Mentus v. NH State Prison, Warden

Filing 19

///ORDER granting 8 Motion for Summary Judgment. Court declines to issue a certificate of appealability. Clerk shall enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(gla) Modified on 5/29/2014 to add: certificate of appealability text(dae).

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Adam Mentus
v.

Civil No. 12-cv-447-JD
Opinion No. 2014 DNH 119

Warden, New Hampshire
State Prison
O R D E R
Adam Mentus, proceeding pro se, filed a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254.

In his petition,

Mentus challenged his state court manslaughter conviction on the
grounds that the state court violated his Fifth, Sixth, and
Fourteenth Amendment rights by failing to authorize the full
amount he requested to hire a gun expert and that the
prosecutor’s closing argument violated his right to a fair trial
under the Fifth and Fourteenth Amendments.
summary judgment.1

The warden moves for

Mentus objects to the motion for summary

judgment only as to his claim based on funding for an expert
witness and concedes summary judgment as to his claim based on
the prosecutor’s closing argument.2

1

The warden’s first motion for summary judgment, which was
unopposed, was denied without prejudice because of errors and
insufficient support.
2

After the warden filed the second motion for summary
judgment, Mentus moved for appointment of counsel to represent
him. The motion was granted. Mentus’s first appointed counsel
withdrew, and new counsel was appointed on January 13, 2014.
Mentus has been represented since that time and is represented
for purposes of the summary judgment motion.

Standard of Review
In habeas proceedings as in other civil cases, “[s]ummary
judgment is proper if there is no genuine issue as to any
material fact and the undisputed facts show that the moving party
is entitled to judgment as a matter of law.”

Kuperman v. Wrenn,

645 F.3d 69, 73 (1st Cir. 2011); see also Fed. R. Civ. P.
81(a)(4).

Background3
In June of 2008, Mentus and his friend, Nathan Caron, drove
to a firearms store where Caron bought a handgun.

Later in the

day, Mentus and three others, including Deirdre Budzyna, planned
to go to a sandpit to fire the gun.
leaving.

Mentus loaded the gun before

Budzyna was driving, and Mentus sat behind her.

Moments after getting into the car, Mentus took the loaded
gun out of his pocket to put it under his seat.

As he reached

down with the gun in his right hand, it fired.

The bullet went

through the seat and hit Budzyna, puncturing her lung.
out of the car, and Mentus called 911.

She got

Budzyna later died at the

hospital.
Mentus was charged with manslaughter.

Because he was

indigent, Mentus was represented by counsel from the New

3

The warden did not provide a factual statement in support
of the second motion for summary judgment but, instead,
incorporated by reference the factual statement from the original
motion. But see LR 7.1(a)(3). The court relies on the facts
provided in State v. Mentus, 162 N.H. 792 (2011).
2

Hampshire Public Defender’s office.

The defense intended to

pursue a theory that the gun had misfired.
Before trial, counsel asked the court to authorize, pursuant
to RSA 604-A:6, payment of $3,000.00 to hire Gregory Danas as a
firearms expert.

The court held a hearing and stated that an

explanation was needed as to why $3,000.00 was necessary for the
expert.

The court initially authorized $750.00 but said that the

amount would be increased if detailed information was provided
about what the expert would do for $3,000.00.

The court

increased the allocation to $1,200.00, which was still not enough
to hire Danas.
Instead of Danas, the defense hired a lawyer who was
involved in litigation against firearm manufacturers to serve as
the firearms expert.

The court ruled that the lawyer was not

qualified to testify as an expert.

As a result, Mentus did not

have a firearms expert at trial to support his defense that the
gun misfired.
A firearms expert examined the gun and testified on behalf
of the state.

On examination of the gun, the state’s expert

found the safety and trigger pull to be in good working order.
The expert found a warning that the model of gun could fire if it
were dropped, creating an extremely dangerous situation.

The

expert tested the gun for that problem, but the gun did not
misfire.

The expert testified as to all of that information at

trial.

3

Mentus was convicted of manslaughter and was sentenced to
ten to twenty years in prison.

On appeal, Mentus challenged the

trial court’s decision to authorize only $1,200.00 for his expert
witness, rather than the full amount he requested.

The trial

court’s decisions were affirmed by the New Hampshire Supreme
Court.

Discussion
In support of summary judgment, the warden contends that the
state court’s decision affirming the trial court’s rulings on
funding for an expert witness was not contrary to or an
unreasonable application of Supreme Court precedent.

Mentus

objects to summary judgment, arguing that the de novo standard of
review applies and that the New Hampshire Supreme Court’s
decision violates his due process rights.

A.

Review under Section 2254
When a habeas petitioner’s claim was adjudicated on the

merits in state court, the petitioner must show that the state
court’s decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States; or [] 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).

If, however, the federal

claim was not adjudicated on the merits, a de novo standard
4

applies.

Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001),

accord Wright v. Marshall, 656 F.3d 102, 107-08 (1st Cir. 2011).
“When a federal claim has been presented to a state court and the
state court has denied relief, 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 v. Richter, 131 S. Ct. 770, 784-85 (2011).
In the trial court and on appeal, Mentus raised both federal
constitutional grounds and state law grounds to support his
request for funds to hire an expert witness.

The New Hampshire

Supreme Court reviewed Mentus’s expert claim under state law,
stating that “‘[r]egardless of whether a defendant has invoked
equal protection, fundamental fairness necessary for due process,
or the right to services to enable his counsel to assist him
effectively, an indigent defendant’s access to experts has been
said to lie within the sound discretion of the court.’”

