Russo v. New Hampshire, State of
Filing
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ORDER denying without prejudice 10 Motion to Appoint Counsel. The Court directs Petitioner to file an amended petition within 30 days of the date of this order to avoid dismissal of his petition. So Ordered by Magistrate Judge Landya B. McCafferty.(gla) Modified on 4/10/2012 to add text regarding time to amend petition: (jab).
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Amato John Russo
v.
Civil No. 11-cv-587-SM
Warden, New Hampshire State Prison
O R D E R
Before the court is pro se petitioner Amato John Russo’s
writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, and
the addenda thereto (doc. nos. 1, 16 and 17) (hereinafter “the
petition”).
The petition challenges Russo’s conviction and
extended sentence on charges of solicitation of witness
tampering in state court.
The petition is here for preliminary
review to determine whether or not the claims are facially valid
and cognizable in an action for federal habeas relief pursuant
to § 2254.
See Rule 4 of the Rules Governing Section 2254 cases
in the United States District Courts (“§ 2254 Rules”).
Also
pending before the court is Russo’s motion for appointment of
counsel (doc. no. 10).
For reasons set forth below, the motion for appointment of
counsel (doc. no. 10) is denied without prejudice to Russo’s
filing such a motion in the future if an evidentiary hearing is
scheduled or other circumstances warrant the appointment of
counsel.
In addition, as specified below, Russo is ordered to
amend his petition to clarify the basis of his claims of
prosecutorial misconduct and malicious prosecution, and to show
that he has exhausted all of his federal due process claims.
Background
The following background is derived from Russo’s petition
(doc. nos. 1, 16 and 17); Russo’s motion for appointment of
counsel (doc. no. 10); and the New Hampshire Supreme Court
(“NHSC”) order affirming the conviction and sentence at issue,
see State v. Russo, No. 2009-0870 (N.H. Jan. 21, 2011).
On February 19, 2009, Russo was tried before a jury on
charges of solicitation of witness tampering, see N.H. Rev.
Stat. Ann. (“RSA”) §§ 629:2, I, and 641:5, I.
Russo has
asserted that the State’s only witness, Dave Ligocki, was and
continues to be “mentally unstable,” and that the State did not
inform Russo of that fact.
Additionally, Russo has asserted
that the prosecutor engaged in “misconduct” in connection with
Russo’s trial and/or sentencing, and that the prosecution was
“malicious.”
The jury convicted Russo after the February 2009 trial, and
a sentencing hearing followed in October 2009.
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At the
sentencing hearing, the State identified three predicate
convictions and sentences upon which it based a request for an
extended sentence, namely, a prior five to ten year stand
committed sentence, and two originally suspended sentences which
were imposed upon Russo between the February 2009 trial and the
October 2009 sentencing hearing.
The trial court accepted the
State’s recommendation and imposed an extended sentence,
pursuant to RSA § 651:6, II(a).1
Russo appealed his conviction to the NHSC, claiming, among
other things, that the trial court committed plain error by
sentencing him to an extended term of imprisonment because, at
the time the State notified him of its intent to seek an
extended term, the predicate sentences were suspended, and
suspended sentences could not be used as a basis for an extended
sentence.
The NHSC affirmed Russo’s conviction, specifically
declining to find plain error in the sentence because the NHSC
had not yet had occasion to clarify whether under RSA § 651:6,
1
RSA § 651:6, II(a), provides, in pertinent part:
A convicted person may be sentenced [to an extended
term of imprisonment] if the court finds, and includes
such findings in the record, that such person:
(a) Has twice previously been convicted in this state,
or in another jurisdiction, on sentences in excess of
one year.
Id.
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II(a), a suspended sentence, imposed prior to sentencing,
qualifies as a basis for an extended sentence.
See Russo, slip
op. at 2.
Russo filed the instant petition for federal habeas relief
on January 9, 2012.
In the petition, Russo asserts that he has
new evidence proving his innocence, and that his conviction and
sentence violated his federal constitutional rights, as follows2:
1.
