McGrath v. Northern NH Correctional Facility, Warden

Filing 49

///ORDER granting 47 Motion for Summary Judgment. Claims 1, 2, 3, 4, 5, and 6.d are dismissed. The claims remaining in support of the § 2254 petition are Claims 6.a-c, 6.e-q, 7, and 8. The Warden shall file a motion for summary judgment on the remaining claims on or before August 19, 2016, or file an amended answer. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Paul J. McGrath
v.

Civil No. 14-cv-353-JD
Opinion No. 2016 DNH 118

Warden, New Hampshire State Prison
O R D E R
Paul J. McGrath, proceeding pro se, seeks a writ of habeas
corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction
in state court on charges of second degree assault and criminal
mischief.

In support, McGrath alleges that he received

ineffective assistance of counsel and that his right to due
process was violated by prosecutorial misconduct and evidentiary
errors.

The Warden moves for summary judgment on some of

McGrath’s claims, and McGrath objects.
Standard of Review
Summary judgment is appropriate when the moving party
“shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”1

A motion for summary judgment under Federal Rule of Civil
Procedure 56 may be considered in a § 2254 proceeding. See
Perri v. Gerry, 2014 WL 2218679, at *1 (D.N.H. May 29, 2014).
In doing so, the court applies the standard under Rule 56 and
the standard under § 2254. Bonney v. Wilson, 817 F.3d 707,
711-12 (10th Cir. 2016).
1

Fed. R. Civ. P. 56(a).

“A genuine dispute is one that a

reasonable fact-finder could resolve in favor of either party
and a material fact is one that could affect the outcome of the
case.”

Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir.

2015).

Reasonable inferences are taken in the light most

favorable to the nonmoving party, but unsupported speculation
and evidence that “is less than significantly probative” are not
sufficient to avoid summary judgment.

Planadeball v. Wyndham

Vacation Resorts, Inc., 793 F.3d 169, 174 (1st Cir. 2015)
(internal quotation marks omitted).
Background
The charges against McGrath arose out of an incident
between Paul McGrath and his former wife, Donna (now Donna
Freeman), on July 19, 2011, at their home in Epsom, New
Hampshire.2

They began arguing earlier in the day about

Freeman’s children from a prior marriage.
That evening, after more verbal exchanges, McGrath
approached Freeman and made a fist.
prevent a punch.

She acted defensively to

McGrath then grabbed Freeman around the throat

Paul and Donna are now divorced, and Donna’s name is now
Donna Freeman. The court will refer to Paul McGrath as
“McGrath” and to Donna Freeman as “Freeman.”
2

2

with both hands and squeezed so hard that Freeman had trouble
breathing.
After Freeman kicked McGrath, he released her.

Freeman

went out to her car, ostensibly to retrieve a house key, and
locked the car doors.

McGrath got their framed wedding

photograph and threw it at the car windshield, which cracked the
windshield.

Freeman started the car and drove to her night

shift job at Cumberland Farms.
Freeman felt safe at work because McGrath would not walk
that far.
police.

When she got to work, Freeman called the Epsom
Officer Ferdinand Cruz responded.

Cruz saw that Freeman had red marks on her neck and was
upset.

Freeman told him what had happened with McGrath.

While

Cruz was talking to Freeman, McGrath called and told her he was
sorry.

He asked if she had called the police and threatened to

damage things in the house.
the police.

Freeman said that she had called

McGrath called back and told her that he was

destroying the house.
Cruz photographed the red marks on Freeman’s neck and her
car’s broken windshield.
found no one there.

He then went to McGrath’s house but

After Cruz left, the police dispatcher

called Cruz to report that a neighbor had called Freeman because
McGrath was breaking furniture and windows at their home.
went back to the house but did not find McGrath.
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Cruz

Cruz asked for

backup, but the two officers who responded also did not find
McGrath.
When Cruz returned to the house at 2:00 a.m., he saw a
light on inside.

McGrath came outside with a drink in his hand,

but did not show obvious signs of intoxication.
McGrath what had happened.

Cruz asked

McGrath answered that he had argued

with Freeman and she grabbed his arm.

McGrath said that he put

his arm around her neck and choked her, and then Freeman kicked
him and walked out of the house.

McGrath presented himself for

arrest with his hands behind his back.

Cruz told him that he

was under arrest and took him to the police station.
Cruz returned to Cumberland Farms to tell Freeman that
McGrath was in jail.

When Freeman got home after work, she

found glass in the front yard.

