Kerner v. NH Department of Corrections, Commissioner

Filing 6

ORDER denying without prejudice 5 Motion to Appoint Counsel; denying without prejudice 1 Motion to Stay the statute of limitations. Within 30 days of the date of this Order, Petitioner must file either a motion to stay his § 2254 petition or motion to amend his § 2254 petition. So Ordered by Judge Steven J. McAuliffe.(jab)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Mark A. Kerner,
Petitioner
v.

Case No. 13-cv-132-SM
Opinion No. 2013 DNH 100

Edward Reilly, Warden,
Northern New Hampshire
Correctional Facility; and
William L. Wrenn, Commissioner,
New Hampshire Department of
Corrections,
Respondents
O R D E R
Before the court are petitioner Mark A. Kerner’s petition
for a writ of habeas corpus (doc. no. 3); Kerner’s motion to stay
the statute of limitations applicable to the petition, which the
clerk docketed as part of the petition (doc. no. 1); and Kerner’s
motion for appointment of counsel (doc. no. 5).

The matter is

here for preliminary review to determine whether the claims
raised in the petition are facially valid and may proceed.

See

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

Background
On June 24, 2009, a jury in the New Hampshire Superior Court
at Hillsborough County, Southern District, convicted Kerner of
five felony and two misdemeanor sexual offenses.

On September

21, 2009, Kerner was sentenced to a lengthy prison term.

Kerner

filed a direct appeal of his conviction in the New Hampshire
Supreme Court (“NHSC”).
24, 2010.
2010).

The NHSC denied that appeal on September

See State v. Kerner, No. 2009-0709 (N.H. Sept. 24,

Kerner next filed a motion for original jurisdiction in

the NHSC, and the NHSC denied that motion on March 10, 2011.
Kerner then filed a state court habeas petition in the New
Hampshire Superior Court at Coos County (“CCSC”), which the CCSC
denied, without a hearing, on April 6, 2012.
appeal that denial to the NHSC.

Kerner did not

Kerner filed another motion for

original jurisdiction, seeking plain-error review of the CCSC
decision, in the NHSC on August 20, 2012.

The NHSC denied the

motion on October 12, 2012.

Claims
Kerner’s § 2254 petition asserts that his conviction, and
therefore his incarceration, are constitutionally infirm.
Specifically, Kerner asserts that:
1.

Kerner’s trial counsel violated his Sixth and
Fourteenth Amendment rights to the effective
assistance of counsel by:
a.

failing to complete a full investigation
prior to trial;

b.

failing to call an expert witness at trial to
testify or provide information to assist the
defense in challenging the victim’s
credibility at trial;

2

c.

failing to question two potential alibi
witnesses;

d.

failing to subpoena at least two potential
witnesses to testify at trial;

e.

failing to discuss with Kerner why certain
witnesses were not subpoenaed to testify at
trial;

f.

failing to keep Kerner adequately informed of
“which way the case was heading” during
trial;

g.

failing to meet with Kerner enough prior to
trial;

h.

failing to review important in camera
documents;

i.

failing to spend sufficient time working on
Kerner’s case;

j.

failing to share exculpatory “Brady” evidence
with Kerner;

k.

failing to present all exculpatory “Brady”
evidence to the jury;

l.

failing to impeach key witnesses with prior
inconsistent statements;

m.

failing to provide an alternative or
secondary defense at trial;

n.

failing to discuss the need for an
alternative or secondary defense with Kerner;

o.

failing to adequately explain to Kerner the
potential risks and benefits of testifying in
his own defense at trial;

p.

failing to have Kerner’s waiver of his right
to testify made in the presence of the trial
judge;

q.

utilizing a litigation strategy and defense
theory other than that proposed by Kerner;

3

r.

failing to gain an acquittal for Kerner where
the state’s case was weak;

s.

failing to request individual voir dire of
all of the jurors who may have been tainted
by a juror who was suspected of improperly
communicating with his wife during trial;

t.

failing to request a mistrial when the jury
deadlocked;

u.

acceding, without consulting Kerner, to an
instruction to the deadlocked jury to
continue to deliberate;

v.

failing to contemporaneously object to a
faulty “deadlocked jury” instruction,
resulting in the failure to preserve the
issue for appeal; and

w.

failing to present inaccuracies in the presentence investigation report to the court
prior to sentencing.

2.

