Thomas v. NH State Prison, Warden
Filing
68
///ORDER granting 51 Reinstated Supplemental Motion for Summary Judgment; denying 67 Cross Motion for Summary Judgment. The court declines to issue a certificate of appealability. The clerk shall enter judgment accordingly and close the case. So Ordered by Chief Judge Joseph N. Laplante.(jb)
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Terry Thomas
v.
Civil No. 1:07-cv-385-JL
Opinion No. 2012 DNH 058
Warden, N.H. State Prison
OPINION AND ORDER
The petitioner, Terry Thomas, seeks habeas corpus relief
from his state-court convictions for receiving stolen property,
claiming a violation of his Sixth Amendment right to counsel and
other constitutional violations.
The respondent, the Warden of
the New Hampshire State Prison (the “Warden”), has moved for
summary judgment, see Fed. R. Civ. P. 56, arguing that all of
Thomas’s claims lack merit and that he failed to properly exhaust
his state-court remedies as to at least one of them.
Thomas has
cross-moved for summary judgment in his favor.
This court has jurisdiction over Thomas’s petition under the
Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
28 U.S.C. § 2254(a).
After oral argument, the court grants the
Warden’s motion for summary judgment and denies Thomas’s crossmotion for summary judgment.
As discussed fully infra, none of
Thomas’s claims can support habeas relief as a matter of law.
I.
Applicable legal standard
“In civil matters including habeas, evidentiary proceedings
are appropriate only where the party bearing the burden of proof
. . . starts with enough evidence to create a genuine issue of
fact; otherwise summary judgment is proper.”
Bader v. Warden,
N.H. State Prison, 488 F.3d 483, 488 (1st Cir. 2007); see also
Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (when the state
court record “precludes habeas relief” under the limitations of
§ 2254(d), “a district court is not required to hold an
evidentiary hearing”).
Thomas bears the burden of proof on his
claims for habeas relief.
See Woodford v. Visciotti, 537 U.S.
19, 25 (2002) (per curiam).
Under AEDPA, “a federal court [can] entertain only those
applications alleging that a person is in state custody ‘in
violation of the Constitution or laws or treaties of the United
States.’”1
Cullen v. Pinholster, --- U.S. ---, 131 S. Ct. 1388,
1398 (2011) (quoting 28 U.S.C. § 2254(a)).
AEDPA further
“provide[s] that a federal court may not grant such applications
1
“Custody” under the federal habeas statute is determined at
the time the petition is filed. Maleng v. Cook, 490 U.S. 488,
491 (1989); Carafas v, LaVallee, 391 U.S. 234, 238 (1968); Tinder
v. Paula, 725 F.2d 801, 803 (1st Cir. 1984). Thomas is no longer
in custody, but he was at the time he filed his petition here.
2
unless, with certain exceptions, the applicant has exhausted
state remedies.”
Id.
If a habeas application includes a claim that has been
“adjudicated on the merits in State court proceedings,”
§ 2254(d), then the court must employ a “highly deferential
standard . . ., which demands that state-court decisions be given
the benefit of the doubt” with respect to that claim.
Woodford,
537 U.S. at 24 (internal quotation marks and citation omitted).
Under § 2254(d), a federal court cannot grant habeas relief with
respect to a claim that was adjudicated on the merits in state
court unless adjudication of the claim resulted in a decision
that (i) “was contrary to” clearly established federal law, as
determined by the Supreme Court of the United States, (ii)
involved an “unreasonable application of” clearly established
federal law, or (iii) was based on an “unreasonable determination
of the facts in light of the evidence presented in the State
court proceeding.”
A claim is presumed to be “adjudicated on the merits” when
it has been presented to a state court and the state court has
denied relief, even if the state court does not provide its
reasoning.
See Harrington v. Richter, --- U.S. ---, 131 S. Ct.
770, 784-85 (2011).
On the other hand, when it is clear that the
“[state] courts did not reach the merits of [the petitioner’s
3
constitutional] claim, federal habeas review is not subject to
the deferential AEDPA standard; “[i]nstead, the claim is reviewed
de novo.
Cone v. Bell, 556 U.S. 449, 129 S. Ct. 1769, 1783
(2009); see also Wright v. Marshall, 656 F.3d 102, 107-08 (1st
Cir. 2011).
II.
Background
In 1999, Thomas was charged with seven counts of receiving
stolen property.
See N.H. Rev. Stat. Ann. § 637:7.
Mona Igram,
of the New Hampshire Public Defender’s office, was assigned to
represent him.
In January 2000, Thomas sought to dismiss Igram
and requested new counsel be appointed to act as “co-counsel”
with him in his defense.
The trial court granted this relief.
Over the next 16 months, Thomas repeatedly sought and was
appointed new “co-counsel.”
Eventually, after appointing at
least four different lawyers to this role, the court denied
Thomas’s motion to replace his then current co-counsel, JaneHolly Weintraub.
Thomas opted to proceed pro se with Weintraub
acting as his standby counsel.
In May 2001, following a jury trial in Hillsborough County
Superior Court, Thomas was convicted on three counts of receiving
stolen property.
He was later sentenced to three concurrent
4
terms of three and one-half to seven years in prison on each
count and was ordered to pay restitution.
The following month, Thomas, proceeding pro se, appealed his
convictions to the New Hampshire Supreme Court (“NHSC”).
In the
notice of appeal, Thomas raised several constitutional claims,
including that the trial court erred in allowing him to proceed
pro se and in denying his request for a transcript of a
suppression hearing.
Deputy Chief Appellate Defender David
Rothstein, also of the Public Defender’s Office, subsequently
appeared as Thomas’s appellate counsel.
Acting on his own behalf, Thomas later filed a request with
the NHSC to proceed pro se on appeal and to dismiss Rothstein as
his counsel because he “has not/is not providing reasonably
effective assistance of counsel.”
Ex. N. at 8.
Thomas argued
that Rothstein had refused to pursue numerous appellate issues
Thomas had identified.
Thomas further argued that Rothstein had
a conflict of interest because Thomas had filed professional
conduct complaints against various public defenders, including
Igram.
At the NHSC’s request, Rothstein submitted a brief on
whether Thomas had the right to proceed pro se on appeal.
Ruling
that he had no such right, the NHSC ultimately denied Thomas’s
request to proceed pro se and affirmed his convictions.
State v. Thomas, 150 N.H. 327 (2003).
5
See
Thomas then filed a motion in the Superior Court for postconviction relief, i.e., a judgment of acquittal or, in the
alternative, a new trial.
hearing.
