Schillinger v. NH State Prison, Warden

Filing 26

///ORDER Dismissing Claims 8-12 of the 1 Petition for Writ of Habeas Corpus. The following parties shall be terminated from this case: a)Strafford County Superior Court and b) Judge Bruce E. Mohl. The court directs Schilli nger to file, within thirty days of the date of this order, documents that comprise part of the record before the NHSC, relating to Schillinger's conviction as outlined in this order. So Ordered by Chief Judge Joseph N. Laplante. Notice of Compliance Deadline set for 3/5/13.(cmp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Greg Schillinger
v.

Civil No. 12-cv-423-JD

New Hampshire State Prison Warden,
et al.1
ORDER
Greg Schillinger, appearing pro se, has filed a petition for
a writ of habeas corpus, pursuant to 28 U.S.C. § 2254,
challenging his conviction and sentence on counts of aggravated
felonious sexual assault and felonious sexual assault, in State
v. Schillinger, Nos. 00-S-0048 & 0049 (N.H. Super. Ct., Strafford
Cnty.)2

The matter is before the court for preliminary review to

determine whether the claims raised in the petition (doc. nos. 1,
4, 9-13, 15, and 17-22) are facially valid and may proceed.

See

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Schillinger has named as respondents in this action: the
New Hampshire State Prison (“NHSP”) Warden; the New Hampshire
Superior Court at Strafford County; and Superior Court Judge
Bruce Mohl. The proper respondent in a federal habeas petition
brought pursuant to 28 U.S.C. § 2254 is the prisoner’s custodian,
here, NHSP Warden Richard Gerry. See Rule 2 of the Rules
Governing Section 2254 cases in the United States District
Courts. The judge and court named as respondents are therefore
dismissed from this case.
2

The original petition filed by Schillinger (doc. no. 1),
and the addenda thereto (doc. nos. 4, 9-13, 15, and 17-22), are
deemed to be the “petition” in this action for all purposes

Rule 4 of the Rules Governing Section 2254 cases in the United
States District Courts (“§ 2254 Rules”).
§ 2254 Rule 4 Standard
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.

The court decides whether

the petition contains sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face
and cognizable in a federal habeas action.

See McFarland v.

Scott, 512 U.S. 849, 856 (1994) (“Federal courts are authorized
to dismiss summarily any habeas petition that appears legally
insufficient on its face.” (citing § 2254 Rule 4)).

The court

undertakes this review with due consideration for the
petitioner’s pro se status.

“[A]s a general rule, . . . 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).

2

Background
Schillinger is a prisoner at the New Hampshire State Prison
(“NHSP”), serving a sentence for a September 2000 conviction on
counts of felonious sexual assault and aggravated felonious
sexual assault.

See State v. Schillinger, Nos. 00-S-0048 & 0049

(N.H. Super. Ct., Strafford Cnty.).

The New Hampshire Supreme

Court (“NHSC”) affirmed Schillinger’s convictions on October 22,
2002.
2002).

See State v. Schillinger, No. 2000-829 (N.H. Oct. 22,
Schillinger litigated a number of post-conviction motions

in Strafford County Superior Court asserting claims of, among
other things, ineffective assistance of counsel.
Court denied those motions.

The Superior

The NHSC declined to accept

Schillinger’s discretionary appeals of orders denying
Schillinger’s post-conviction motions, in NHSC Case Nos. 2002-134
(N.H. Feb. 27, 2003), and 2003-666 (N.H. Nov. 20, 2003).
Schillinger filed this § 2254 petition in 2012.
Claims
Schillinger’s § 2254 petition (doc. nos. 1, 4, 9-13, 15, and
17-22), liberally construed, asserts the following claims:
1.
Schillinger’s conviction was obtained in violation
of his Fourteenth Amendment right to due process,
because the evidence in Schillinger’s trial was not
sufficient to prove guilt beyond a reasonable doubt, in
that the minor victim’s testimony was ambiguous,