Inside the house, she found

broken chairs, other damaged furniture, and smashed glasses and
dishes.

Later, Freeman discovered that her son’s mattress had

been stabbed.

Cruz went back to the house to take photographs

of the damage.
Freeman applied for and was granted a restraining order
against McGrath.

McGrath did not contest the grounds for the

restraining order.
McGrath was charged with one count of second degree assault
by strangulation, one count of simple assault, and two counts of
criminal mischief.

He was represented by appointed counsel,
4

John M. Draghi.

The state terminated the simple assault charge

by nolle prosequi.

The case was tried during May of 2012.

McGrath was found guilty on the charges of second degree assault
and criminal mischief.

He was sentenced to three and a half

years to seven years in prison on the assault conviction with
suspended sentences on the criminal mischief convictions.
Draghi moved to withdraw from representing McGrath on
November 1, 2012.

He cited Rule 1.7(a) of the New Hampshire

Rules of Professional Conduct to support the motion.

The court

granted the motion and appointed new counsel to represent
McGrath.
On July 9, 2013, McGrath, while represented by counsel,
filed a motion for a new trial.

He raised claims of ineffective

assistance of counsel because trial counsel did not retain a
medical expert to evaluate Freeman’s injuries shown by red marks
on her neck and failed to impeach Officer Cruz’s testimony about
McGrath’s oral and physical confessions.

He also alleged that

the state failed to provide him with favorable and exculpatory
evidence, specifically, a police report about an incident at
Freeman’s work when an angry customer threw a tick at her that
lodged in her neck.
The state court held a hearing on the motion for a new
trial at which it heard testimony from Draghi, McGrath’s former
counsel, along with other evidence.
5

The court denied the motion

for a new trial and denied the subsequent motion for
reconsideration.

McGrath filed a notice of discretionary

appeal, which the New Hampshire Supreme Court declined to
accept.
McGrath, proceeding pro se, filed a petition for habeas
corpus relief under § 2254 in this court in August of 2014.

On

preliminary review, the magistrate judge identified the
following claims in McGrath’s petition:
1. McGrath’s conviction was obtained in violation of his
Sixth Amendment right to the effective assistance of counsel at
trial, in that his defense counsel, Attorney Draghi:
a. Failed to impeach EPD Officer Cruz regarding the
inconsistencies between his trial testimony and his police
report regarding his arrest of McGrath;
b. Failed to consult with and produce a medical expert at
trial to testify regarding the red marks on Donna McGrath’s
neck;
c. Elected to forego a probable cause hearing, at a time
when McGrath was not prepared to contest the state’s bail
recommendation;
d. Failed to investigate inconsistencies between EPD
Officer Cruz’s police reports relating to McGrath’s arrest;
e. Failed to investigate inconsistencies between EPD
Officer Cruz’s police reports and Donna McGrath’s witness
statement;
f. Failed to interview Donna McGrath’s Cumberland Farms
co-worker, the McGraths’ neighbors, and witnesses who saw Donna
McGrath’s tick bite;
g. Failed to consult with and/or produce a psychiatrist to
provide expert testimony regarding Donna McGrath’s demeanor;
h. Failed to challenge the sufficiency of evidence
regarding the amount of property damage attributable to McGrath;
i. Failed to investigate whether McGrath owned the
property that he was charged with destroying;
j. Failed to explain to McGrath the significance of the
reduction of the criminal mischief charge from a felony to a
misdemeanor;
k. Failed to object to hearsay statements; and
6

l. Failed to pursue the defense approved by McGrath, which
was that McGrath did not do any of the charged acts.
2. McGrath’s conviction was obtained in violation of his
Fourteenth Amendment right to due process, in that the
prosecutor did not produce to McGrath an exculpatory police
report regarding a tick lodged in Donna McGrath’s neck.
3. McGrath’s conviction was obtained in violation of his
Fourteenth Amendment right to due process, in that the
prosecutor (a) knowingly allowed EPD Officer Cruz to testify
falsely at trial regarding the circumstances surrounding his
arrest of McGrath, and (b) knowingly allowed Donna McGrath to
testify falsely regarding McGrath grabbing her arm.
4. McGrath’s conviction was obtained in violation of his
Fourteenth Amendment right to due process, in that the evidence
was insufficient to show that McGrath acted knowingly and
purposefully, to establish guilt beyond a reasonable doubt.
5. McGrath’s conviction was obtained in violation of his
Fourteenth Amendment right to due process, in that the
prosecutor’s opening statement prejudiced the jury by making
McGrath out to be a monster, and included remarks about
McGrath’s conduct that were not supported by the evidence.
The magistrate judge informed McGrath that he had not shown
that all of his claims had been exhausted.

