Hutchinson v. NH State Prison, Warden

Filing 5

ORDER: The Clerk's office is directed to serve the New Hampshire Office of the Attorney General, as provided in the Agreement on Acceptance of Service. Respondent is directed to answer or to otherwise plead within thirty days of the date of this Order. So Ordered by Magistrate Judge Landya B. McCafferty.(ko)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Walter Hutchinson, Jr.
v.

Civil No. 12-cv-376-JL

Richard Gerry, Warden,
New Hampshire State Prison

O R D E R
Walter Hutchinson, Jr. has filed a petition for a writ of
habeas corpus (doc. no. 1) pursuant to 28 U.S.C. § 2254.

The

petition is before the court for preliminary review to determine
whether Hutchinson’s claims are facially valid and cognizable in
a § 2254 action for federal habeas relief.

See Rule 4 of the

Rules Governing Section 2254 cases in the United States District
Courts (“§ 2254 Rules”).
Discussion
I.

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 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 preliminary review

of the petition with due consideration for the petitioner’s pro
se status.

“As 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).
II.

Procedural Background
In 1991, Hutchinson strangled his then-girlfriend, Kimberly

Ernest, causing her severe brain injury which resulted in her
falling into a permanent vegetative state.

After the assault,

Hutchinson was charged with and convicted of attempted murder.
See State v. Hutchinson, 137 N.H. 591, 592, 631 A.2d 523, 523
(1993).
On November 6, 2005, Ernest died.

Hutchinson was

thereafter charged with both first and second degree murder.

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Prior to trial, Hutchinson filed a motion to dismiss the
indictments asserting that his prosecution for murder, arising
out of the same events that gave rise to his attempted murder
conviction fourteen years prior, violated his Fifth Amendment
right not to be subjected to double jeopardy.
denied Hutchinson’s motion to dismiss.

The trial court

Hutchinson filed an

interlocutory appeal of the trial court’s decision in the New
Hampshire Supreme Court (“NHSC”).
court.

The NHSC affirmed the trial

See State v. Hutchinson, 156 N.H. 790, 791, 942 A.2d

1289, 1290 (2008).
In 2009, Hutchinson was tried and convicted of first degree
murder for Ernest’s death.

Hutchinson appealed the conviction

asserting that there was insufficient evidence upon which the
jury could have found, beyond a reasonable doubt, that his
actions were the cause of Ernest’s death.
conviction.

The NHSC affirmed the

See State v. Hutchinson, 161 N.H. 765, 766, 20 A.3d

972, 973 (2011).
After the NHSC affirmed his 2009 conviction, Hutchinson
filed a motion for a new trial in the superior court, alleging
that his 2009 trial counsel was ineffective, in violation of his
rights under the Sixth Amendment, for failing to present expert
testimony to counter the element of premeditation upon which his

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first degree murder conviction relied.
his motion.

The trial court denied

See State v. Hutchinson, No. 06-S-3426, 27, 28

(N.H. Super. Ct., Rockingham Cnty. Jan. 26, 2012).
filed a notice of appeal in the NHSC.
declined the appeal.

Hutchinson

The NHSC subsequently

See State v. Hutchinson, No. 2012-123

(N.H. May 17, 2012).
Hutchinson now brings this action, citing the following
claims for relief:
1.

Hutchinson’s conviction violates his rights guaranteed

by the Fifth Amendment’s Double Jeopardy Clause;
2.

Hutchinson’s conviction violates his Fourteenth

Amendment right to due process because the evidence at trial was
insufficient to prove his guilt beyond a reasonable doubt; and
3.

Hutchinson’s conviction for first degree murder

violates his Sixth Amendment right to the effective assistance
of counsel, because his trial counsel failed to present evidence
at trial to counter the allegation of premeditation.
III. Exhaustion
A person in custody pursuant to a judgment of the state
court may seek a writ of habeas corpus on the grounds that he is
incarcerated in violation of the federal constitution or other
federal law.

See 28 U.S.C. § 2254.

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Section 2254 requires that

each federal claim for relief be exhausted in the state courts
by presenting the federal claim to the state’s highest court for
consideration prior to the filing of a federal habeas action.
See id. at § 2254(b)(1).
Hutchinson has demonstrated that each of his three federal
claims for relief has been exhausted in the state courts, as
each issue has been fairly presented to the NHSC for
consideration, as follows: (1) the Fifth Amendment double
jeopardy issue was presented to the NHSC in Hutchinson’s 2008
interlocutory appeal; (2) the Sixth Amendment ineffective
assistance of counsel claim was presented to the NHSC in the
notice of appeal of Hutchinson’s new trial motion; and (3) the
claim asserting that the evidence was insufficient to support
his conviction, was presented to the NHSC in Hutchinson’s direct
appeal of his 2009 conviction.
IV.

Service
The petition shall be served upon respondent Richard Gerry,

Warden of the New Hampshire State Prison.

Respondent shall file

an answer or other response to the allegations made therein.
See 2254 Rule 4 (requiring reviewing judge to order a response
to the petition).

The Clerk’s office is directed to serve the

New Hampshire Office of the Attorney General, as provided in the

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Agreement on Acceptance of Service, copies of the petition (doc.
no. 1), and this order.
Respondent is directed to answer or to otherwise plead
within thirty days of the date of this Order.

The answer shall

comply with the requirements of § 2254 Rule 5 (setting forth
contents of the answer).

Petitioner is referred to Fed. R. Civ.

P. 5, which requires that every pleading, written motion,
notice, and similar paper, after the petition, shall be served
on all parties.

Such service is to be made by mailing the

material to the parties’ attorney(s).
SO ORDERED.
__________________________
Landya McCafferty
United States Magistrate Judge
May 8, 2013
cc:

Walter Hutchinson, pro se

LBM:jba

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