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unreliable, and the product of “false memory
implantation.”
2.
The Superior Court’s denial of Schillinger’s
request to admit expert opinion evidence (in the form
of Dr. Ralph Underwager’s letters) to rebut testimony
as to the reliability of the victim’s testimony,
violated Schillinger’s (a) Fourteenth Amendment right
to due process; and (b) Sixth Amendment right to
compulsory process.
3.
The Superior Court violated Schillinger’s
Fourteenth Amendment right to due process by failing to
provide a preliminary hearing to assess the reliability
of the minor victim’s testimony, as required by State
v. Hungerford, 142 N.H. 110, 119, 697 A.2d 916, 921
(1997).
4.
The Superior Court violated Schillinger’s
Fourteenth Amendment right to due process and Sixth
Amendment right to confrontation of the evidence
against him: (a) by allowing the jury, during the
trial, to view a videotaped interview of the victim;
and (b) by allowing the jury to replay that videotape
during its deliberations.
5.
The Superior Court violated Schillinger’s:
(a) Fourteenth Amendment right to due process; and (b)
Sixth Amendment right to a fair trial before an
impartial jury, by personally selecting the jury
foreperson after reviewing the juror questionnaires.
6.
Schillinger’s conviction was obtained in violation
of his Fourteenth Amendment right to due process, in
that a hostile police chief instituted the prosecution
without probable cause, seeking revenge against
Schillinger and fame for himself.
7.
Schillinger’s counsel provided ineffective
assistance of counsel, in violation of Schillinger’s
Sixth Amendment rights.
8.
The Superior Court violated Schillinger’s
Fourteenth Amendment right to due process by sentencing
him before a psychiatrist examined him to determine
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whether he was a dangerous sexual offender, contrary to
the pre-sentencing examination procedure established by
N.H. Rev. Stat. Ann. (“RSA”) § 173-A:3.
9.
Schillinger’s conviction violated his Fourteenth
Amendment equal protection rights.
10. Evidence derived from the Rollinsford Police
Department’s unlawful search of Schillinger’s
grandfather’s house was used against Schillinger at
trial, in violation of Schillinger’s Fourth Amendment
rights, in that: (a) the search warrant was not
supported by probable cause; and (b) the search
exceeded the scope of the warrant.
11. Evidence derived from the Rollinsford Police
Department’s unlawful arrest of Schillinger was used at
trial, in violation of Schillinger’s Fourth Amendment
rights, in that the arrest was warrantless and not
supported by probable cause.
12. Schillinger has been subjected to conditions of
confinement that violate his federal constitutional
rights.
Discussion
I.

Claims To Be Dismissed (Claims 8-12)
A.

Timing of Psychiatric Examination (Claim 8)

Schillinger has alleged that the Superior Court sentenced
him before a psychiatrist had examined him, contrary to state law
and in violation of his Fourteenth Amendment right to due
process.

The referenced state statute, RSA § 173-A:3, was

repealed in 1983, almost two decades before Schillinger was
sentenced.

Schillinger has not pleaded any facts showing how the

timing or denial of any psychiatric examination relating to his
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sentencing violated his rights to due process.

Accordingly, the

court dismisses Claim 8.
B.

Equal Protection (Claim 9)

Schillinger has asserted that procedures in the state courts
relating to his criminal case violated his equal protection
rights.

Schillinger has stated no facts, however, suggesting a

basis upon which the court could find that he was discriminated
against, or treated differently than any similarly situated
person.

Accordingly, the court dismisses Schillinger’s equal

protection claim, numbered Claim 9 above.
C.

Fourth Amendment (Claims 10-11)

The court construes the petition as intending to assert two
Fourth Amendment claims:

(1) Claim 10, asserting that

Schillinger’s conviction was obtained after the introduction of
evidence at trial derived from an illegal, overbroad search; and
(2) Claim 11, asserting that his conviction was obtained after
the introduction of evidence at trial derived from his unlawful
arrest, where the arrest was warrantless and not supported by
probable cause.
“[W]here the state has provided an opportunity for full and
fair litigation of a Fourth Amendment claim,” however, “a state
prisoner may not be granted federal habeas corpus relief on the
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ground that evidence obtained in an unconstitutional search or
seizure was introduced at his trial.”