The court denied the motion without a
Thomas then filed a notice of discretionary appeal of
this decision with the NHSC, alleging, among other claims,
ineffective assistance of both trial counsel and appellate
counsel and that the state knowingly withheld exculpatory
evidence.
In response, the state argued that Thomas was entitled
to a hearing on his claims of ineffective assistance of trial
counsel and withholding of evidence only.
The NHSC agreed,
remanding the matter for a hearing on those issues.
After the
hearing, the Superior Court rejected Thomas’s claims.
He then
filed a notice of discretionary appeal of this decision with the
NHSC, which declined to hear the appeal.
Prior to filing his second discretionary appeal, Thomas,
proceeding pro se and in forma pauperis, filed a petition for a
writ of habeas corpus in this court seeking relief from his
convictions.
Thomas’s petition included approximately 136
federal constitutional claims (34 numbered claims, some with
numerous lettered subparts).
Following preliminary review,
Magistrate Judge Muirhead recommended that 12 of the claims be
dismissed but that the rest be allowed to proceed.
The Warden
eventually moved for summary judgment on these claims.
6
In light of the unusually large number of claims surviving
preliminary review, the court appointed counsel to represent
Thomas.
See 18 U.S.C. § 3006A(a)(2)(B).
The court also
suspended its review of the pending summary judgment motion to
allow appointed counsel an opportunity to review the case file,
meet with Thomas, and file a notice with the court delineating
which claims he intended to pursue, and which he waived.
Counsel
did so, eventually filing a notice with the court setting forth
five “non-frivolous” claims he intended to pursue.2
then moved for summary judgment on those claims.
The Warden
Thomas objected
and filed a cross-motion for summary judgment.
III. Analysis
Thomas’s remaining claims are as follows:
(i)
he was denied his Sixth Amendment right to
counsel because the trial court allowed him to
waive it, and to go to trial pro se, without
conducting an adequate colloquy;
(ii)
the trial court violated his due process rights
when it denied his request for a transcript of
the suppression hearing;
2
The court appreciates appointed counsel’s service to the
court, which greatly facilitated the court’s review of the claims
at bar. At oral argument, the petitioner noted that he was
satisfied with appointed counsel’s service and performance in
this matter.
7
(iii) the trial court denied what he sees as his
constitutional right to make an opening
statement;
(iv)
the trial court denied his Sixth Amendment right
to effective assistance of counsel when it
refused to allow his standby counsel, Weintraub,
to withdraw despite an actual conflict of
interest; and
(v)
he was deprived of the effective assistance of
appellate counsel because his appellate counsel,
Rothstein, had a conflict of interest.
As explained fully infra, these claims are without merit.
A.
Claims adjudicated on the merits
On Thomas’s direct appeal, the NHSC considered and rejected
his claims concerning his waiver of his right to counsel at trial
and the trial court’s denial of his request for the transcript of
the suppression hearing.
Therefore, these two claims were
“adjudicated on the merits” and are reviewed under AEDPA’s
deferential standard.
See Part I, supra.
The court first determines whether the NHSC’s decision “was
contrary to” clearly established federal law, as determined by
the Supreme Court.
A state court decision is “contrary to”
established Supreme Court precedent if either the state court
reaches a conclusion on a question of law “diametrically
different” to that reached by the Supreme Court, or a state court
“confronts a set of facts that are materially indistinguishable”
8
from relevant Supreme Court precedent and reaches an opposite
result.
Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
If the NHSC’s decision was not “contrary to” clearly
established federal law, the court next determines whether the
decision involved
an “unreasonable application of” clearly
established federal law.
§ 2254(d).
A state court decision is
an “unreasonable application” of clearly established federal law
if the state court (i) “identifies the correct governing legal
rule from [the Supreme Court’s] cases but unreasonably applies it
to the facts” of a prisoner’s case, (ii) “unreasonably extends a
legal principle from [the Supreme Court’s] precedent to a new
context where it should not apply” or (iii) “unreasonably refuses
to extend that principle to a new context where it should apply.”
Williams, 529 U.S. at 407; see also L’Abbe v. DiPaolo, 311 F.3d
93, 96 (1st Cir. 2002).
In order to meet this standard, the
state court’s application of law must contain “some increment of
incorrectness beyond error . . . .
The increment need not
necessarily be great, but it must be great enough to make the
decision unreasonable in the independent and objective judgment
of the federal court.”
McCambridge v. Hall, 303 F.3d 24, 36 (1st
Cir. 2002) (internal quotation marks and citation omitted).
If the state court decision was not “contrary to” or an
“unreasonable application of” clearly established federal law,
9
the court next considers whether the decision was based on an
“unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.”
§ 2254(d).
Determinations of fact made by the state court are presumed to be
correct; the petitioner has the burden of rebutting this
presumption of correctness by clear and convincing evidence.
See
§ 2254(e)(1); Sleeper v. Spencer, 510 F.3d 32, 38 (1st Cir.
2007).
“The question under AEDPA is not whether a federal court
believes the state court’s determination was incorrect but
whether that determination was unreasonable--a substantially
higher threshold.”
omitted).
Schriro, 550 U.S. at 473 (internal citation
Furthermore, “[t]he ‘presumption of correctness is
equally applicable when a state appellate court, as opposed to a
state trial court, makes the findings of fact.’”
Norton v.
Spencer, 351 F.3d 1, 6 (1st Cir. 2003) (quoting Sumner v. Mata,
455 U.S. 591, 593 (1982)).
1.
Thomas’s waiver of the right to counsel at trial
Thomas argues that the trial court failed to conduct an
adequate colloquy before allowing him to represent himself, as
required to determine whether his waiver of his right to counsel
was knowing and intelligent, under Faretta v. California, 422
U.S. 806 (1975), and related cases.
10
He contends that although
the record reflects that he expressed a desire to represent
himself, it does not reflect that he was capable of, or
understood the risks, of doing so.
In moving for summary
judgment, the Warden argues that the NHSC properly applied
Faretta to conclude, reasonably, that Thomas’s waiver of his
right to counsel was knowing and intelligent.
This court agrees.
In rejecting Thomas’s claim that the trial court failed to
conduct a sufficient colloquy before accepting his waiver of
counsel, the NHSC found that “the trial court judges made the
defendant aware of the dangers and disadvantages of selfrepresentation.”
Thomas, 150 N.H. at 329 (internal quotation
marks and citation omitted).
The court further ruled that
“[w]hile we strongly prefer that trial court judges conduct an
inquiry with a defendant who wishes to waive his right to counsel
. . . the trial court in this case had sufficient evidence to
conclude that the defendant’s waiver was valid.”