The imposition of an extended sentence violated
Russo’s Fourteenth Amendment right to due process because,
as a matter of state law, (a) the predicate “convictions”
at issue included a parole violation, and parole violations
do not constitute “convictions”; and (b) two of the
predicate sentences were suspended at the time the State
notified Russo of its intent to seek an extended sentence,
and a suspended sentence imposed prior to sentencing but
after conviction on the subsequent offense does not qualify
as a predicate for an extended sentence.
2.
The imposition of an extended sentence violated
Russo’s Fourteenth Amendment right to due process because
the extended sentence statute, RSA 651:6, II(a), was
ambiguous as applied to Russo, and the rule of lenity
applied in such cases precludes the imposition of an
extended sentence.
2
The claims identified herein shall be considered to be the
claims asserted in the petition (doc. nos. 1, 16 and 17). If
Russo disagrees with this identification of the claims, he must
properly file a motion for reconsideration of this order, or a
motion to amend the petition.
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3.
The prosecutor’s failure to disclose pretrial that the
State’s only witness was “unstable” violated Russo’s due
process rights under the Fourteenth Amendment, as construed
in Brady v. Maryland, 373 U.S. 83 (1963), and its progeny.
4.
Russo’s conviction and sentence were obtained in
violation of his Fourteenth Amendment right to due process
because the prosecutor engaged in “misconduct” in
connection with the trial and sentencing hearing.
5.
Russo’s conviction was the product of a malicious
prosecution.
Discussion
I.
Preliminary Review
A.
Standard of Review
Pursuant to § 2254 Rule 4, a judge is required to promptly
examine any petition for habeas relief, and if “it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the
judge must dismiss the petition.”
Id.
In undertaking this
review, the court applies a standard analogous to that used in
reviewing a motion to dismiss filed under Fed. R. Civ. P.
12(b)(6).
The court decides whether the pro se pleadings
contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible and cognizable in a petition
for federal habeas relief.
See Ashcroft v. Iqbal, 556 U.S. 662,
___, 129 S. Ct. 1937, 1949 (2009) (standard of review applicable
in determining if a complaint states viable claims).
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The court
undertakes this preliminary review of the petition with due
consideration for the petitioner’s pro se status.
“As a general
rule, we are solicitous of the obstacles that pro se litigants
face, and while such litigants are not exempt from procedural
rules, we hold pro se pleadings to less demanding standards than
those drafted by lawyers and endeavor, within reasonable limits,
to guard against the loss of pro se claims due to technical
defects.”
Dutil v. Murphy, 550 F.3d 154, 158 (1st Cir. 2008).
In conducting this review, the court may also consider
whether federal habeas relief is barred by the petitioner’s
failure to exhaust state court remedies, a procedural default,
or a statute of limitations defense apparent on the face of the
petition.
See § 2254 Rule 4; Day v. McDonough, 547 U.S. 198,
209-10 (2006) (noting that § 2254 Rule 5(b) places statute of
limitations defense on par with failure to exhaust state
remedies and procedural defaults, and holding that district
courts may dismiss complaint, sua sponte, based upon statute of
limitations, if parties have received fair notice and an
opportunity to present their positions); Oakes v. United States,
400 F.3d 92, 96 (1st Cir. 2005) (district court has discretion
to raise issue of procedural default sua sponte (citing Brewer
v. Marshall, 119 F.3d 993, 999 (1st Cir. 1997))).
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B.
Predicate Issues
1.
Custody
To be eligible for habeas relief on his federal claims,
Russo must show that he is in custody in violation of his
federal constitutional or statutory rights.
§ 2254(a).
See 28 U.S.C.
Russo’s incarceration pursuant to the challenged
conviction and sentence satisfies the § 2254(a) custody
requirement.
2.
Exhaustion
To be eligible for relief under § 2254, a petitioner must
show that he has exhausted the remedies available to him in the
State courts on the federal claims asserted in the habeas
petition, or that State corrective processes are unavailable or
ineffective to protect his rights.
See 28 U.S.C. § 2254(b)(1).
“An applicant shall not be deemed to have exhausted the remedies
available in the courts of the State . . . if he has the right
under the law of the State to raise, by any available procedure,
the question presented.”