Stone v. Powell, 428 U.S.

465, 494 (1976); see also Wallace v. Kato, 549 U.S. 384, 395 n. 5
(2007); Sanna v. Dipaolo, 265 F.3d 1, 8 (1st Cir. 2001) (Fourth
Amendment claims are not cognizable in habeas action unless
“petitioner had no realistic opportunity to litigate his Fourth
Amendment claim fully and fairly in the state system.”).

The

petitioner bears the burden of showing that his case “fits within
the contours of the exception.”

Sanna, 265 F.3d at 8.

Here, Schillinger has asserted no facts suggesting that he
lacked an opportunity to litigate his Fourth Amendment claims
fully and fairly in the state system.

Accordingly, the court

dismisses Schillinger’s Fourth Amendment claims (Claims 10-11).
D.

Conditions of Confinement (Claim 12)

Schillinger has alleged that:

(a) his access to the library

was improperly limited; (b) he was shackled, “tortured,” and
abused while in the NHSP, at the Secure Psychiatric Unit, and/or
in the custody of the Merrimack County Sheriff’s Department; (c)
prison officials have interfered with his legal mail; (d) his
free speech rights have been improperly restricted; (e) his food
has been poisoned; and (f) he has suffered retaliatory harm as a
result of his exercise of his federal constitutional rights

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during his incarceration.

Such allegations may give rise to

civil rights claims concerning the conditions of Schillinger’s
confinement, but do not form the basis for a federal habeas
action challenging the fact or duration of that confinement.
See Preiser v. Rodriguez, 411 U.S. 475, 494 (1973) (traditional
purpose of habeas corpus is to challenge fact or duration of
confinement); Glaus v. Anderson, 408 F.3d 382, 387 (7th Cir.
2005) (“While the Supreme Court has left the door open a crack
for habeas corpus claims challenging prison conditions, it has
never found anything that qualified.”).

The court therefore

dismisses the claims challenging the conditions of Schillinger’s
confinement (Claim 12), without prejudice to Schillinger’s
ability to file a prisoner civil rights complaint pursuant to 42
U.S.C. § 1983.
II.

Exhaustion (Claims 1-7)
A.

Standard

To be eligible for relief under § 2254 on Schillinger’s
remaining claims, Claims 1-7 numbered above, Schillinger must
show that he has exhausted the remedies available to him in the
State courts, or that State corrective processes are unavailable
or ineffective to protect his rights.
§ 2254(b)(1).

See 28 U.S.C.

Unexhausted claims may not be cited as grounds for

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federal habeas relief.

See id.; Coningford v. Rhode Island, 640

F.3d 478, 482 (1st Cir. 2011).

The exhaustion requirement

applies to all claims asserted by a petitioner in a single § 2254
petition; a petition including exhausted claims and unexhausted
claims is subject to dismissal.

See Nowaczyk v. Warden, 299 F.3d

69, 75 (1st Cir. 2002).
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 the adverse judgment on any federal claims presented
to the NHSC.
1988).

See Lanigan v. Maloney, 853 F.2d 40, 42 (1st Cir.

The focus of the exhaustion inquiry centers on the NHSC

docket, and whether the presentation of the issues in the state’s
highest court “‘alerted that tribunal to the claim’s federal
quality and approximate contours.’”

Coningford, 640 F.3d at 482

(citation omitted).
B.

Sufficiency of Evidence (Claim 1)

Claim 1 is Schillinger’s claim that the evidence in his
trial was insufficient for a conviction:
Claim 1. Schillinger’s conviction was obtained in
violation of his Fourteenth Amendment right to due
process, because the evidence in Schillinger’s trial
was not sufficient to prove guilt beyond a reasonable
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doubt, in that the minor victim’s testimony was
ambiguous, unreliable, and the product of “false memory
implantation.”
In Case No. 2000-829, the NHSC considered and rejected on the
merits essentially the same claim.

Cf. Mulnix v. Sec’y for Dep’t

of Corrs., 254 F. App’x 763, 764-65 (11th Cir. 2007) (finding
that federal due process claim was exhausted when state courts
reviewed sufficiency of evidence claim using standard set forth
in Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

Therefore,

Claim 1 is exhausted.
C.