Id. at 329-30
(internal quotation marks and citation omitted).
The court
therefore ruled that Thomas’s waiver was “knowing, intelligent
and voluntary.”3
Id. at 329.
3
The NHSC analyzed this claim under the state constitution,
but also indicated, without setting forth a separate analysis,
that it would reach the same result under the federal
Constitution. See Thomas, 150 N.H. at 330.
11
Thomas explained at oral argument that he does not challenge
this ruling as “contrary to” clearly established federal law.
He
concedes, in fact, that the NHSC applied the correct legal
standard, from Faretta.
See, e.g., Ellen v. Brady, 475 F.3d 5,
12 (1st Cir. 2007) (state court’s decision was not “contrary to”
federal law because “[t]he state court . . . accurately stated
the governing federal law”).
He argues, however, that the NHSC’s
decision on this claim was both an “unreasonable application of”
federal law and an “unreasonable determination of the facts.”
Indeed, the court of appeals has recognized that “the question of
whether the petitioner made a knowing, intelligent and voluntary
waiver of his right to counsel in state court” will ordinarily be
reviewed “under § 2254(d)(1)’s ‘unreasonable’” clauses.”
Yeboah-
Sefah v. Ficco, 556 F.3d 53, 68 (1st Cir. 2009) (citing Williams,
529 U.S. at 409).
Here, the NHSC’s decision that Thomas made a
valid waiver of his right to counsel was neither an unreasonable
application of law nor an unreasonable determination of fact.
a.
Unreasonable application of federal Law
The Supreme Court has held that a defendant may waive his
right to counsel and represent himself so long as he “knowingly
and intelligently forgo[es] [the] relinquished benefits” of the
right to counsel.
Faretta, 422 U.S. at 835 (internal quotation
12
marks and citation omitted).
A defendant “should be made aware
of the dangers and disadvantages of self-representation, so that
the record will establish that he knows what he is doing and his
choice is made with eyes open.”
and citation omitted).
Id. (internal quotation marks
Thus, before a trial judge may accept a
defendant’s waiver of his right to counsel, he must determine
“whether there is an intelligent and competent waiver by the
accused,” and “must investigate as long and as thoroughly as the
circumstances of the case before him demand.”
Schneckloth v.
Bustamonte, 412 U.S. 218, 244 & n.32 (1973) (citing Von Moltke v.
Gillies, 332 U.S. 708, 723-24 (1948)).
Thomas concedes that “the court made an effort to describe
the dangers of proceeding pro se.”
Pet. Obj. at 11.
Therefore,
he does not challenge the NHSC’s ruling that “the trial court
judges made the defendant aware of the dangers and disadvantages
of self-representation.”
Thomas, 150 N.H. at 329.
Instead, he
argues that “the court did not conduct a sufficient colloquy with
[him] to ensure he . . . had the ability to represent himself.”
Id. at 6.
Thomas invokes the Supreme Court’s Von Moltke opinion for
the proposition that “[a] judge can make certain that an
accused’s professed waiver of counsel is understandingly and
wisely made only from a penetrating and comprehensive examination
13
of all the circumstances under which such a plea is tendered.”
332 U.S. at 724.
This principle, however, does not mandate the
most searching colloquy imaginable in every case where a
defendant announces his intention to proceed pro se.
Instead, as
just discussed, the trial judge “must investigate as long and as
thoroughly as the circumstances of the case before him demand.”
Schneckloth, 412 U.S. at 244 n.32 (emphasis added).
Indeed,
“there are no clearly established Supreme Court decisions bearing
directly on the constitutional requirements for an adequate
[counsel] waiver colloquy.”
Yeboah-Sefah, 556 F.3d at 68 (citing
21A Am. Jur. 2d Criminal Law § 1153 (2008) (“no particular
cautionary instruction or form [by court] is required to ensure
the validity of [defendant’s] waiver” of right to counsel)).
this court must take the flexibility of this standard into
So
account in considering the reasonableness of the NHSC’s
application of Faretta.
See Richter, 131 S. Ct. at 786
(“[e]valuating whether a rule application was unreasonable
requires considering the rule’s specificity.
The more general
the rule, the more leeway courts have in reaching outcomes in
case-by-case determinations.”) (internal quotation marks and
citation omitted).
Viewed in this light, the NHSC’s decision that Thomas had
validly waived his right to counsel was not an unreasonable
14
application of federal law.
By the time his case proceeded to
trial, several different judges had explained to Thomas the risks
and responsibilities of his decision to proceed pro se and
afforded him the opportunity to reconsider that decision.
In
light of this history, if nothing else, the NHSC’s conclusion
that the trial court had a sufficient basis to find a knowing and
intelligent waiver of Thomas’s right to counsel was not “so
lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for
fairminded disagreement” so as to amount to an unreasonable
application of federal law.
b.
Richter, 131 S. Ct. at 786-87.
“Unreasonable Determination” of the Facts
Thomas also challenges the NHSC’s factual findings that his
waiver of counsel was “knowing, intelligent and voluntary.”
Thomas, 150 N.H. at 329.
The record, however, demonstrates that
this finding was not unreasonable.
Thomas argues that even if he did indicate an understanding
and acceptance of the responsibilities of proceeding pro se, the
waiver was not knowing or intelligent because he was incapable of
representing himself.
In support, he contends that he informed
the trial court that “he was not capable of objecting and
enforcing the rules of evidence.”
15
Pet. Obj. 11.
At oral
argument before this court, however, Thomas specifically stated
that he had been capable of representing himself at trial; he
just needed better assistance from his standby counsel.
In
addition, although Thomas did express his lack of familiarity
with the rules of evidence to the trial court, that did not serve
to invalidate his waiver of his right to counsel.
See Faretta,
422 U.S. at 836 (“We need make no assessment of how well or
poorly Faretta had mastered the intricacies of the hearsay rule
. . . .
For his technical legal knowledge, as such, was not
relevant to an assessment of his knowing exercise of his right to
defend himself.”); see also United States v. Kneeland, 148 F.3d
6, 12 (1st Cir 1998) (“[a]n intelligent waiver does not require
that the accused have the skill or knowledge of a lawyer”)
(internal citation omitted).
Thomas also challenges the NHSC’s finding that his waiver of
counsel was voluntary.
He argues that he felt forced to proceed
pro se because his only other option was to proceed with an
attorney, Weintraub, whom he felt he had a conflict of interest.
As just discussed, however, the record reflects that over an
approximately one year period prior to trial, Thomas repeatedly
sought and was granted the appointment of new counsel.