Id. § 2254(c).
Unexhausted claims
cannot generally be cited as grounds for granting federal habeas
relief.
See id. § 2254(b).
“[A] petitioner’s failure to
present his federal constitutional claim to the state courts is
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ordinarily fatal to the prosecution of a federal habeas case.”
Coningford v. Rhode Island, 640 F.3d 478, 482 (1st Cir. 2011).
A petitioner’s remedies in New Hampshire may be exhausted
in the state courts through a direct appeal of a criminal
conviction to the NHSC asserting federal claims, or a motion for
a new trial or a petition for writ of habeas corpus filed in the
state courts, with any adverse judgment on any federal claims
presented to the NHSC.
(1st Cir. 1988).
See Lanigan v. Maloney, 853 F.2d 40, 42
“In order to exhaust a claim, the petitioner
must ‘present the federal claim fairly and recognizably’ to the
state courts, meaning that he ‘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 quotations and citation omitted).
“‘The appropriate focus [in an exhaustion inquiry] centers on
the likelihood that the presentation in state court alerted that
tribunal to the claim’s federal quality and approximate
contours.’”
Coningford, 640 F.3d at 482 (emphasis in original)
(quoting Nadworny v. Fair, 872 F.2d 1093, 1098 (1st Cir. 1989)).
Russo has failed to show that he has exhausted the federal
nature of any of the claims asserted in the petition.
The NHSC
decision on Russo’s direct appeal of his conviction does not
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address any issues involving the prosecutor’s failure to
disclose information regarding the “mental instability” of its
only witness, or any claim of a malicious prosecution or alleged
prosecutorial misconduct, apart from the issue of the prosecutor
asking Russo to testify regarding whether another witness lied
on the stand.
Nor does the NHSC order cite any federal cases or
federal law which this court could construe to indicate the
NHSC’s awareness that Russo claimed violations of his federal
rights.
Accordingly, Russo has failed to show that he has
exhausted his state court remedies as to the federal claims
raised in the § 2254 petition.
A more fully developed record may yet demonstrate
exhaustion.
Towards that end, Russo is granted an opportunity
to file as exhibits to an amended § 2254 petition any part of
the documents filed in the NHSC that show that he has exhausted
his state court remedies on each federal claim he asserts here.
The documents to be filed as exhibits are specified in the
conclusion of this Order, below.
C.
Failure to State a Claim
The prosecutorial misconduct and malicious prosecution
claims asserted in the petition (doc. nos. 1, 16, and 17) are
stated in a summary, conclusory manner, without any supporting
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facts.
Lacking any factual allegations elaborating on how the
prosecutor engaged in misconduct or why Russo believes that the
prosecution was malicious, the claims as currently pleaded are
subject to dismissal with prejudice for failure to state a claim
upon which § 2254 relief may be available.
As explained herein,
the court will instead give Russo the opportunity to amend and
adequately state these claims.
The test for whether misconduct rises to the level of a due
process violation “‘is whether the prosecutors’ [misconduct] so
infected the trial with unfairness as to make the resulting
conviction a denial of due process.’”
Towery v. Schriro, 641
F.3d 300, 310 (9th Cir. 2010) (quoting Darden v. Wainwright, 477
U.S. 168, 181 (1986) (citations and internal quotation marks
omitted)), cert. denied, 132 S. Ct. 159 (2011).
If Russo
intends to assert a claim of prosecutorial misconduct as a
ground for federal habeas relief, he must state with specificity
the facts upon which he bases his claim that the prosecutor
engaged in improper conduct, and the manner in which that
misconduct resulted in an unfair trial or sentencing proceeding.
Similarly, Russo has baldly asserted only in conclusory
terms that he was the victim of a malicious prosecution.
It is
unclear whether Russo is asserting that the February 2009 trial
was a malicious prosecution, or whether the claim refers to
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another prosecution or proceeding, and there are no other facts
stated in the petition showing that Russo was prosecuted
maliciously, without probable cause.
As set forth below, the
court will provide Russo with thirty days to file an amended
petition clarifying his claims, and stating the relevant facts
with specificity, if he intends to pursue claims of
prosecutorial misconduct or malicious prosecution in his § 2254
petition.
