Giddens v. NH State Prison, Warden

Filing 24

///ORDER granting 18 Respondent's Motion for Summary Judgment; denying 22 Petitioner's Motion for Summary Judgment, as well as his 1 petition for a writ of habeas corpus. The court declines to issue a certificate of appealability. The Clerk of Court shall enter judgment in accordance with this order and close the case. So Ordered by Chief Judge Steven J. McAuliffe. (jab)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Douglas Giddens,
Petitioner
v.

Case No. 09-cv-277-SM
Opinion No. 2011 DNH 084

Warden, N.H. State Prison,
Respondent
O R D E R
In December of 2004, Douglas Giddens, was tried in state
court on charges of kidnapping and aggravated felonious sexual
assault (“AFSA”).
compelling.

The evidence introduced against him was

DNA evidence linking him to the crime, incriminating

statements he made to police, and testimony by his victim, who
described how Giddens abducted her at knife-point and repeatedly
raped her, were presented to the jury.

Giddens was convicted of

one count of kidnapping and seven counts of AFSA.

He was

sentenced to serve 30 to 60 years in state prison.

His

convictions were affirmed on appeal to the New Hampshire Supreme
Court.

State v. Giddens, 155 N.H. 175 (2007).

Giddens now seeks federal habeas corpus relief.
generally 28 U.S.C. § 2254.

See

In support of his petition, Giddens

points to numerous instances, during both his trial and direct
appeal, that he says amounted to ineffective assistance of

counsel in violation of his Sixth Amendment rights.

None of

those claims has merit.1

Standard of Review
I.

AEDPA and Petitioner’s Burden.
Since passage of the Anti-Terrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), the power to
grant federal habeas relief to a state prisoner with respect to
claims adjudicated on the merits in state court has been
substantially limited.

A federal court may not disturb a state

conviction unless the state court’s adjudication “resulted in a
decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.”

28 U.S.C. § 2254(d)(2).

And, a habeas petitioner

seeking relief under that provision faces a substantial burden
insofar as “a determination of a factual issue made by a State
court shall be presumed to be correct.”

1

28 U.S.C. § 2254(e)(1).

Initially, Giddens also pressed three claims in which
he asserted that he was denied due process at various stages of
his trial. He later withdrew those claims. See Motion to Amend
Habeas Petition (document no. 11) at 1. See also Petitioner’s
Objection to Summary Judgment (document no. 21) at 1 (“As was
made clear in the petitioner’s Motion to Amend Habeas Petition,
claims 1-3 were dropped.”).
2

Alternatively, habeas relief may be granted if the state
court’s resolution of the constitutional issues before it
“resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.”
§ 2254(d)(1).

28 U.S.C.

The Supreme Court explained the distinction

between decisions that are “contrary to” clearly established
federal law, and those that involve an “unreasonable application”
of that law as follows:
Under the “contrary to” clause, a federal habeas court
may grant the writ if the state court arrives at a
conclusion opposite to that reached by [the Supreme]
Court on a question of law or if the state court
decides a case differently than [the Supreme] Court has
on a set of materially indistinguishable facts. Under
the “unreasonable application” clause, a federal habeas
court may grant the writ if the state court identifies
the correct governing legal principle from [the
Supreme] Court’s decisions but unreasonably applies
that principle to the facts of the prisoner’s case.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000).

The Court also

noted that an “incorrect” application of federal law is not
necessarily an “unreasonable” one.
The most important point is that an unreasonable
application of federal law is different from an
incorrect application of federal law . . . . Under
§ 2254(d)(1)’s “unreasonable application” clause, then,
a federal habeas court may not issue the writ simply
because that court concludes in its independent
judgment that the relevant state-court decision applied
clearly established federal law erroneously or
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incorrectly. Rather, that application must also be
unreasonable.
Id. at 410-11 (emphasis in original).

So, to prevail, the habeas

petitioner must demonstrate that “the state court’s ruling on the
claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.”

Harrington v. Richter, 131 S. Ct. 770,

786-87 (2011).

Finally, it probably bears noting that a state court need
not rely upon, nor need it even cite, Supreme Court precedent in
order to avoid resolving a petitioner’s claims in a way that is
“contrary to” or involves an “unreasonable application of”
clearly established federal law.

See Early v. Packer, 537 U.S.

3, 8 (2002) (“Avoiding these pitfalls does not require citation
of our cases - indeed, it does not even require awareness of our
cases, so long as neither the reasoning nor the result of the
state-court decision contradicts them.”) (emphasis in original).
In fact, even when a state court has summarily rejected a
petitioner’s federal claim without any discussion at all, “it may
be presumed that the state court adjudicated the claim on the
merits in the absence of any indication or state-law procedural
principles to the contrary.”