The trial
court assigned each of these attorneys as Thomas’s “co-counsel,”
which afforded Thomas the benefit of representation while
16
retaining the chance to personally question witnesses and conduct
other aspects of his own defense.
Just before his trial was
scheduled to begin, Thomas again sought to replace his cocounsel, who at that point was Weintraub.
Thomas informed the
trial court that if it denied this relief, he would dismiss
Weintraub and proceed pro se, but would nevertheless request the
appointment of standby counsel (as opposed to co-counsel).
The
court denied Thomas’s motion to appoint new co-counsel in
Weintraub’s stead, and, after Thomas confirmed that he desired to
proceed pro se, appointed Weintraub as his standby counsel.
At a subsequent hearing, Thomas sought to replace Weintraub
as his standby counsel.
The trial court denied his request,
finding that it was a delaying tactic, and gave Thomas the choice
between retaining his current standby counsel or proceeding
without any standby counsel.
Thomas opted to retain Weintraub as
his standby counsel, and tried the case pro se.
On the record as a whole, the NHSC’s finding that the trial
court secured a voluntary waiver of counsel was not unreasonable.
Indeed, Thomas asserted on numerous occasions that he desired to
proceed pro se, even after multiple judges had explained the
responsibilities, dangers, and disadvantages of selfrepresentation, and afforded Thomas numerous opportunities to
reconsider his decision.
It is therefore difficult to take
17
seriously Thomas’s claim that he was “forced” into doing
essentially the same thing--handling his own defense at trial--he
had been consistently trying to do all along.
This is not to say that this court disagrees with the NHSC’s
observation that it would have been preferable for the trial
court judges to conduct a more intensive inquiry with Thomas
before allowing him to proceed pro se.
But, as the NHSC
reasonably concluded, the trial court’s failure to do so was not
constitutional error.
Accordingly, the Warden is entitled to
summary judgment with respect to Thomas’s claim that he was
denied his Sixth Amendment right to counsel when the trial court
accepted his waiver of that right.
2.
Thomas’s right to the suppression hearing transcript
Thomas argues that the trial court violated his
constitutional right to due process and a fair trial under Britt
v. North Carolina, 404 U.S. 226 (1971), by denying his request
for a transcript of the suppression hearing.
In moving for
summary judgment, the Warden argues that the NHSC’s application
of Britt was not unreasonable and that an audiotape of the
suppression hearing, to which Thomas had access, was an adequate
alternative to a transcript.
The court agrees that the NHSC’s
application of the factors in Britt was not unreasonable.
18
In
addition, even if the trial court’s decision not to provide a
transcript was a violation of Thomas’s constitutional rights,
Thomas would not be entitled to habeas relief because the error
was harmless.
The record shows the following facts:
On December 12, 2000,
the trial court held a hearing on Thomas’s motion to suppress
statements and evidence obtained at the scene of his arrest.
court denied the motion.
The
On January 5, 2001, the court denied
Thomas’s motion for an expedited transcript of the suppression
hearing.
At a hearing three weeks later, the court granted
Thomas’s request to listen to the audiotape of the suppression
hearing.
The court subsequently granted Thomas’s request for
additional time to listen to the tape of the hearing.
On March 7, 2001, after the deadline to move for
reconsideration of the denial of the motion for a transcript had
passed, Thomas orally moved for the court to reconsider its
decision.
The court informed Thomas that he had not “articulated
any reason for us to have a transcript made.”
7, 2001.
Hr’g Tr. 37, Mar.
After Thomas responded that his reasons were provided
in his original motion to obtain a copy of the transcript, the
court explained that it had already considered those grounds and
found them wanting.
Nevertheless, the court gave Thomas and his
standby counsel an opportunity to listen to the tape of the
19
hearing for a second time, and granted Thomas’s request to listen
to the tape without standby counsel present.
After getting these opportunities, however, Thomas did not
renew his request for a copy of the suppression hearing
transcript or complain to the court about the adequacy of the
tape as an alternative.
Thomas did not bring the issue of the
transcript to the court’s attention again until the third day of
trial when, while attempting to impeach a witness, he complained
to the court that it was a “real problem” that he did not have a
transcript.
Trial Tr. vol. 3, 156, May 9, 2001.
The NHSC considered and rejected Thomas’s claim that the
trial court’s refusal to provide the transcript was
unconstitutional.4
Thomas explained at oral argument in this
court that he does not challenge this decision as “contrary to”
federal law or as an “unreasonable determination of the facts,”
but only as an “unreasonable application of” clearly established
federal law.
It was not but, even if it was, it is surely not
the reason that Thomas was convicted.
4
The NHSC again analyzed the claim under the state
constitution, but ruled that it would reach the same result under
the federal Constitution. See Thomas, 150 N.H. at 331.
20
a.
“Unreasonable application of” federal law
The state, upon request, must provide indigent defendants-without cost--with the “basic tools of an adequate defense . . .
when those tools are available for a price to other prisoners.”
Britt, 404 U.S. at 227; see also Ross v. Moffitt, 417 U.S. 600,
612 (1974); Griffin v. Illinois, 351 U.S. 12, 23 (1956).
Yet the
state need not provide indigent defendants with all the
assistance money can buy; rather, due process requires that the
state not deny them “an adequate opportunity to present their
claims fairly within the adversary system.”
Ross, 417 U.S. at
612; see also Ake v. Oklahoma, 470 U.S. 68, 77 (1985).
Consistent with that principle, the Supreme Court has held
that “the State must provide an indigent defendant with a
transcript of prior proceedings when the transcript is needed for
an effective defense or appeal.”
Britt, 404 U.S. at 227.
The
Court “identified two factors that are relevant to the
determination of need:
(1) the value of the transcript to the
defendant in connection with the appeal or trial for which it is
sought, and (2) the availability of alternative devices that
would fulfill the same functions as a transcript.”
Id.
As to
the first factor, the Supreme Court has held that a defendant
need not make a particular or strong showing of the value of the
transcript.
Id. at 228 (“even in the absence of specific
21
allegations it can ordinarily be assumed that a transcript . . .
would be valuable to the defendant in at least two ways:
as a
discovery device in preparation for trial, and as a tool at the
trial itself for the impeachment of prosecution witnesses”).
As
to the second factor, the Supreme Court has held that the
adequacy of alternative devices should be decided on a case-bycase basis, depending on the facts and circumstances of each
case.
See id. at 229.
In rejecting Thomas’s claim arising from
the denial of the transcript, the NHSC rested its decision on
this second factor.