Mentus,

162 N.H. at 795 (quoting State v. Wellington, 150 N.H. 782, 784
(2004)).

The supreme court further stated that “to succeed on

appeal the defendant ‘must demonstrate by clear and convincing
evidence that his request to the court included as complete a
showing of necessity for the desired services as could be
expected of him, and that the denial of funds substantially
prejudiced him at trial.’”

Mentus, 162 N.H. at 796 (quoting

Wellington, 150 N.H. at 784).

The court concluded under the

state law standard that Mentus failed to show that he had been
prejudiced, and affirmed the trial court’s decision.
5

Here, the warden contends that although the state court did
not address Mentus’s federal claim, the deferential standard of
review applies because the state standard is the “functional
equivalent” of the federal standard.

Mentus argues that his

claim should be addressed under the de novo standard because the
New Hampshire Supreme Court did not decide his federal claim on
the merits.

It is not necessary to resolve the issue of which

standard applies here because even under the de novo standard,
Mentus’s petition fails.

See Kirwan v. Spencer, 631 F.3d 582,

587-88 (1st Cir. 2011).

B.

Expert Witness Claim
The court “shall entertain an application for a writ of

habeas corpus in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties of
the United States.”

§ 2254(a).

In his petition, Mentus alleged

that the state court violated his Fifth, Sixth, and Fourteenth
Amendment rights by denying him the full amount he requested to
hire a firearms expert witness for his defense.

For purposes of

opposing summary judgment, Mentus argues only that due process
required the state to provide him the funds he requested for a
gun expert at trial.
The Supreme Court has held that states must provide indigent
criminal defendants “with the basic tools of an adequate defense
. . . .”

Britt v. North Carolina, 404 U.S. 226, 227 (1971).
6

Based on that requirement, the Supreme Court recognized an
indigent criminal defendant’s right to have access to a mental
health expert when the defendant’s mental health will be a
significant factor at trial.4
(1985).

Ake v. Oklahoma, 470 U.S. 68, 83

Although indigent criminal defendants are entitled to

“an adequate opportunity to present their claims within the
adversary system,” Ross v. Moffitt, 417 U.S. 600, 612 (1974),
they are not necessarily entitled to all requested services or to
the expert of their choice, Ake, 470 U.S. at 83.
The trial court provided funds for the defense to hire a gun
expert in Mentus’s case.

Mentus contends that because the funds

provided were insufficient to hire the expert he had chosen, his
due process rights were violated.

Mentus argues that a gun

expert was necessary to help his counsel prepare to cross examine
the state’s gun expert as well as to counter the testimony of the
state’s gun expert.

Mentus also argues that his counsel was

4

The Supreme Court has not decided if or when an indigent
criminal defendant would be entitled to the assistance of an
expert witness for matters other than mental health. Caldwell v.
Mississippi, 472 U.S. 320, 323 n.1 (1985); see also Gary v. Hall,
558 F.3d 1229, 1254 (11th Cir. 2009); Soto v. Adams, 2012 WL
4936479, at *7 (C.D. Cal. June 8, 2012). The First Circuit has
not addressed the issue of whether the rule in Ake would apply to
non-psychiatric expert witnesses. Other federal courts have come
to different conclusions about the application of Ake in contexts
outside of mental health. See Babick v. Berghuis, 620 F.3d 571,
579 (6th Cir. 2010); United States v. Rodriguez-Felix, 450 F.3d
1117, 1127 (10th Cir. 2006); Bridges v. Beard, --- F. Supp. 2d --, 2013 WL 1742305, at *66, n.17 (E.D. Pa. Apr. 23, 2013); see
also Blanco v. Sec’y, Fl. Dep’t of Corrs., 688 F.3d 1211, 1228-29
(11th Cir. 2012); Wogenstahl v. Mitchell, 668 F.3d 307, 340 (6th
Cir. 2012).
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forced to “bargain shop” for an expert, which resulted in hiring
an expert who was not qualified and was not permitted to testify.
While Mentus states that the expert of his choice was not
available with the limited funds provided and that the expert the
defense hired was not qualified, he does not show or even argue
that no competent expert was available.

As is noted above, due

process does not require that indigent defendants be provided
“all the assistance that [a] wealthier counterpart might buy.”
Ake, 470 U.S. at 77.
In addition, the New Hampshire Supreme Court found that
Mentus’s misfire theory was not plausible because his various
versions of how the shooting occurred were not consistent with
the way in which that particular gun could have misfired.
Mentus, 162 N.H. at 796-97.
finding here.

Mentus does not challenge that

See § 2254(e)(1).

The New Hampshire Supreme Court

also concluded that the jury could have found that Mentus’s
conduct was reckless within the meaning of the manslaughter
statute, whether or not the gun misfired.5

Id. at 797-98.

Those

findings undermine the significance of a gun expert for Mentus’s
defense.
Therefore, Mentus has not shown that he is incarcerated
because the state court’s decision to provide $1,200 instead of

5

Despite his knowledge of gun safety rules and his knowledge
that his conduct violated those rules, Mentus brought a loaded
gun into the car and handled the gun, pointing it at Budzyna’s
seat, without checking to see if the safety was on.
8

$3,000 for the defense to hire a gun expert violated his due
process rights.

Conclusion
For the foregoing reasons, the warden’s motion for summary
judgment (document no. 8) is granted.
The petition for habeas corpus relief (document no. 1) is
denied.
Because there is no substantial showing of the denial of a
constitutional right within the meaning of 28 U.S.C.
§ 2253(c)(2), the court declines to issue a certificate of
appealability.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
May 29, 2014
cc:

David W. Ruoff, Esq.
Elizabeth C. Woodcock, Esq.

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