Kerner’s appellate counsel violated his Sixth and
Fourteenth Amendment rights to the effective
assistance of counsel by raising only one
unpreserved issue on appeal, and failing to
present other, preserved, issues on appeal.

3.

The trial court violated Kerner’s Sixth and
Fourteenth Amendment rights to due process and a
fair and impartial jury by:
a.

Denying Kerner’s pretrial motion to have the
prosecutor personally review the state law
enforcement witnesses’ personnel files to
discover any exculpatory evidence therein;

b.

not allowing Kerner to use exculpatory
“Brady” evidence to impeach the state’s
witnesses at trial;

c.

failing to disqualify a juror suspected of
improperly communicating with his wife during
trial;

d.

failing to voir dire the other jurors or to
question the wife of the juror suspected of
4

unauthorized communication to ascertain
whether the alleged unauthorized
communication biased the other jurors;
e.

f.

giving the jury a coercive “deadlocked jury”
instruction;

g.

denying Kerner’s motion to dismiss after the
state presented a case the court described as
“weak” and “thin;” and

h.
4.

failing to declare a mistrial, or to dismiss
and replace, with an alternate, a juror
suspected of unauthorized communication with
his wife during trial, and allowing the
suspect juror to deliberate;

failing to appoint competent counsel to
effectively represent Kerner.

The prosecutor violated Kerner’s Fourteenth
Amendment right to due process by:
a.

b.

5.

appealing to the jurors’ emotions by telling
them that the day of the trial was the day of
the victim’s birthday; and
eliciting and failing to correct statements
made by state witnesses that were
inconsistent with their prior statements.

The CCSC’s denial of Kerner’s state habeas
petition without a hearing violated Kerner’s First
Amendment right to access the court to petition
for a redress of grievances, and Fourteenth
Amendment due process rights.
Discussion

I.

§ 2254 Rule 4 Preliminary Review
A.

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
5

petitioner is not entitled to relief in the district court, the
judge must dismiss the petition.”

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.

“[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).

B.

Exhaustion

To be eligible for relief in a § 2254 petition, Kerner must
show that he has exhausted the remedies available to him in the
state courts on his federal habeas claims, or that state
corrective processes are unavailable or ineffective to protect
his rights.

See 28 U.S.C. § 2254(b)(1).

“[A] petitioner’s

failure to present his federal constitutional claim to the state
courts is ordinarily fatal to the prosecution of a federal habeas

6

case.”

Coningford v. Rhode Island, 640 F.3d 478, 482 (1st Cir.),

cert. denied, 132 S. Ct. 426 (2011).
A claim for habeas corpus relief has been exhausted
where the claim has been fairly presented to the state
courts. Fair presentation means that the petitioner
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.
Dutil, 550 F.3d at 158 (citations and quotation marks omitted).
A petitioner’s remedies in New Hampshire are exhausted when the
NHSC has had an opportunity to rule on the federal claims.

See

id.

A “mixed” petition, one that contains both exhausted and
unexhausted claims, is subject to dismissal for lack of complete
exhaustion.

See Pliler v. Ford, 542 U.S. 225, 233 (2004).

To

avoid dismissal of a mixed petition, a petitioner may move to
amend her or his § 2254 petition to omit the unexhausted claims,
and proceed only on the exhausted claims.

Such a petitioner,

however, will likely lose the chance to seek federal habeas
relief on any foregone claims, due to the habeas statute’s
prohibition of second or successive petitions in 28 U.S.C.
§ 2244(b).

The brief Kerner filed in his direct appeal demonstrates
that he exhausted his state court remedies on only one of the
7

claims asserted in his petition, namely, Claim 3(f) above,
regarding the coercive jury instruction.

See Brief for Defendant

at 12, State v. Kerner, (N.H. March 9, 2009) (No. 2009-0709).
Nothing in the record presently before the court indicates that
any of the other federal claims asserted in this petition have
been presented to the NHSC for consideration.

Accordingly, the

petition in this matter is “mixed,” as it includes an exhausted
claim along with a number of unexhausted claims.

So long as the petition in this action includes unexhausted
claims, it is subject to dismissal.
U.S. 269, 277 (2005).

See Rhines v. Weber, 544

To avoid dismissal, the petitioner may

request that this action be stayed to allow him to return to the
state courts to exhaust his unexhausted federal constitutional
claims, if he can show good cause for failing to exhaust state
remedies previously.

See id. at 278.

