Dilboy v. NH State Prison, Warden

Filing 33

///ORDER granting 26 Motion for Summary Judgment. Clerk shall enter judgment and close the case. So Ordered by Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Anthony Dilboy
v.

Civil No. 13-cv-465-LM
Opinion No. 2016 DNH 015

Warden, New Hampshire
State Prison
O R D E R
Anthony Dilboy is serving one of the two consecutive
sentences he received from the New Hampshire Superior Court
after being convicted of two counts of manslaughter.

The

charges against him arose out of a collision in which he killed
two people by driving a pick-up truck at a high rate of speed
through a red light and striking another vehicle that had the
right of way.

Dilboy now petitions for a writ of habeas corpus.

See 28 U.S.C. § 2254.

Before the court is respondent’s motion

for summary judgment.

The court heard oral argument in this

matter on January 11, 2016.

For the reasons that follow,

Dilboy’s petition is dismissed.
I. Discussion
“[A] district 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.”

28 U.S.C. § 2254(a).

Dilboy claims that

he is in custody in violation of his Sixth Amendment right to
confront the witnesses against him.

His claim arises from the

trial court’s admission of testimony from Dr. Michael Wagner,
who reported the results of blood tests that he did not conduct
or observe.

In Dilboy’s view, the admission of those test

results ran afoul of the United States Supreme Court’s decision
in Bullcoming v. New Mexico, which stands for the proposition
that
the [Sixth Amendment’s] Confrontation Clause [does
not] permit[] the prosecution to introduce a forensic
laboratory report containing a testimonial
certification – made for the purpose of proving a
particular fact – through the in-court testimony of a
scientist who did not sign the certification or
perform or observe the test reported in the
certification.
131 S. Ct. 2705, 2710 (2011).

The problem with Dilboy’s claim

is that even if the trial court’s admission of Dr. Wagner’s
testimony did violate the rule announced in Bullcoming, that
violation did not result in the conviction for which he is in
custody.
Dilboy was convicted of, and is currently serving a
sentence for, manslaughter.

Under New Hampshire law:

A person is guilty of manslaughter when he causes
the death of another:

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(a) Under the influence of extreme mental or
emotional disturbance caused by extreme
provocation but which would otherwise constitute
murder; or
(b) Recklessly.
N.H. Rev. Stat. Ann. (“RSA”) § 630:2, I.
with the reckless variant of manslaughter.

Dilboy was charged
See Trial Tr. Vol.

1, 3:9, 22.
At the end of Dilboy’s trial, Judge Fauver instructed the
jury on manslaughter.

The New Hampshire Supreme Court, when

ruling on Dilboy’s direct appeal, described Judge Fauver’s jury
instructions this way:
The court then stated that manslaughter has “two
parts or elements” that the State must prove beyond a
reasonable doubt; first, that the defendant “caused
the death of another person”; and, second, that he
“acted recklessly.” The court defined recklessly, and
then discussed the factual allegations in the
indictments:
Although you do not need to find all of the
factual allegations occurred, you must reach a
unanimous decision as to the acts that amount to
recklessness. The factual allegations that you
can consider in determining recklessness are:
The defendant drove a vehicle at an excessive
rate of speed;
Collided with a vehicle that had a right of way;
Drove through a red light;
And at the time was under the influence of one or
more controlled drugs and/or suffering the
effects of heroin withdrawal.

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The trial court instructed the jurors that they could
“find that one, some, all or none of the factual
allegations occurred,” but that any such finding must
be unanimous.
State v. Dilboy, 160 N.H. 135, 155 (2010).

After giving his

instructions, Judge Fauver gave the jury a form that asked it to
record its findings on each of the four factual predicates that
could support a determination that Dilboy had acted recklessly.
See id. at 156-57.

That form listed the four factual predicates

and provided, for each of them, a space where the jury could
place a check mark in front of the word “YES.”

Id. at 156.1

The jury found that Dilboy had been driving at an excessive
rate of speed, collided with a vehicle that had the right of
way, and ran a red light.

See Dilboy, 160 N.H. at 157.

