Mentus v. NH State Prison, Warden

Filing 7

ORDER denying without prejudice to filing a properly supported motion for summary judgment re: 6 Motion for Summary Judgment. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Adam Mentus
v.

Civil No. 12-cv-447-JD
Opinion No. 2013 DNH 137

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.

Mentus challenges

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

The warden moves for summary

Mentus has not responded to the 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).

When a motion for summary judgment is unopposed, the

court nevertheless must consider the motion under the summary
judgment standard.

Sanchez-Figueroa v. Banco Popular de P.R.,

527 F.3d 209, 212 (1st Cir. 2008).

Background1
Mentus and Nathan Caron went to a firearms store where Caron
bought a handgun.

Later in the day, Mentus and three others

planned to go to a sandpit to fire the gun.

Deirdre Budzyna got

into the car to drive to the sandpit, and Mentus sat behind her
in the car.
Moments after getting into the car, Mentus took the loaded
gun out of his pocket.
fired.

The bullet went through the seat and hit Budzyna,

puncturing her lung.
911.

As he held the gun in his right hand, it

She got out of the car, and Menus called

Budzyna later died at the hospital.
Mentus was charged with manslaughter.

Because he was

indigent, Mentus was represented by counsel from the New
Hampshire Public Defender’s office.

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.

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The court

The background information is taken from State v. Mentus,
162 N.H. 792 (2011).
2

held a hearing and initially authorized $750.00.

Because that

was not enough to hire Danas, counsel asked the court to
reconsider the allocation.

On reconsideration, the court

authorized $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 did testify on behalf of the

state.
In his closing argument at trial, the prosecutor said:
There’s always a risk. The way we handle guns that are
even unloaded. Once its loaded, there’s a risk, and
you can’t let it bump into something. And while it may
[misfire] when you drop it on the ground, what does
that mean? . . . That means you shouldn’t drop it on
the ground. If you’ve got that gun and its loaded,
[it] better be in your holster with a triple safety.
And when you pull it out, you better not drop it on the
ground or you’re responsible for that.
Mentus, 162 N.H. at 798.

Defense counsel objected that the

prosecutor’s statement meant that a person would be reckless per
se if he dropped a gun which was a misstatement of the law.

The

trial judge overruled the objection.
Mentus was convicted of manslaughter.

On appeal, Mentus

challenged the trial court’s decision to authorize only $1,200.00
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for his expert witness, rather than the full amount he requested,
and the trial court’s failure to sustain the defense’s objection
to the prosecutor’s closing argument.

The New Hampshire Supreme

Court reviewed both issues under the state law “unsustainable
exercise of discretion standard.”

Id. at 795 (citing State v.

Sweeney, 151 N.H. 666, 675 (2005)), & 798 (citing State v.
Sanchez, 152 N.H. 625, 628 (2005)).

The trial court’s decisions

were affirmed.

Discussion
In support of relief under § 2254(d), Mentus raises two
claims.

He contends that his conviction was based on a denial of

his rights under the Fifth, Sixth, and Fourteenth Amendments when
the state court denied him sufficient funds to hire a firearms
expert, despite his indigency.

He also contends that his rights

to a fair trial under the Fifth and Fourteenth Amendments were
denied because the trial court did not sustain his objection to
the prosecutor’s closing argument.

The warden argues that

Mentus’s claims are not exhausted or procedurally defaulted,
cannot be reviewed by this court, or lack merit.

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A.

Claims
The warden interprets Mentus’s first claim, challenging the

state court decision to provide less than the amount requested
for an expert witness, as four separate claims:

ineffective

assistance of counsel, denial of the right to a fair trial due to
insufficient expert witness funds, denial of his right to due
process, and denial of his right to equal protection.
is mistaken.

The warden

As the magistrate judge explained in the order

directing service, Mentus raises two claims that allege
violations of several constitutional rights: (1) the trial court
denied him sufficient funds to hire an expert witness which
violated his right to the effective assistance of counsel under
the Sixth Amendment, the due process right to present a defense
under the Fifth and Fourteenth Amendments, and his right to equal
protection under the Fourteenth Amendment;2 and (2) the trial
court failed to sustain his objection to the prosecutor’s closing
argument which violated his right to a fair trial under the Fifth
and Fourteenth Amendments.

2

The rights of indigent defendants to the tools necessary to
present a defense may implicate the Sixth Amendment right to the
assistance of counsel, the Fifth and Fourteenth Amendment rights
to due process, and the Fourteenth Amendment right to equal
protection. See Ake v. Oklahoma, 470 U.S. 68, 76-77 & 87 n.13
(1985); Strickland v. Washington, 466 U.S. 668, 686 (1984).
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Therefore, to the extent the warden’s motion is premised on
additional claims, not identified by the magistrate judge, the
motion does not address Mentus’s petition and is not considered.

B.

Exhaustion and Procedural Default
The warden primarily attacks Mentus’s claims on procedural

grounds.

He argues that the claim about funds for an expert

witness was not exhausted or is procedurally defaulted.

That

argument is contrary to the magistrate judge’s preliminary
review, but the warden does not distinguish the magistrate’s
analysis.

Doc. 3 at 3.

Therefore, the warden has not shown that

he is entitled to summary judgment on those grounds.
The warden also argues that because the New Hampshire
Supreme Court ruled that the prosecutor did not misstate the
applicable law in his closing argument based on state law, that
decision cannot be reviewed here.
mistaken.

The warden appears to be

The New Hampshire Supreme Court did not reject that

claim because Mentus failed to meet a procedural requirement.
See Olszewski v. Spencer, 466 F.3d 47, 62 (1st Cir. 2006).
Instead, the supreme court decided under New Hampshire law “that
the trial judge’s overruling of the defendant’s objection was not
an unsustainable exercise of discretion.”
799.
6

Mentus, 162 N.H. at

C.

Review under Section 2254
Mentus challenges the legal basis, not the factual basis,

for the state court’s decision.3

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.”
2254(d).

28 U.S.C. §

If the state court relied exclusively on state law in

deciding the claim, this court uses a de novo standard to review
the claim.
2011).

Wright v. Marshall, 656 F.3d 102, 107-08 (1st Cir.

A state court decision that relies on state law which is

at least as protective of the defendant’s rights as federal law,
however, is reviewed under the deferential standard.

Morgan v.

Dickhaut, 677 F.3d 39, 49 (1st Cir. 2012).
The warden recites the deferential standard of review under
§ 2254(d) but then states that “[t]he state court applied state
law in examining the petitioner’s claim.”

3

Doc. 6 at 7.

The

The warden states that the New Hampshire Supreme Court’s
ruling that the prosecutor did not misstate the law in his
closing argument is a factual finding about the prosecutor’s
intent. The court disagrees.
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warden does not acknowledge the different standards of review or
explain which should apply.

To the extent the warden addresses

Mentus’s claims on the merits, the analysis does not explicitly
apply either standard.

In addition, the warden has not clearly

presented applicable Supreme Court precedent to show that he is
entitled to summary judgment on the merits of the claims.

Conclusion
For the foregoing reasons, the warden’s motion for summary
judgment (document no. 6) is denied without prejudice to filing a
properly supported motion for summary judgment.

SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
October 10, 2013
cc:

Adam Mentus #84710, pro se
Elizabeth C. Woodcock, Esquire

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