Remaining Claims (Claims 2-7)

Schillinger has asserted that he litigated more than 160
post-conviction motions in state Superior Court prior to filing
this § 2254 petition.

The NHSC docket includes records of only

two appeals, however, relating to Schillinger’s post-conviction
proceedings:

NHSC Case Nos. 2002-134 and 2003-666.

Schillinger

has not provided this court with the notices of appeal in those
cases.

Nor has he filed the underlying Superior Court orders

from which those appeals were taken.

Furthermore, Schillinger

has not provided this court with a copy of the notice of appeal
and briefs filed in his direct appeal, in NHSC Case No. 2000-869.
This court thus cannot conclude that Schillinger presented all of
his federal claims to the NHSC.

Therefore, the court finds that

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Schillinger has not demonstrated exhaustion of state remedies as
to Claims 2-7.
Accordingly, the court directs Schillinger to file, as
exhibits in this court, those portions of the NHSC record that
show whether Schillinger exhausted his state remedies on the
following claims (numbered Claims 2-7):
Claim 2. The Superior Court’s denial of Schillinger’s
request to admit expert opinion evidence at trial (in
the form of Dr. Ralph Underwager’s letters) to rebut
testimony as to the reliability of the victim’s
testimony, violated Schillinger’s (a) Fourteenth
Amendment right to due process; and (b) Sixth Amendment
right to compulsory process.
Claim 3. The Superior Court violated Schillinger’s
Fourteenth Amendment right to due process by failing to
provide a preliminary hearing to assess the reliability
of the minor victim’s testimony, as required by State
v. Hungerford, 142 N.H. 110, 119, 697 A.2d 916, 921
(1997).
Claim 4. The Superior Court violated Schillinger’s
Fourteenth Amendment right to due process and Sixth
Amendment right to confrontation of the evidence
against him: (a) by allowing the jury, during the
trial, to view a videotaped interview of the victim;
and (b) by allowing the jury to replay that videotape
during its deliberations.
Claim 5. The Superior Court violated Schillinger’s:
(a) Fourteenth Amendment right to due process; and (b)
Sixth Amendment right to a fair trial before an
impartial jury, by personally selecting the jury
foreperson after reviewing the juror questionnaires.
Claim 6. Schillinger’s conviction was obtained in
violation of his Fourteenth Amendment right to due
process, in that a hostile police chief instituted the

11

prosecution without probable cause, seeking revenge
against Schillinger and fame for himself.
Claim 7. Schillinger’s counsel provided ineffective
assistance of counsel, in violation of Schillinger’s
Sixth Amendment rights.
Conclusion
For the foregoing reasons, the court dismisses the claims
identified in this order as Claims 8-12.

The clerk shall drop

the respondent court and respondent judge from this case.
The court directs Schillinger to file, within thirty days of the
date of this order, the following documents that comprise part of
the record before the NHSC, relating to Schillinger’s conviction:
A.
A copy of any briefs, notices of appeal,
appendices, exhibits, motions, and orders of the
Superior Court and the NHSC included in the NHSC docket
in State v. Schillinger, No. 2000-829, relevant to this
court’s exhaustion inquiry;
B.
A copy of any notice of appeal, appendices,
exhibits, motions, and orders of the Superior Court and
the NHSC included in the NHSC docket in State v.
Schillinger, No. 2002-134, relevant to this court’s
exhaustion inquiry; and
C.
A copy of any notice of appeal, appendices,
exhibits, motions, and orders of the Superior Court and
the NHSC included in the NHSC docket in State v.
Schillinger, No. 2003-666, relevant to this court’s
exhaustion inquiry.
When the court receives Schillinger’s response to this
order, or upon the expiration of the time allotted for
Schillinger to file a response, the court will consider whether
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to serve the petition, dismiss it for lack of exhaustion, or
enter any other appropriate order.
SO ORDERED.

Joseph Laplante
United States District Judge
Dated: February 1, 2013
cc:

Greg Schillinger, pro se

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