Specifically, the NHSC noted that Thomas had
access to the audiotape of the suppression hearing and that,
after having the chance to review it, he failed to complain to
the trial court as to its adequacy.
150 N.H. at 331.
In challenging this conclusion, Thomas argues, in essence,
that the tape’s inadequacy did not become apparent until he
“attempted, unsuccessfully, to impeach [a witness] at trial,
without benefit of a transcript.”
But, as just discussed, the
rule set forth in Britt is not that an indigent defendant is
entitled to the transcript of a hearing simply because it can be
used for impeachment.
To the contrary, the Court specifically
recognized that, while a transcript is almost always valuable in
that sense, denying a defendant access to one rises to the level
of a due process violation only in circumstances which make the
22
alternatives inadequate.
Thus, the lack of a transcript itself
does not automatically deprive a defendant of an effective
defense, even where it could have been used to impeach a
prosecution witness.
See, e.g., Jefferies v. Wainwright, 794
F.2d 1516, 1520 (11th Cir. 1986) (“[c]ounsel’s inability to
impeach [a prosecution witness] with the suppression transcript
itself did not deprive appellant of an effective defense”).
Here, Thomas was able to use the audiotape to effectively
impeach the witness in question, Sergeant Alan Semple.
On cross-
examination, Semple agreed that it was possible that he could
have testified as Thomas suggested at the suppression hearing,
and that he recognized that Thomas “obviously [had] some sort of
a transcript there.”
Trial Tr. vol. 3, 155.
Thus, even without
the transcript, Thomas was able to effectively confront Semple
with his allegedly inconsistent statement.
It was not unreasonable for the NHSC to conclude that, under
these circumstances, the audiotape was an adequate alternative to
the transcript so that denying Thomas access to it did not
violate his right to due process.
See Jefferies, 794 F.2d at
1520 (“We do not concede, however, that functional alternatives
are limited to those devices which allow impeachment by a
witness’ own words . . . .
Thus, a functional alternative to a
typed transcript includes any device which allows a defendant to
23
present an effective defense”); United States v. Vega, 589 F.2d
1147, 1150 (11th Cir. 1978) (finding no due process violation
where “[t]he value of the [suppression hearing] transcript to the
appellant was minimal”).5
Accordingly, while Thomas’s
impeachment of Semple may have been more effective with a
transcript of the suppression hearing, it does not follow that
the NHSC unreasonably applied federal law in upholding the trial
court’s refusal to give him one.6
b.
It did not.
Harmless error
Furthermore, even if the trial court did violate Thomas’s
due process rights by refusing him the transcript, he would not
be entitled to habeas corpus relief because that violation was
harmless.
An error is harmless in the habeas corpus context
unless it “‘had substantial and injurious effect or influence in
5
In contrast, where courts that have found that the denial
of a suppression hearing transcript was constitutional error,
there has generally been both a showing of high need and a
complete lack of available alternative devices. See, e.g.,
United States v. Devlin, 13 F.3d 1361, 1363-65 (9th Cir. 1994)
(holding that suppression hearing transcript should have been
provided when there were many inconsistencies between the
testimony in the two proceedings, the government itself requested
a copy of the transcript, and the defendant was given no
alternative to the transcript prior to trial).
6
Thomas also contended at oral argument that the Britt
standard should be applied differently when the defendant is
proceeding pro se. He does not provide any support for that
principle, which is certainly not “clearly established.”
24
determining the jury’s verdict.’”
Fry v. Pliler, 551 U.S. 112,
116 (2007) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637
(1993)).
Here, although Thomas argues that impeaching Semple
with the transcript would have resulted in his acquittal, the
record is squarely to the contrary.
As just discussed, even without the transcript, Thomas
confronted Semple with his supposedly inconsistent statement, and
the witness acknowledged that he may have testified to that
effect.
Moreover, any inconsistency between Semple’s testimony
at the suppression hearing and at trial was minimal at best, and
therefore did not bear significantly upon his credibility as a
witness or, for that matter, any other material issue in the
case.
Accordingly, the court cannot conclude that the lack of a
transcript had any influence on the jury’s verdict.
See, e.g.,
United States v. Rosales-Lopez, 617 F.2d 1349, 1356 (9th Cir.
1982) (holding that the trial court’s use of an erroneous legal
standard in determining whether the defendant should have been
provided with a transcript of a suppression hearing was harmless
error because “[t]he defense . . . can point to only two minor
inconsistencies between the testimony at the suppression hearing
and the testimony given at trial”).
So, even if the NHSC’s decision concerning the suppression
hearing transcript were an “unreasonable application of” clearly
25
established federal law, Thomas would not be entitled to habeas
corpus relief because the lack of a transcript did not have a
substantial and injurious effect on the jury’s verdict.
The
Warden is entitled to summary judgment on this claim.
B.
Claims not adjudicated on the merits
The NHSC did not reach the merits of Thomas’s remaining
claims.
Therefore, the claims are reviewed de novo.
Cone, 129
S. Ct. at 1784.
1.
Limitation of Thomas’s opening statement
Thomas argues that the trial court violated his
constitutional right to a fair trial by precluding him from
mentioning, in his opening statement, his theory that his
prosecution was the product of a conspiracy among various state
actors, including a prosecutor who had fabricated evidence
against him.
The Warden argues that a defendant does not have a
federal constitutional right to make an opening statement, and
that therefore the trial court’s limitation on Thomas’s opening
statement cannot be the basis for habeas corpus relief.
The
Warden further argues that even if Thomas did have a right to
make an opening statement, the trial court did not violate that
right because Thomas was unable to proffer any evidence
26
supporting the theory he wished to raise.7
Assuming that a
defendant has a constitutional right to make any opening
statement, a right which has not been recognized by the Supreme
Court, Thomas did not articulate any evidence supporting his
conspiracy theory to the trial court, despite repeated
opportunities to do so.
Therefore, the trial court acted
properly in precluding any reference to that theory in Thomas’s
opening statement.
The Warden is correct that there is no Supreme Court
decision establishing a defendant’s constitutional right to make
an opening statement.
Some federal courts, however--including
our court of appeals--have recognized the existence of such a
right.
See United States v. Hershenhow, 680 F.2d 847, 858 (1st
Cir. 1982) (“provided he confines himself to a discussion of what
he hopes to show, a defendant in a criminal case has a right to
make an opening [statement] regardless of whether he intends to
call witnesses”); see also United States v. Zielie, 734 F.2d
1447, 1455 (11th Cir. 1984); Jennings v. United States, 431 A.2d
552, 560 (D.C. Cir. 1981).