Any one

of those three findings would have been sufficient to support a
determination of recklessness and a conviction for manslaughter.
With regard to the fourth possible factual predicate, i.e.,
being “under the influence of one or more controlled drugs
and/or suffering the effects of heroin withdrawal,” the jury
“appeared to have checked ‘yes’ for question 4, but then crossed

In addition to asking whether the jury unanimously found
beyond a reasonable doubt that Dilboy performed any of the four
acts that could support a determination of recklessness, the
form asked an additional question: “If you have unanimously
agreed on one or more of the acts above, do you also find that
act(s) sufficient to prove the defendant acted recklessly as
defined in my instructions and that the reckless act caused the
death of another?” Dilboy, 160 N.H. at 156-57.
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it out and wrote ‘Ignore’ with an arrow pointing towards the
crossed-out check.”

Id. at 156, 157.

Thus, in the context of

convicting Dilboy of manslaughter, the crime for which he is now
in custody, it does not appear that the jury found that Dilboy
“was under the influence of one or more controlled drugs and/or
suffering the effects of heroin withdrawal.”

Id. at 157.

But,

even if the jury had made such a finding, that finding would
have been necessary to support its verdict only if it had not
found that the State had proven any of the other three acts the
form asked about.

Finally, while being under the influence of a

controlled drug is an element of negligent homicide, see RSA
630:3, II, and Dilboy was convicted of that crime, he was never
sentenced for his two negligent homicide convictions.

See

Sentencing Tr., 70:15-17, 72:8-10.
In his amended petition, Dilboy framed the central issue
this way:
After trial, the jury convicted Dilboy of two counts
of manslaughter, and two counts of negligent homicide.
. . . By convicting him of manslaughter, the jury
necessarily found that the State had proven the
element of impairment beyond a reasonable doubt.
Am. Pet. (doc. no. 21) ¶ 21 (citation omitted).

If impairment

was an element of manslaughter then, perhaps, Dilboy’s claim
might have some merit.

But, as Dilboy now concedes, his

conviction for manslaughter did not require the jury to find

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that the State had proven that he was impaired at the time of
the collision.

Still, he argues that the trial court’s

admission of Dr. Wagner’s testimony had a substantial injurious
effect on the jury’s verdict because that testimony allowed the
jury to find that he drove too fast, struck a vehicle with the
right of way, and/or ran a red light because he was impaired at
the time of the collision.

The court is not persuaded by

Dilboy’s argument.
In his briefing and at oral argument, Dilboy explained that
he construed the court’s order of December 31, 2015, as invoking
the principle of harmless error.

The court’s actual concern was

with an antecedent issue raised by the manner in which Dilboy
framed the claim he asserts in his amended petition.

That issue

is whether Dilboy’s incarceration resulted from a determination
by the jury that he was impaired by drugs at the time of the
collision, a determination that could have been influenced by
the testimony from Dr. Wagner that he now challenges.

If

analyzed along the lines suggested by Dilboy’s petition, his
claim fails.
Dilboy is in custody as a result of his convictions for
manslaughter.

Impairment, or being under the influence of a

controlled substance, is not an element of manslaughter.
Recklessness, which is an element of manslaughter, may be proven

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by at least three other factual predicates that were proven in
this case.

Specifically, the State proved that Dilboy was

driving too fast, struck a vehicle with the right of way, and
ran a red light.

However, in order to secure a conviction for

manslaughter, the State was not required to prove that
impairment or any other condition or circumstance was the reason
why Dilboy did those things.

Thus, even if the trial court

admitted Dr. Wagner’s testimony about Dilboy’s blood test
results in violation of the Sixth Amendment, Dilboy is not in
custody as a result of any such error.

Stated another way,

Dilboy is not in custody due to a finding by the jury that he
was impaired, because the conviction that resulted in his
incarceration did not require the State to prove impairment.

In

short, Dilboy is not entitled to the relief he seeks because he
is not in custody as a result of any finding by the jury that
required Dr. Wagner’s testimony.
The result is the same even if the court assumes that Dr.
Wagner’s testimony was impermissible under Bullcoming and
accepts Dilboy’s invitation to view this case through the lens
of harmless error.

Where, as here, the state appellate court

did not conduct a harmless-error analysis pursuant to Chapman v.
California, 386 U.S. 18 (1967), this court must apply the
standard announced in Brecht v. Abrahamson, 507 U.S. 619 (1993),

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to determine whether the trial court’s constitutional error was
harmless.
2014).