Harrington, 131 S. Ct. at 784-85.
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Under those circumstances - that is, when “a state court’s
decision is unaccompanied by an explanation,” - the habeas
petitioner still bears the burden of “showing there was no
reasonable basis for the state court to deny relief.”

Id. at

784.

Only as to federal claims that were not adjudicated on the
merits by the state court (or that were not dismissed by
operation of a regularly-applied state procedural rule), may this
court apply the more petitioner-friendly de novo standard of
review.

See, e.g., Clements v. Clarke, 592 F.3d 45 52 (1st Cir.

2010) (“In contrast, a state court decision that does not address
the federal claim on the merits falls beyond the ambit of AEDPA.
When presented with such unadjudicated claims, the habeas court
reviews them de novo.”) (citation omitted).

II.

Ineffective Assistance of Counsel.
To prevail on a claim of ineffective assistance of counsel,

a habeas petitioner must show that his or her counsel provided
constitutionally deficient representation and that the petitioner
suffered prejudice as a result.
466 U.S. 668, 687 (1984).

See Strickland v. Washington,

As to each of those essential

elements, the petitioner bears a substantial burden of proof:

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To establish deficient performance, a person
challenging a conviction must show that counsel’s
representation fell below an objective standard of
reasonableness. A court considering a claim of
ineffective assistance must apply a strong presumption
that counsel’s representation was within the wide range
of reasonable professional assistance. The
challenger’s burden is to show that counsel made errors
so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth
Amendment.
With respect to prejudice, a challenger must
demonstrate a reasonable probability that, but for
counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome. It is not enough to show
that the errors had some conceivable effect on the
outcome of the proceeding. Counsel’s errors must be so
serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.
Harrington, 131 S. Ct. at 787-88 (citations and internal
punctuation omitted).

Given the foregoing requirements,

“[s]urmounting Strickland’s high bar is never an easy task.”
Padilla v. Kentucky, 130 S. Ct. 1473, 1485 (2010).

Discussion
Giddens says he received constitutionally deficient legal
representation at both the trial and appellate levels.

In three

separate post-trial proceedings, the state superior court
addressed (and resolved) each of Giddens’ numerous federal claims
on the merits.

See Order on Motion for New Trial (January 30,

2009) (document no. 23); Order on Petition for Habeas Corpus
6

(March 8, 2010) (document no. 23-2); Order on Petition for Habeas
Corpus (July 20, 2010) (23-1).

The New Hampshire Supreme Court

summarily denied each of Giddens’ discretionary appeals.

Because

Giddens’ federal claims were addressed on the merits, this
court’s review is highly deferential and, as noted above, Giddens
bears the substantial burden of demonstrating that the state
courts’ resolution of his constitutional claims “resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States.”

28 U.S.C. § 2254(d)(1).

He has failed to do so.2

First and most fundamentally, Giddens’ arguments are
misplaced.

Rather than attempt to demonstrate how the state

courts’ various decisions were contrary to, or involved an
unreasonable application of, Supreme Court precedent, he argues

2

Parenthetically, the court notes that, at least
arguably, the state superior court disposed of two of Giddens’
ineffective assistance claims (failure to seek out witnesses and
failure to impeach the victim on her identification of Giddens as
her assailant) on procedural grounds. See Order of Petition for
Habeas Corpus (document no. 23-1) at 3 (ruling that those claims
were procedurally barred but, in the alternative, concluding that
they failed on the merits). See generally Harris v. Reed, 489
U.S. 255, 264 n.10 (1989) (discussing state court holdings that
invoke state procedural bars and, in the alternative, address the
merits of a petitioner’s claims). But, the State does not argue
that those claims were procedurally barred, so the court will
consider the superior court’s discussion of the merits of those
claims under the standards established in section 2254(d).
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instead that those decisions were incorrect.

But, as noted

above, there is a substantial (and legally significant)
distinction between a decision that is merely “incorrect” and one
that is “unreasonable.”

While Giddens may disagree with the

state courts’ resolution of his various claims, he has not
demonstrated that those decisions were the product of an
unreasonable application of federal law.

Nor has he shown that

the state courts’ decisions were based upon an unreasonable
determination of the facts.

Consequently, he has not

demonstrated an entitlement to habeas relief.

Beyond that, however, even if Giddens had attempted to meet
his burden under section 2254, he would have failed.

His

strongest claim is this: that trial counsel provided
constitutionally deficient representation by failing to seek a
limiting instruction from the court after Manchester Police
Officer John Patti testified for the State.

Giddens argues that

because the crimes with which he was charged occurred in Milford,
New Hampshire, the jury might reasonably have inferred from the
involvement of Manchester police officers that Giddens was also a
suspect in unsolved Manchester rapes.