II.
Motion for Appointment of Counsel
Russo seeks court-appointed counsel on the grounds that he
is indigent, and because he is not a lawyer and believes he
cannot effectively represent himself.
A habeas corpus petition
is a civil action, and there is generally no constitutional
right to the appointment of counsel in a civil case in this
court, see Maroni v. Pemi-Baker Reg’l Sch. Dist., 346 F.3d 247,
257 (1st Cir. 2003), prior to the scheduling of an evidentiary
hearing on the petition, see § 2254 Rule 8(c).
Pursuant to
§ 2254 Rule 8(c), the court must appoint counsel for petitioner
in the event an evidentiary hearing is scheduled.
The court has the discretion to appoint counsel in this
case at any time, and it must do so “if ‘exceptional
circumstances [are] present such that a denial of counsel [is]
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likely to result in fundamental unfairness impinging on [the
litigant’s] due process rights.’”
King v. Greenblatt, 149 F.3d
9, 14 (1st Cir. 1998) (quoting DesRosiers v. Moran, 949 F.2d 15,
23 (1st Cir. 1991)).
To determine if “exceptional
circumstances” warrant the appointment of counsel, “a court must
examine the total situation, focusing, inter alia, on the merits
of the case, the complexity of the legal issues, and the
litigant’s ability to represent himself.”
DesRosiers, 949 F.2d
at 24.
Russo has failed to establish the existence of exceptional
circumstances warranting the appointment of counsel at this
time.
The proceeding remains in a preliminary phase.
At this
time, there is no indication that an evidentiary hearing will be
held.
Before the court would consider whether to direct service
on the respondent or schedule an evidentiary hearing, Russo must
amend his complaint to clarify his claims and to demonstrate
exhaustion of his state court remedies.
Russo’s pleadings, to
date, have been clear, albeit too summary and conclusory, but
the filings generally demonstrate that Russo understands the
proceedings.
There is no indication that Russo will be unable
to adequately amend the petition or otherwise comply with this
court’s orders at this time.
Accordingly, Russo’s motion for
appointed counsel (doc. no. 10) is denied without prejudice to
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Russo renewing the motion if an evidentiary hearing is scheduled
or if he can show that the appointment of counsel is otherwise
warranted.
Conclusion
The motion for appointment of counsel (doc. no. 10) is
denied without prejudice to refiling if an evidentiary hearing
is scheduled or if Russo can show that there are exceptional
circumstances in this case otherwise warranting counsel’s
appointment.
To avoid the dismissal of his § 2254 petition in whole or
in part, the court directs Russo, within 30 days of the date of
this order, to file an amended petition, as follows:
1.
If Russo intends to assert a claim of prosecutorial
misconduct, Russo shall state with specificity in the
amended petition all of the facts forming the basis of
Russo’s claim that the prosecutor engaged in misconduct
resulting in a fundamentally unfair trial or sentencing
proceeding.
2.
If Russo intends to assert a claim of malicious
prosecution, Russo shall state with specificity in the
amended petition all of the facts forming the basis of
Russo’s claim that the State engaged in a malicious
prosecution of Russo.
3.
To demonstrate that all of his federal claims have
been exhausted, Russo shall attach as exhibits to the
amended petition a complete copy of the briefs filed in the
NHSC, the notice of appeal in the NHSC, any appendices or
exhibits to the briefs or the notice of appeal filed in the
NHSC, any state court order addressing his federal claims,
and all other pertinent documents included in the record
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before the NHSC which show whether Russo presented his
federal claims to the NHSC.
Should Russo fail to amend his petition as directed, or
otherwise fail to comply with this order, the court may
recommend that the petition be dismissed, as appropriate, either
in part, for failure to state a claim of malicious prosecution
or prosecutorial discretion, or in toto, for failure to
demonstrate exhaustion of state court remedies as to all of his
claims, see 28 U.S.C. § 2254(b).
SO ORDERED.
__________________________
Landya McCafferty
United States Magistrate Judge
April 9, 2012
cc:
Amato John Russo, pro se
LBM:nmd
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