See Connolly v. Roden, 752 F.3d 505, 510 (1st Cir.

Under Brecht, “a habeas petitioner . . . must show that

the error ‘had a substantial and injurious effect or influence
in determining the jury’s verdict.’”

Connolly, 752 F.3d at 509

(quoting Brecht, 507 U.S. at 637; citing Kotteakos v. United
States, 328 U.S. 750, 776 (1946)).
In Connolly, the trial court admitted “a certificate from
[a] drug analysis laboratory explaining that [a certain piece of
evidence] was cocaine and weighed 124.31 grams, without calling
the analyst as a witness and so not making the analyst available
for confrontation.”

752 F.3d at 507-08.

The composition and

weight of the piece of evidence in Connolly were both material
facts:
For all counts, the prosecution had to prove that the
substance in question was cocaine. The distribution
counts, however, did not require any evidence of
quantity; that evidence was relevant only to the
trafficking count, for which the prosecution had to
prove a quantity of between 100 and 200 grams. See
Mass. Gen. Laws ch. 94C, §§ 32A(c), 32E(b)(3).
Id. at 507 n.3.

The trial court’s admission of the certificate

in Connolly violated the defendant’s Sixth Amendment right to
confrontation under the rule announced in Melendez-Diaz v.
Massachusetts, 557 U.S. 305 (2009).
506.

See Connolly, 752 F.3d at

The Massachusetts Supreme Judicial Court held that the

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trial court’s Melendez-Diaz error was harmless.

See id.

“On

federal habeas review, the district court denied the petition,
reasoning that the state courts had already found that the error
was harmless and that the petitioner could not show sufficient
injury under the highly deferential standards announced by the
Supreme Court in Brecht . . . and Fry v. Pliler, 551 U.S. 112,
119-20 (2007).”

Id. (parallel citations omitted).

The court of appeals affirmed, and explained that because
the petitioner had “not challenged the accuracy of the lab
certificates,” he could not “show substantial and injurious
effects on the jury’s verdict.”

Connolly, 752 F.3d at 514

(citing Dominguez v. Duval, 527 F. App’x 38, 41 (1st Cir.
2013)).

The court elaborated:

Connolly does not claim that, had he been able to
cross-examine the lab technician, the jury would have
been more likely to conclude that the ball of cocaine
weighed under 100 grams. Without any such claim, he
cannot show on habeas review that the admission of the
drug certificates had a “substantial and injurious”
effect on the jury’s decision. And even if he made
that claim, he has not put forward any evidence
indicating what would have been revealed on crossexamination, leaving the support for his claim a
matter of “pure speculation.” That is insufficient to
show a “substantial and injurious” effect on the
verdict.
Id. at 515 (footnote and citation omitted).
Here, Dilboy does not claim that had he been able to crossexamine the lab technician who tested his blood, the jury would

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have been more likely to conclude that he was not driving at an
excessive rate of speed, that he did not collide with a vehicle
that had the right of way, or that he did not run a red light.2
Without any such claim, he cannot show that the admission of Dr.
Wagner’s testimony had a substantial and injurious effect on the
jury’s verdict.

If it was harmless error, under the Brecht

standard, for the trial court in Connolly to admit testimony
that violated the Confrontation Clause on matters that the State
was obligated to prove, there can be no doubt that it was
harmless error in this case for the trial court to admit Dr.
Wagner’s testimony, which was relevant only to impairment, a
matter that the State was not obligated to prove to secure a
conviction for manslaughter.
II. Conclusion
For the reasons described above, Dilboy has failed to state
a claim for habeas relief.

Accordingly, respondent’s motion for

summary judgment, document no. 26, is granted.

The clerk of the

If Dilboy could show that cross-examination of the lab
technician would have made the jury more likely to conclude that
he was not impaired at the time of the collision, that might
call into question the validity of his conviction for negligent
homicide. But he is not serving time for that conviction.
Thus, the invalidity of that conviction could not provide the
basis for habeas relief.
2

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court shall enter judgment in accordance with this order and
close the case.
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge

January 19, 2016
cc:

Theodore M. Lothstein, Esq.
Elizabeth C. Woodcock, Esq.

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