Because the Warden is entitled to
summary judgment on this claim for the independent reason that
7
The Warden does not challenge whether Thomas properly
exhausted his remedies with regard to this claim, so this court
simply assumes without deciding that he has.
27
the trial court did not improperly limit Thomas’s opening
statement, the court will assume without deciding that a criminal
defendant has a constitutionally protected right to make an
opening statement.
On the first day of trial, the court advised Thomas that
although he was not required to inform the court as to the
content of his opening statement, the court would sustain the
prosecutor’s objection to any inappropriate remarks.
The court
invited Thomas to “test the waters” by telling the court anything
he thought may be objectionable.
2001.
Trial Tr. vol. 1, 65, May 7,
Thomas responded that he intended to make the following
remark in his opening statement:
“I intend to demonstrate to you
that the prosecution has molded and manufactured evidence in this
case in an effort to cover up mistakes, police misconduct, and
obtain a conviction in this case.”
Id. at 65-66.
In response, both the prosecutor and the court asked Thomas
what evidence he intended to put forth in support of that theory,
explaining that his opening statement had “to be based on
evidence that you are prepared to present through competent,
relevant testimony from witnesses.”8
8
Id. at 66.
The closest
A criminal defendant could conceivably interpret this
particular statement to suggest that he or she carried a burden
of proof at trial, which is of course neither correct nor
constitutionally permissible. Thomas has not advanced that
28
Thomas came to answering this question was his statement that he
“expected the jury to be able to obtain a reasonable inference
from my questions.”
Id. at 68.
This persisted even though the court repeatedly explained to
Thomas that he could only discuss matters in his opening
statement on which he planned to introduce evidence.
The court’s
explanations included the following:
You can’t talk about something unless you are
prepared to present evidence . . . . Id. at 67;
I’m asking you what evidence there is to present
to show that there’s –- that they’ve concocted evidence
somehow. Id. at 68;
But that doesn’t mean that the defendant can come
out with an opening statement and sort of lambasting
[sic] of the State without a basis standing behind it.
Id. at 70;
I can’t permit an opening statement to be made
that’s not a proper, responsible opening statement that
bears a relationship directly to the evidence that’s
going to be presented in the court of the trial
consistent with it. Id. at 71; and
I’m saying you can’t talk about something that you
–- just sort of a pie in the sky. You have to have –back that with –- with being prepared to present
credible, relevant, admissible evidence.9 Id. at 77.
argument here, and as explained infra, the trial judge’s handling
of the defendant’s opening statement does not violate Thomas’s
constitutional rights.
9
See supra n.8.
29
Despite these admonitions, during his opening statement,
Thomas repeated the exact same phrase he had previewed for the
court:
“I intend to demonstrate to you that the prosecution has
molded and manufactured evidence in this case in an effort to
cover up mistakes, police misconduct, and obtain a conviction in
this case.”
Id. at 91.
After the prosecutor objected, the court
again asked Thomas, at sidebar, what evidence he planned to
introduce to support that argument, but ultimately was not
satisfied that there was any.
The court therefore instructed the
jury to disregard Thomas’s remark.
“The purpose of an opening statement ‘is to state what
evidence will be presented, to make it easier for the jurors to
understand what is to follow, and to relate parts of the evidence
and testimony to the whole.’”
Hershenhow, 680 F.2d at 857-58
(quoting United States v. Dinitz, 424 U.S. 600, 612 (1976)
(Burger, C.J. concurring)); see also Arizona v. Washington, 434
U.S. 497, 513 n.32 (1978).
Thus, an opening statement “should
not refer to matters that are not to be presented as evidence,”
United States v. Taren-Palma, 997 F.2d 525, 532 (9th Cir. 1993),
overruled on other grounds by United States v. Shabani, 513 U.S.
10 (1994), and, if this occurs, the trial court can take
appropriate steps to remedy it, Hershenhow, 680 F.2d at 858.
30
Here, as just discussed, Thomas failed to articulate to the
trial court’s satisfaction--despite repeated opportunities to do
so--the evidence he intended to adduce to support his defense
that the prosecution had “molded and manufactured evidence” of
his guilt to cover up police misconduct.
In instructing the jury
to disregard that portion of Thomas’s opening statement, then,
the trial court was properly limiting the statement to a
discussion of the anticipated evidence.
At oral argument in this court, Thomas argued that he
intended to show that the arresting officers lied when they
claimed that Thomas was “sweaty” and had “wet shoes” when he was
arrested.
It is not clear how this is evidence, or how it would
tend to support his theory of misconduct by the prosecutor but,
those problems aside, Thomas concedes that he did not directly
offer this explanation to the trial court in arguing over his
opening statement.
Instead, he argues that he referred the trial
court at that time to his pending motion to dismiss, which did
make that argument.
That is incorrect; this court has reviewed
the motion, and it contains no such allegations.
1-28.
See Ex. 2 at
The record conclusively shows, then, that Thomas failed to
describe for the trial court any admissible proof for his theory
of fabricated evidence.
Even if he had a constitutional right to
give an opening statement, then, the trial court did not violate
31
that right by limiting the statement to matters for which Thomas
could conjure some evidentiary support.
Therefore, the Warden is
entitled to summary judgment on Thomas’s claim regarding the
trial court’s limitation on his opening statement.
2.
Ineffective assistance of standby counsel
Thomas argues that the trial court denied him the effective
assistance of counsel by allowing him to proceed with standby
counsel, Weintraub, who had an actual conflict of interest.
The
Warden argues that because Thomas failed to properly exhaust his
state-court remedies as to this claim, he cannot raise it here,
and that it is without merit in any event because Weintraub did
not have an actual conflict of interest.
While this court
disagrees that Thomas failed to exhaust this claim, it is indeed
without merit, because (a) since, as already discussed, Thomas
validly decided to proceed pro se, he had no right to the
“effective assistance” of standby counsel and (b) even if he did,
the record provides no support for the proposition that
Weintraub’s conflict of interest--even if she had one--adversely
affected her performance.
So the Warden is entitled to summary
judgment on the ineffective assistance of standby counsel claim.
32
a.
Exhaustion
To be eligible for federal habeas relief, Thomas must show
that he has exhausted all of his state court remedies, or that he
is excused from exhausting those remedies because of an absence
of available or effective state corrective processes.
See 28
U.S.C § 2254(b); see also Adelson v. DiPaola, 131 F.3d 259, 26162 (1st Cir. 1997).
A petitioner’s remedies under state law have
been exhausted when the state’s highest court has had an
opportunity to rule on the petitioner’s claims.
See Lanigan v.