McGrath was given

time either to move to stay the petition while he exhausted all
claims or to move to amend to forego the unexhausted claims.
McGrath moved to stay and then filed a pleading in his state
criminal case to exhaust the claims he raised here.
In its order dated December 23, 2014, the Merrimack County
Superior Court stated that McGrath had “filed a pleading which
appears to be another attempt to raise a claim of ineffective
assistance of counsel.
itself.”

He also seeks to have this Court recuse

The motion was denied.

McGrath filed a motion to
7

amend on January 9, 2015, that does not appear to have been
addressed by the court.3

McGrath also appealed the court’s

December 23, 2014, decision, and the New Hampshire Supreme Court
declined the notice on July 13, 2015.

The stay was lifted on

October 15, 2015.
On October 26, 2015, McGrath filed an addendum to his
petition, and the Warden did not object.

The magistrate judge

identified additional claims to support the petition as follows
(document no. 37):
6. McGrath’s conviction was obtained in violation of his
Sixth Amendment right to the effective assistance of counsel at
trial, in that his defense counsel, Attorney Draghi:
a. Did not conduct any investigation of the charges
against McGrath, and did not hire an investigator;
b. Did not come up with a trial strategy;
c. Failed to interview property managers William and
Maureen Carone regarding Donna’s tick bite;
d. Failed to interview the Elks Club bartender regarding
McGrath’s demeanor, for the purpose of developing evidence that
would demonstrate that McGrath did not act knowingly and
purposefully;
e. Failed to interview Donna’s Cumberland Farms co-workers
regarding Donna’s appearance after the assault, for the purpose
of developing evidence that Donna’s demeanor was not consistent
with having been assaulted;
f. Failed to interview Donna’s next door neighbor Shyla
Valley, regarding whether Valley told Donna that McGrath was
smashing glass in Donna’s house;
g. Failed to interview Donna’s neighbor Dale, regarding
the broken glass on the ground the morning after the incident;
h. Did not obtain the video of the EPD booking area at the
time of McGrath’s booking, which would have been evidence that
McGrath had not acted knowingly and purposefully, as he had been
The Warden mistakenly represents that the state court
addressed the motion to amend in the December 23 decision.
Because the motion to amend was filed on January 9, 2015, it was
not addressed in the court’s prior order.
3

8

drinking, suffered memory loss, and had taken medications for
chronic depression and bi-polar disorder;
i. Did not consult with, or produce at trial, an expert,
who would have testified as to noticeable changes between three
pictures of Donna’s neck, and as to whether there were hand or
finger prints on Donna’s neck in those three photos, taken on
July 19 and July 20, 2011;
j. Did not obtain the police report or medical records
regarding an incident where a Cumberland Farms patron may have
thrown a tick at Donna, which could have been used to show that
marks on Donna’s neck did not result from strangulation;
k. Did not obtain Rent-a-Center records that would have
shown that McGrath and not Donna owned the property he
destroyed;
l. Delivered an opening statement that, on p. 24 of the
trial transcript, manifests his attorney misconduct, lack of
professionalism, and lack of interest in representing McGrath;
m. Did not cross-examine EPD Officer Cruz, or otherwise
offer as evidence the bench warrant, the EPD dispatch report,
and a Pembroke Police Department communication as evidence, to
impeach Cruz’s testimony that his intent, when he approached
McGrath, was merely to talk with him, and not to arrest McGrath;
n. Did not move to suppress or object in court to the
admissibility of the “implied confession” of McGrath, who
surrendered as soon as EPD Officer Cruz approached him, where
there was evidence McGrath had been drinking and was on
medication, and that the “implied confession” was not knowing
and voluntary;
o. Did not object to or cross examine either Donna or EPD
Officer Cruz as to their testimony regarding their familiarity
and relationship with one another, where Attorney Draghi was
aware before trial that Donna had cooperated with the EPD on
other matters;
p. Did not cross examine Donna regarding the
inconsistencies between her testimony and the photos taken by
the state, regarding her broken property; and
q. Did not move to withdraw from representing McGrath
prior to trial, when he had a duty to do so, for violations of
N.H. Rules of Professional Conduct.
7. McGrath’s conviction was obtained in violation of his
Fourteenth Amendment right to due process, in that the
prosecutor knowingly:
a. Allowed EPD Officer Cruz to testify falsely as to his
relationship with Donna by failing to disclose that she had been
a confidential informant for the Epsom Police Department since
2007;
9