And, says Giddens, trial

counsel should have sought a limiting instruction from the court
to address that possibility.

8

In his direct appeal, Giddens argued to the state supreme
court that the trial court erred in refusing to exclude Officer
Patti’s testimony pursuant to New Hampshire Rules of Evidence 403
and 404(b).

The court rejected that claim, concluding that the

Officer’s testimony did not unfairly prejudice Giddens.
Giddens, 155 N.H. at 181.

State v.

Subsequently, Giddens presented the

same claim in support of his motion for a new trial, but he
packaged it in a slightly different way.

Rather than faulting

the trial court for admitting the officer’s testimony, he leveled
an accusatory finger at his trial counsel, saying the failure to
seek a limiting instruction in the wake of Officer Patti’s
testimony amounted to ineffective assistance.

The state superior

court carefully considered and rejected that claim.
The defendant further argues that counsel should have
requested a limiting instruction which would have
erased any taint of prejudice from the jury’s mind.
While the defendant does give examples of possible
limiting instructions which could have been made by
counsel, each of those suggestions is fraught with the
danger that the limiting instruction would reinforce
any prejudicial effect of the evidence. Clearly
counsel could not be faulted for erring on the side of
caution. This was clearly a tactical decision by
counsel to avoid the danger of further prejudice.
Finally, however, the defendant disregards the Supreme
Court’s determination that, in any event, even without
a limiting instruction or a motion in limine to exclude
evidence that Detective Patti was a Manchester police
officer, or a lack of cross-examination, there was
little danger of unfair prejudice. In order to require
a new trial, the defendant must show that his
attorney’s failure to cross-examine effectively in
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regard to the evidence, or to request a limiting
instruction, was so prejudicial that there is a
reasonable probability that, but for this failure of
counsel, the defendant would have been acquitted. It
is clear that no such level of actual prejudice has
been achieved. The Supreme Court found “little danger
of unfair prejudice” by allowing the evidence, even
considering the attorney’s failure to cross-examine or
to request a limiting instruction.
Order of Motion for New Trial (document no. 23).

Giddens has not

pointed to any Supreme Court precedent suggesting that the state
court’s decision was contrary to, or involved an unreasonable
application of, federal law (here, Strickland and its progeny).
Nor has he demonstrated that the court erred when it concluded
that trial counsel made an entirely reasonable (and
constitutionally permissible) tactical decision not to seek a
limiting instruction.

Giddens’ remaining claims require little discussion.

At

worst, they are fanciful (e.g., his claim that trial counsel
should have retained an expert on body language after a police
officer testified, in passing, that at one point during the
interview, Giddens put his feet up on the desk and had his hands
behind his head).

At best, they are off the mark (e.g., his

claim that trial counsel should have impeached the victim with
her allegedly inconsistent descriptions of her attacker, despite
the fact that Giddens acknowledged having sexual intercourse with

10

her and based his defense to the rape charge on the claim that it
was consensual).3

Conclusion
For the foregoing reasons, petitioner has failed to
demonstrate that the state courts resolved his federal
constitutional claims in a way that was contrary to, or involved
an unreasonable application of, clearly established federal law.
Nor has he shown that any of those decisions was based on an
unreasonable determination of the facts in light of the record
evidence.

See 28 U.S.C. § 2254(d).

Moreover, even if his claims

were subject to the more petitioner-friendly de novo standard of
review, he would not be entitled to habeas corpus relief.

In

short, he has not shown that he was deprived of any federally
protected constitutional rights, either during the course of his
trial or on direct appeal.

The respondent’s motion for summary judgment (document no.
18) is granted.

The petitioner’s motion for summary judgment

(document no. 22) is denied, as is his petition for a writ of

3

Of course, the DNA evidence linking Giddens to the
victim virtually precluded any plausible defense based upon
mistaken identity - hence, Giddens’ decision to assert that his
sexual relations with the victim were consensual, and the lack of
any need for counsel to question or undermine the victims’
identification of Giddens as her assailant.
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habeas corpus (documents no. 1 and 11).

The Clerk of Court shall

enter judgment in accordance with this order and close the case.

Because Giddens has not “made a substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), the
court declines to issue a certificate of appealability.
Petitioner may, however, seek such a certificate from the court
of appeals under Federal Rule of Appellate Procedure 22(b).

See

Rule 11, Federal Rules Governing Section 2254 Cases (2010); 28
U.S.C. § 2253(c).
SO ORDERED.
____________________________
Steven J. McAuliffe
Chief Judge
May 25, 2011
cc:

Douglas Giddens, pro se
Elizabeth C. Woodcock, Esq.

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