Maloney, 853 F.2d 40, 42 (1st Cir. 1988); see also Picard v.
Connor, 404 U.S. 270, 275 (1971).
To show that he has given the
state’s highest court that opportunity, a petitioner “must show
that he tendered 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.”
Clements v. Maloney, 485
F.3d 158, 162 (1st Cir. 2007) (internal quotation marks and
citations omitted).
Here, as discussed in Magistrate Judge Muirhead’s Report and
Recommendation, which was later approved by this court, Thomas
properly exhausted his claim that Weintraub’s conflict of
interest deprived him of his Sixth Amendment right to effective
assistance of counsel.
Thomas presented this claim to the NHSC
in his Petition for Writ of Habeas Corpus filed on December 6,
33
2004, which included an allegation that “Weintraub continued to
act as standby counsel despite her stated ‘actual conflict of
interest’ with the Petitioner and subsequently allowed this
‘conflict’ to interfere with the Petitioner’s representation of
himself at trial,” citing, among other federal constitutional
provisions, the Sixth Amendment.
present the claim to the NHSC.
This was sufficient to fairly
See Clements, 485 F.3d at 162 (a
federal claim is fairly presented to the state court when a
habeas petitioner “cit[es] a provision of the federal
constitution” or “present[s] a federal constitutional claim in a
manner that fairly alerts the state court to the federal nature
of the claim”).
Therefore, Thomas properly exhausted this claim.
Because the NHSC did not consider this claim on its merits, the
court’s review of this claim is de novo.
b.
Merits
Five days before his trial began, the Superior Court held an
expedited hearing on Thomas’s request to replace Weintraub, at
which Thomas accused her of “professional misconduct.”
6, May 2, 2001.
Hr’g Tr.
At the hearing, Weintraub stated that she had
recently moved to withdraw as counsel, and informed the court
that in light of Thomas’s allegations against her, she was in a
position of conflict.
The prosecutor agreed that Weintraub had
34
grounds to withdraw, but noted that in light of the upcoming
trial date, Thomas should have to proceed without standby counsel
if that happened.
Thomas explained that, although he wished to
have new standby counsel appointed, he would prefer to proceed
with Weintraub rather than without any standby counsel.
The
judge viewed Thomas’s complaint against Weintraub as “an attempt
to delay” the trial and denied both Weintraub’s motion to
withdraw and Thomas’s motion to replace her.
Id. at 12.
On the first day of trial, Weintraub again raised her
“actual conflict of interest” in light of a claim of ineffective
assistance of counsel by her (and others) that Thomas had raised
in a pending motion to dismiss.
Trial Tr. vol. 1, 48.
The court
explained that it would not appoint a new standby counsel at such
a late date.
Thomas again expressed his preference to keep
Weintraub as standby counsel rather than proceed without standby
counsel.
The court denied Weintraub’s motion to withdraw, noting
the very limited role that she would play as standby counsel.
The Sixth Amendment affords a defendant the right to the
effective assistance of counsel in all state criminal
prosecutions which may result in the loss of his liberty.
Strickland v. Washington, 466 U.S. 668, 684-86 (1984).
But “a
defendant who elects to represent himself cannot thereafter
complain that the quality of his own defense amounted to a denial
35
of ‘effective assistance of counsel.’”
Faretta, 422 U.S. at 834
n.46; see also McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984).
As Thomas concedes, he had no constitutional right to the
assistance of standby counsel.
See Pet. Obj. 13 (citing United
States v. Morrison, 153 F.3d 34, 55 (2d Cir. 1998)).
“[W]ithout
a constitutional right to standby counsel, a defendant is not
entitled to relief for the ineffectiveness of standby counsel.”
Morrison, 153 F.3d at 55; see also Simpson v. Battaglia, 458 F.3d
585, 597 (7th Cir. 2006); United States v. Schmidt, 105 F.3d 82,
90 (2d Cir. 1997).
Thus, Thomas cannot state a cognizable claim
for denial of his Sixth Amendment right to effective assistance
of counsel on the basis of Weintraub’s alleged conflict.10
Even if standby counsel’s performance could provide a basis
to an ineffective assistance of counsel claim, Thomas has not
demonstrated any grounds for that claim.
To establish a claim
for ineffective assistance of counsel, a petitioner must satisfy
the two-element Strickland standard, namely, “(1) deficient
performance by counsel (2) resulting in prejudice.”
Malone v.
Clarke, 536 F.3d 54, 63 (1st Cir. 2008) (citing Rompilla v.
10
Thomas argues that although he did not have a
constitutional right to standby counsel, once the trial court
appointed standby counsel, he had the right to the effective
assistance of counsel. Thomas does not provide any support for
that argument, which is directly contrary to the case law just
discussed.
36
Beard, 545 U.S. 374, 380 (2005)).
To satisfy the prejudice
element, a petitioner must show that there exists a “reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
Strickland,
466 U.S. at 694.
If, however, “the defendant demonstrates that counsel
actively represented conflicting interests and that an actual
conflict of interest adversely affected his lawyer’s
performance,” then the prejudice element is presumed.
Id. at 692
(internal quotation marks and citation omitted); see also Mickens
v. Taylor, 535 U.S. 162, 171 (2002) (a defendant must show that
the conflict “actually affected the adequacy of his
representation”); United States v. Burgos-Chaparro, 309 F.3d 50,
53 (1st Cir. 2002) (“some adverse action or inaction is required
that can be traced to the conflict in loyalty”).
As an initial matter, it is doubtful that Weintraub was
suffering from an actual conflict of interest at any point prior
to or during Thomas’s trial.
Again, Weintraub believed she had
such a conflict due to Thomas’s allegations of ineffective
assistance of counsel and his stated plan to use that as a basis
of his defense--including by calling her as a witness.
The trial
court, however, foiled that plan, precluding Thomas from arguing
ineffective assistance or calling Weintraub to testify.
37
In
addition, although Thomas eventually filed a grievance against
Weintraub with the Professional Conduct Committee, he did not do
so until after the trial.
Without a grievance on file, and without ineffective
assistance of counsel as an issue at trial, there may well not
have been an actual conflict at that point.
There was likely a
“mere theoretical division of loyalties,” which, as just
discussed, would not relieve Thomas of his burden to show
prejudice--a reasonable probability that but for Weintraub’s
alleged errors, the results of his trial would have been
different--to succeed on his ineffective assistance of counsel
claim.
Mickens, 535 U.S. at 171.
The record provides no support
for that, which is fatal to Thomas’s claim that Weintraub was
constitutionally ineffective (unless she had an actual conflict).