b. Allowed Donna to testify falsely as to her relationship
with EPD Officer Cruz by failing to disclose that she had been a
confidential informant for the Epsom Police Department since
2007;
c. Offered tampered photos of Donna’s neck as evidence;
d. Allowed Donna to testify falsely that marks on the back
of Donna’s neck were from McGrath’s fingers; and
e. Allowed Donna to testify falsely that McGrath had
destroyed Donna’s property.
8. McGrath’s conviction was obtained in violation of his
Fourteenth Amendment right to due process, in that the state
destroyed and/or did not turn over, before trial:
a. The booking video that would have showed that McGrath’s
demeanor at the time of his arrest was inconsistent with knowing
and purposeful acts;
b. Photos that do not show hand prints on Donna’s neck;
and
c. The EPD dispatch report that showed that Officer Cruz
was in McGrath’s driveway at the time McGrath was breaking
things in McGrath’s house, which could have been used to impeach
EPD Officer Cruz’s testimony regarding the circumstances of
McGrath’s arrest.
The Warden moved for summary judgment, and McGrath filed an
objection.

The Warden did not reply to the objection.
Discussion

The Warden moves for summary judgment on the grounds that
McGrath’s claims listed by the magistrate judge as Claims 1
through 5 have no merit and Claim 6.d was not exhausted and
lacks merit.4

McGrath objects.

To the extent McGrath raises new

In the motion for summary judgment, the Warden recites only
five of the eight claims that were identified by the magistrate
judge as supporting McGrath’s petition. Nevertheless, without
specifically addressing the claim by number, the Warden also
seeks summary judgment on Claim 6.d.
4

10

claims or issues in his objection, those matters are not
properly part of his § 2254 petition in this case.
A prisoner in custody pursuant to a state court judgment is
not entitled to relief unless the adjudication of the claim
“resulted in a decision that 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).

Factual determinations

by the state court are presumed to be correct, and the
petitioner bears the burden of rebutting that presumption by
clear and convincing evidence.

If the state court did not

adjudicate the claim on the merits, then no deference is due,
and the claim is decided de novo.

Jenkins v. Bergeron, --- F.3d

---, 2016 WL 3031089, at *3 (1st Cir. May 27, 2016).
The state court analyzed and decided the claims raised in
McGrath’s motion for a new trial.

In response to the subsequent

pro se motion filed on December 6, 2014, the state court
summarily denied the motion without any detailed analysis of the
claims.

The state court did not address McGrath’s motion to

amend, filed on January 9, 2015.
The Warden acknowledges that the state court provided no
analysis of many of McGrath’s claims.
11

Nevertheless, the Warden

argues that those claims, except two that the Warden contends
were not exhausted, were adjudicated on the merits and that a
modified deference standard used by the Sixth Circuit should
apply.

See Veasquez v. Jones, 496 F.3d 564, 569-70 (6th Cir.

2007).
The court declines to apply the Sixth Circuit standard,
which does not appear to conform to the First Circuit’s
interpretation of Supreme Court precedent.

See Jenkins v.

Bergeron, --- F.3d ---, 2016 WL 3031089, at *3 (1st Cir. May 27,
2016).

Instead, the court will apply the deferential standard

under § 2254(d) to those claims that the state court analyzed
and the de novo standard to claims the state court did not
expressly address.

See Jaynes v. Mitchell, --- F.3d ---, 2016

WL 3094316, at *5 (1st Cir. June 2, 2016) (de novo standard
appropriate when § 2254 claims would fail even under that
standard); see also § 2254(b)(2) (unexhausted claims may be
denied on the merits).
A.

Due Process Claims5
McGrath contends that his conviction was obtained in

violation of his right to due process because the prosecutor did

Because McGrath’s claims of ineffective assistance of
counsel, Claim 1 with subparts a through l, repeat some of the
issues raised in the due process claims, the due process claims,
Claims 2 through 5, are addressed first.
5

12

not produce to the defense the police report about the tick
incident, (Claim 2), the prosecutor allowed Cruz and Freeman to
testify falsely at trial (Claim 3), the evidence was
insufficient to establish his guilt beyond a reasonable doubt
(Claim 4), and the prosecutor’s opening statement was improper
and prejudicial (Claim 5).

