83. Turning to Maggi’s next claimed error,

the court cited to testimony from the hearing that Rothstein did, in fact,

frequently confer with Maggi and trial counsel and that, in any event, Maggi

did not demonstrate that any alleged failure to communicate resulted in

prejudice. Id. at 83-84. Finally, the court concluded that Rothstein reasonably

applied his substantial experience in choosing which issues to brief to the

New Hampshire Supreme Court. Id. at 84.

Maggi has failed to articulate what investigation or communication

Rothstein should have undertaken, let alone demonstrate that the court’s

ruling on this matter was unreasonable. Although Maggi identifies certain

issues that he believes Rothstein should have briefed, he has not

demonstrated that Rothstein’s contrary choices were patently unreasonable.

See Jones v. Barnes,

(1983) (noting that attorneys are

not required to “raise every nonfrivolous issue requested by the client” on

appeal and emphasizing the “importance of winnowing out weaker

arguments on appeal” in order to focus on “a few key issues”). Accordingly, I

33 defer to the state habeas court’s reasonable application of federal law and

dismiss Maggi’s claims challenging Rothstein’s performance. 15

3. Right to Self-Representation

Finally, Maggi asserts that the trial court violated his Sixth

Amendment right to represent himself. Doc. 61 at 19-20; see Faretta v.

California,

(1975) (recognizing the right of a criminal

defendant to “proceed without counsel when he voluntarily and intelligently

elects to do so”). Maggi asserts that he was not afforded the same

opportunities as counsel to advocate on his behalf and that the trial court’s

refusal to provide him with the tools necessary to engage in self-

representation, such as appropriate access to a law library or computer,

amounted to a constitutional violation. Doc. 61 at 19-20.

The state habeas court considered and rejected these claims, finding

that the record showed that “Maggi was afforded the right and opportunity to

represent himself” and that he “exercised that right until he decided to

proceed with counsel.” Doc. 28 at 85. The court concluded that Maggi “was

afforded the full rights of any counsel to file motions and be heard at

hearings on those motions,” noting that Maggi filed and argued multiple pro

se motions, some of which were ultimately granted. Id. at 84-85. Maggi

15 Claims C(1)-(4).

34 benefitted from the assistance of appointed stand-by counsel throughout the

course of his self-representation. Id. at 85. And, when Maggi ultimately

elected to obtain counsel, it was due to his “his family’s request,” rather than

any undue influence by the court or the State. Id.

Maggi has not presented any evidence to call into question the habeas

court’s factual conclusions that he was permitted to represent himself and

afforded all the same opportunities as counsel. Nor has he cited to any

Supreme Court precedent that is contrary to the habeas court’s implicit

rejection of his asserted right to various legal materials. See State Petition at

6 (asserting that the trial court violated Maggi’s constitutional rights “by not

providing him the ability to research and litigate”). To the contrary, the

Supreme Court has stated that there is no “clearly establis[hed]” right of a

pro se defendant to access a law library or any other “specific legal aid” and

that, therefore, habeas relief on such claims is inappropriate. Kane v. Garcia

Espitia,

(2005) (per curiam); see

(d)(1).

Accordingly, Maggi’s claim that he was denied the right to represent himself

must be dismissed. 16

16 Claim A(4). 35 B. Remaining Claims

The parties’ briefing fails to make clear whether Maggi’s remaining

constitutional claims were ever presented to or decided by either the New

Hampshire Supreme Court or the state habeas court. A federal court

ordinarily cannot grant a writ of habeas corpus unless the petitioner

has exhausted the remedies available in the state court.

(b)(1); Taylor v. Medeiros,

(1st Cir. 2020). To properly

exhaust a claim, a petitioner must “‘present the federal claim fairly and

recognizably’ to the state courts.” Clements v. Maloney,

(1st Cir. 2007) (quoting Casella v. Clemons,

(1st Cir. 2000)).

The warden addresses the exhaustion requirement in passing but fails

to meaningfully engage with the record or adequately explain why Maggi’s

claims should be deemed waived. Maggi, in turn, does not substantially

engage with the warden’s assertion that his claims were waived and fails to

cite to evidence in the record that he appropriately exhausted his claims.

For example, Maggi challenges several of the trial court’s rulings but

fails to demonstrate that he raised these errors to the state courts as

constitutional violations. 17 Maggi similarly raises a number of claims of

prosecutorial misconduct but does not identify when those claims were raised

17 Claims A(1); A(3)(a)-(b); A(3)(f)-(h); A(5); A(6)(b); A(8)-(16). 36 in the state court or how they were resolved. 18 Finally, Maggi claims that he

received constitutionally ineffective assistance from his various pre-trial

attorneys. 19 Although the state habeas court summarily rejected the claim

that Maggi’s pre-trial attorneys were constitutionally ineffective, it is not

clear from the present record whether the habeas court was addressing the

same claims raised here or separate claims against the pre-trial attorneys.

Doc. 28 at 64.

Without adequate briefing that addresses whether Maggi’s remaining

claims were exhausted in the state courts or how those courts resolved his

claims, I cannot determine whether Maggi’s claims are properly before this

court. See Mercado-Alicea v. P.R. Tourism Co.,

(1st Cir. 2005)

(“District courts are not required to ferret through sloppy records in search of

evidence supporting a party’s case.”). Accordingly, the warden’s motion for

summary judgment as to Maggi’s remaining claims is denied, without

prejudice to the warden’s ability to raise her arguments in a renewed motion

that adequately addresses the question of exhaustion.

IV. CONCLUSION

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

(Doc. 49) is granted in part and denied in part, without prejudice to the

18 Claims D(1)-(4). 19 Claims B(3); B(4)(a)-(e); B(4)(f)(i),(iii); B(4)(q)-(r); B(5)-(6). 37 warden’s ability to raise her arguments in a renewed motion for summary

judgment. 20 The clerk of court is directed to schedule a status conference to

discuss a briefing schedule for the remaining claims. No further filings will be

permitted until after the conclusion of the status conference.

As to the claims substantively addressed in this order, Maggi has failed

to make a substantial showing of the denial of any constitutional right, and

no jurists of reason would find it debatable whether this court’s assessment of

the constitutional claims or procedural rulings are correct. Therefore, I

decline to issue a certificate of appealability. See

(c)(2); Rule

11, Rules Governing Habeas Corpus Cases Under Section 2254; First Cir. LR

22.0; see also Slack v. McDaniel,

(2000).

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

March 31, 2024

cc: Gregory Maggi, pro se Counsel of record

20 The warden’s motion is granted as to the following claims: A(2); A(3)(c); A(4); A(6)(a); A(7); B(1)-(2); B(4)(f)(ii); B(4)(g)-(p); B(4)(s)-(t); B(7)-(18); C(1)- (4). It is denied without prejudice as to the remaining claims: A(1); A(3)(a)- (b); A(3)(d)-(h); A(5); A(6)(b); A(8)-(16); B(3); B(4)(a)-(e); B(4)(f)(i),(iii); B(4)(q)- (r); B(5)-(6); D(1)-(4). 38