In the alternative, the

petitioner may elect to forego his presently unexhausted claims,
and proceed only on his exhausted claims, although in doing so,
he will likely be unable to raise the foregone claims in a habeas
action in the future due to the bar on second or successive
petitions contained in 28 U.S.C. § 2244(a).

II.

Motion for Assistance of Counsel (doc. no. 5)
Kerner has filed a motion seeking court-appointed counsel to

represent him in this matter and in the state courts.
8

“‘[T]here

is no constitutional right to representation by counsel in habeas
corpus proceedings,’ and [the Criminal Justice Act, 18 U.S.C.]
§ 3006A(a)(2) only requires appointment of counsel for a
financially eligible person if ‘the interests of justice so
require.’”

United States v. Yousef, 395 F.3d 76, 77 (2d Cir.

2005) (per curiam) (citation omitted); cf. DesRosiers v. Moran,
949 F.2d 15, 23 (1st Cir. 1991) (district court has discretion to
deny motion to appoint counsel filed by indigent civil litigant
unless counsel’s appointment is necessary to avoid fundamental
unfairness).

The rules governing federal habeas proceedings do

not require counsel’s appointment, unless an evidentiary hearing
is warranted.

See Rule 8(c) of the Rules Governing Section 2254

Cases in the United States District Courts.

Kerner cites his lack of knowledge of the law, his reliance
on other inmates for legal assistance, and the fact that he has
previously filed faulty pleadings in the state courts as reasons
for granting the motion.

Kerner’s situation, however, presents

no exceptional circumstances warranting an appointment of
counsel.

He has demonstrated an ability to clearly present his

claims in the documents he has filed in this court.
evidentiary hearing has been scheduled.

No

The interests of justice

do not require appointment of counsel to assist Kerner at this
time.

9

III.

Motion to Stay Statute of Limitations (doc. no. 1)
Kerner has filed a motion seeking to stay the statute of

limitations applicable to his claims (doc. no. 1), which was
docketed as part of the petition in this action.

Construed as a

motion seeking to file the § 2254 petition out-of-time, the court
notes that the record before this court is presently insufficient
to allow the court to determine whether Kerner’s petition is
time-barred.

The motion is therefore premature.

Construed as a

motion to stay the petition to allow Kerner to exhaust each of
his claims, the motion — in asserting that Kerner did not
previously realize that he had not exhausted all of his remedies
— fails to show good cause for Kerner’s failure to exhaust the
remedies on each claim asserted in the § 2254 petition.

The

motion fails to provide this court with any reason for Kerner’s
prior mistaken beliefs about whether his claims were exhausted.
Kerner’s motion to stay the statute of limitations (doc. no. 1)
is therefore denied without prejudice to Kerner refiling a motion
to stay the petition, if he can show good cause for his previous
failure to exhaust all of his federal constitutional claims.

Conclusion
For the foregoing reasons, the Court directs as follows:
1.

Within thirty days of the date of this order,
Kerner must file either:

10

a.

A motion to stay the § 2254 petition, so that
Kerner may return to the state courts to
exhaust his remedies on each unexhausted
claim in the petition (Claims 1(a)-1(w), 2,
3(a)-3(e), 3(g)-3(h), 4(a)-4(b), and 5, as
numbered above), showing good cause for
Kerner’s prior failure to exhaust state court
remedies as to such claims; or

b.

A motion to amend the § 2254 petition,
seeking to forego every unexhausted claim
(Claims 1(a)-1(w), 2, 3(a)-3(e), 3(g)-3(h),
4(a)-4(b), and 5, above), acknowledging that
in doing so, Kerner would lose the
opportunity to seek federal habeas relief on
any claim in the petition other than Claim
3(f).

2.

Should Kerner fail to amend his petition as
directed, or otherwise fail to comply with
this order, the court may dismiss the
petition without prejudice for failure to
demonstrate exhaustion. See 28 U.S.C.
§ 2254(b).

3.

The motion to stay the statute of limitations
(doc. no. 1) is denied without prejudice to
Kerner refiling a motion seeking to stay the
petition, in accordance with this order.

4.

The motion for assistance of counsel (doc.
no. 5) is denied without prejudice to Kerner
refiling the motion if an evidentiary hearing
is scheduled, or if he otherwise shows that
the interests of justice and/or fundamental
fairness warrant the appointment of counsel.

SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
July 19, 2013
cc:

Mark A. Kerner, pro se

11