The Warden moves for summary

judgment on the due process claims, Claims 2 through 5.
1.

Tick Incident Police Report

On May 9, 2011, more than two months before McGrath
assaulted Freeman, an incident occurred while Freeman was
working at Cumberland Farms.

According to the police report of

the incident, Freeman stated that an angry customer threw a tick
at her when she refused to allow him into the store, which was
closed, and the tick lodged in the back of her neck.

The

responding police officer found tweezers, and Freeman had
someone else at the store remove the tick.
After his conviction, McGrath asked the Epsom Police
Department for the police report of the tick incident.
report was provided to him.

The

In support of his petition under

§ 2254, McGrath argues that the prosecutor violated McGrath’s
right to due process by failing to provide the police report
before trial.

13

“‘The suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the
evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.”
Wearry v. Cain, 136 S. Ct. 1002, 1006 (2016) (quoting Brady v.
Maryland, 373 U.S. 83, 87 (1963)).

To succeed on a § 2254 claim

under Brady, a petitioner must show that the undisclosed
evidence “is sufficient to undermine confidence in the verdict.”
Wearry, 136 S. Ct. at 1006.
McGrath raised the tick bite report in support of his
motion for a new trial in state court.

The state court found

that the tick bite report was not exculpatory because McGrath
had not provided medical evidence that a tick bite so long
before the assault would have helped his case and because the
bite could not explain the red marks on both sides of Freeman’s
neck.6

In addition, the state court found that the evidence of

To the extent McGrath attempts to argue that Freeman did not
have red marks on both sides of her neck, he has not shown by
clear and convincing evidence that the state court’s factual
finding was incorrect. § 2254(e)(1). McGrath also argues
vaguely and without record support that the photographs showed a
laceration on Freeman’s neck that was self-inflicted. It is
unclear what claim McGrath’s allegation was intended to support,
but in the absence of evidence and a developed argument, it
cannot be considered. Similarly, McGrath’s vague argument that
the photographs of Freeman’s neck, showing the red marks, should
have been suppressed is raised for the first time in his
objection to the motion for summary judgment and cannot be
considered in support of his petition.
6

14

McGrath’s guilt was so overwhelming that the tick bite report
would not have affected the verdict.
McGrath does not argue and has not shown that the state
court’s decision was contrary to or involved an unreasonable
application of Supreme Court precedent.

Therefore, Claim 2

provides no relief under § 2254.
2.

False Testimony

McGrath contends in Claim 3 that the prosecutor knowingly
allowed Cruz and Freeman to testify falsely at trial.
Specifically, McGrath challenges Cruz’s testimony about the
circumstances of the arrest and his testimony about the sequence
of events before he was arrested.

McGrath also suggests that

Cruz had a motive to lie because he had a preexisting
relationship with Freeman.

He challenges Freeman’s testimony

about the details of the assault.
Criminal defendants have the right to a fair trial, and
prosecutorial misconduct by using false testimony violates that
right.

Housen v. Gelb, 744 F.3d 221, 227 (1st Cir. 2014)

(citing Napue v. Illinois, 360 U.S. 264, 272 (1959)).

The

“knowing use of false testimony amounts to a due process
violation and warrants a new trial only where such testimony was
‘material,’ i.e., where ‘there is any reasonable likelihood that
the false testimony could have affected the judgment of the

15

jury.’”

Burgos v. Roden, 2015 WL 7428541, at *6 (D. Mass. Nov.

20, 2015) (quoting Giglio v. United States, 405 U.S. 150, 154
(1972)).
McGrath notes slight differences between Cruz’s testimony
and his police report of the arrest.

He argues that he did not

provide a “physical confession” by offering himself for arrest.
The matters McGrath raises do not show that Cruz’s testimony was
false and, therefore, do not show that the prosecutor used false
testimony.
Similarly, McGrath focuses on minor differences in
Freeman’s statements about details of the assault and whether
she grabbed McGrath’s arms or wrists, or slapped them away.

The

differences McGrath seizes upon are too inconsequential to show
that the prosecutor used false testimony.

There is no

likelihood that the differences in Freeman’s statements or in
Cruz’s testimony could have affected the judgment.
3.

Sufficiency of the Evidence

McGrath argues that the evidence was insufficient that he
acted knowingly and purposefully on the night of the assault.
He claims, apparently, that because he had been drinking and had
taken medication he was in a black out condition and does not
remember anything about the events that night.