Even assuming that Weintraub had an actual conflict of
interest at some point before the trial ended, his claim that she
was constitutionally ineffective still fails, because there is no
indication in the record that the conflict adversely affected her
performance.
Thomas argues that the adverse effect of the
conflict on Weintraub’s performance manifested itself in the
following ways:
(i) he modified his opening statement to avoid
alienating Weintraub; (ii) Weintraub reluctantly, and only when
specifically requested, provided information as to objections or
38
other issues at trial; (iii) Weintraub did not take a larger role
in the case after Thomas became exhausted midway through the
trial; (iv) Weintraub convinced him not to call certain witnesses
whose testimony would have shown that she was sabotaging his
case, and (v) Weintraub did not assist him in managing witnesses.
See Ex. 10(A) at 41-42, 50-57, 59-60, and 63-66.
Most of these arguments misapprehend the role of standby
counsel which, as the title suggests, is “to aid the accused if
and when the accused requests help.”
(emphasis added).
McKaskle, 465 U.S. at 176
Thomas does not allege, and the record does
not show, that Weintraub ever refused his requests for assistance
during trial.
Nor is there any record support for Thomas’s
allegations that Weintraub interfered with his trial tactics,
such as the content of his opening statement or the witnesses he
called.
Indeed, Thomas’s “modification” to his opening
statement--which he characterizes as excluding references to
ineffective assistance of counsel and a police conspiracy--were
ordered by the court, as already discussed at length.
There is no support for Thomas’s claim that Weintraub’s
actual conflict in representing him--assuming dubitante that she
had one--adversely affected by her performance as standby
counsel.
The Warden is entitled to summary judgment on Thomas’s
claim that Weintraub was constitutionally ineffective.
39
3.
Ineffective assistance of appellate counsel
Thomas also claims ineffective assistance by his appellate
counsel, Rothstein.
Thomas bases this claim on two separate
deficiencies in Rothstein’s representation:
(1) he had
previously been a colleague of Igram, an attorney who had briefly
represented Thomas at the trial level and against whom Thomas
wanted to pursue an ineffective assistance of counsel claim, and
(2) Rothstein refused to take certain actions and pursue certain
avenues of appeal that were requested by Thomas.11
The Warden
argues that because Rothstein withdrew from representing Thomas
on his claim that Igram was ineffective, there was no conflict of
interest.
The court agrees with the Warden and, furthermore,
finds Thomas’s other theory that Rothstein was ineffective to be
without merit.
Because the NHSC did not consider Thomas’s claim
of ineffective assistance of appellate counsel on its merits,
this court reviews it de novo.12
11
Thomas’s attorney did not address this claim in his
objection. Thomas raised the issue in his “Pro Se Supplemental
Objection,” but did not include any argument in his objection.
Instead, he asked the court to review various pro se memoranda in
the record that addressed the claim. The court has reviewed the
memoranda and has interpreted Thomas’s arguments in the light
most favorable to him.
12
As with his claim against Weintraub, Thomas presented this
claim to the NHSC in his Petition for Writ of Habeas Corpus.
40
Thomas’s claim that Rothstein had a conflict of interest is
easily resolved.
Rothstein repeatedly explained to Thomas that
he did not believe that Thomas’s claim against Igram had any
merit, especially because she did not actually represent him at
trial.
Because of his disagreement with Thomas on this point,
and also because of his former professional relationship with
Igram, Rothstein moved to withdraw as Thomas’s appellate counsel
as to any claim of ineffective assistance by Igram.
The NHSC
granted that motion, leaving Rothstein as Thomas’s appellate
counsel as to all other claims.
Because Rothstein withdrew from
representing Thomas on the very claim that allegedly presented a
conflict, the conflict-based claim for ineffective assistance of
appellate counsel has no merit.
In his pro se memorandum, Thomas asserts numerous other
deficiencies in Rothstein’s representation, including his refusal
“to compare audio recordings of trial to trial transcript to
correct specific errors,” his “failure to order transcripts,” his
failure “to effectively argue bail pending appeal,” and his
failure “to investigate, appeal and/or argue the sentencing
errors by” the trial court.
See Pet. Supp. Obj. 8.
As an
initial matter, Thomas’s claims of ineffective assistance of
counsel as to bail and sentencing issues are moot for purposes of
41
this proceeding, since his appeal has been denied and he has
finished serving his sentence.
Regardless, Thomas fails to show that any of Rothstein’s
actions constitute a “deficient performance by counsel.”
As the
Supreme Court has held, “counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.
In any ineffectiveness
case, a particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances, applying a
heavy measure of deference to counsel’s judgments.”
Cullen, 131
S. Ct. at 1427 (quoting Strickland, 466 U.S. at 691).
Rothstein’s decision not to investigate every alleged error noted
by Thomas is reasonable on its face.
To the extent Thomas argues
that Rothstein should have raised other claims in his appeal, he
ignores “the wide latitude counsel must have in making tactical
decisions.”
Strickland, 466 U.S. at 689.
Moreover, even if Rothstein’s performance were deficient,
Thomas has failed to demonstrate a “reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”
Id. at 694.
Thomas
simply asserts, without elaboration, that his appeal would have
been successful with better appellate counsel.
That is not
enough to satisfy the prejudice element of Strickland.
42
See
Richter, 131 S. Ct. at 792 (“[t]he likelihood of a different
result must be substantial, not just conceivable”).
Accordingly, the Warden is entitled to summary judgment on
Thomas’s claim of ineffective assistance of counsel by Rothstein.
In addition to his pro se arguments in support of that claim,
Thomas makes two additional pro se claims in his supplemental
memorandum.
The court has reviewed those claims and concludes
that they, too, are without merit.
IV.
Conclusion
For the foregoing reasons, the court grants the Warden’s
motion for summary judgment13 and denies Thomas’s motion for
summary judgment.14
Because Thomas has failed to make a
substantial showing of the denial of a constitutional right, the
court declines to issue a certificate of appealability.
See 28
U.S.C. § 2253(c)(2); Rule 11, Federal Rules Governing Habeas
Corpus Cases Under Section 2254; First Cir. LR 22.0.
shall enter judgment accordingly and close the case.
13
Document no. 51.
14
Document no. 67.
43
The clerk
SO ORDERED.
____________________________
Joseph N. Laplante
United States District Judge
Dated:
cc:
March 21, 2012
Terry Thomas, pro se
Lawrence A. Vogelman, Esq.
Elizabeth C. Woodcock, Esq.
Stephen D. Fuller, Esq.
Susan P. McGinnis, Esq.
44
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