16

The Warden

contends that the claim is waived and that the evidence of his
mental state was overwhelming.
The Warden’s waiver argument is not well supported.
Therefore, the court considers the sufficiency of the evidence
of McGrath’s mental state.
When a petitioner challenges the sufficiency of the
evidence to support his conviction, “the relevant question is
whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979).

The state court

held generally, in the order denying McGrath’s motion for a new
trial, that the evidence was more than sufficient to support the
guilty verdict but did not specifically address the elements of
knowingly and purposely.
McGrath was convicted of second degree assault, in
violation of RSA 631:2, I(f), for knowingly strangling Freeman,
and convicted of misdemeanor criminal mischief for purposely
damaging household goods and throwing a framed picture at
Freeman’s car.

Under New Hampshire law, “[a] person acts

purposely with respect to a material element of an offense when
his conscious object is to cause the result or engage in the
conduct that comprises the element.”

RSA § 626:2, II(a).

person acts knowingly with respect to conduct or to a
17

“[A]

circumstance that is a material element of an offense when he is
aware that his conduct is of such nature or that such
circumstances exist.”

RSA § 626:2, II(b).

The only evidence of McGrath drinking before the assault is
that he asked Freeman to get him beer.7

During the assault, he

was able to walk, talk, and respond to Freeman.

After the

assault, McGrath called Freeman at work and apologized for his
actions but threatened her that if she called the police he
would break everything in the house and then turn himself in to
the police.

When Cruz confronted McGrath at his home, McGrath

did not appear to be intoxicated or otherwise impaired, and
McGrath confessed to the assault.
Therefore, the evidence was sufficient to support the
verdict.
4.

Prosecutor’s Opening Statement

McGrath contends that the prosecutor’s opening statement
violated his right to due process because the prosecutor
described McGrath as a monster and the remarks were not
supported by evidence at trial.

To succeed on a claim

challenging a prosecutor’s opening statement, the petitioner
must show that “the prosecutor’s comments so infected the trial

McGrath’s new theory that he walked to the Elks Club, after
taking medication, and drank there was not before the jury.
7

18

with unfairness as to make the resulting conviction a denial of
due process.”

Darden v. Wainwright, 477 U.S. 168, 181 (1986)

(internal quotation marks omitted).

The state court did not

address the issue of the prosecutor’s opening statement.
In this case, the prosecutor likened McGrath’s assault on
Freeman to a nightmare.

While those remarks may have strayed

beyond the usual purpose of an opening statement, the underlying
facts about the ordeal were introduced into evidence.

In

addition, the state court judge instructed the jury that the
lawyers’ statements were not evidence and that they should
follow their own memory of the evidence.

Therefore, the

prosecutor’s opening statement did not violate McGrath’s right
to due process.
B.

Ineffective Assistance of Counsel
McGrath alleges a long list of claims that Draghi provided

ineffective assistance of counsel.

Those claims are presented

in Claim 1, subparts a-l, and Claim 6, subparts a-q.

The

current motion for summary judgment challenges the ineffective
assistance of counsel claims alleged in Claim 1, with its
subparts, and Claim 6.d.
To show that counsel’s representation was constitutionally
ineffective, a petitioner must prove that counsel’s performance
was deficient and that the deficient performance prejudiced his

19

defense.

United States v. Dunfee, --- F.3d ---, 2016 WL

1732706, at *5 (1st Cir. May 2, 2016) (citing Strickland v.
Washington, 466 U.S. 668 (1984)).

To be deficient, for purposes

of an ineffective assistance claim, counsel’s performance must
have been substandard and denied the petitioner effective
representation.

Jaynes, 2016 WL 3094316, at *6.

Prejudice

requires a showing that “but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Id. (internal quotation marks omitted).
“When a federal court reviews an ineffective assistance of
counsel claim under § 2254, it must use a doubly deferential
standard of review that gives both the state court and the
defense attorney the benefit of the doubt.”

Id.

Under

deferential review, the federal court must determine whether the
state court unreasonably applied the standard, not whether
counsel’s performance fell below the standard.
1.

Id.

Elks Bartender

In Claim 6.d, McGrath charges that Draghi should have
interviewed the bartender at the Elks Club where McGrath says he
was drinking before he assaulted Freeman.

He contends that

because he took medication and was drinking he remembers nothing
about the evening.

He argues that the interview would have

20

produced evidence that that he did not act knowingly or
purposely when he strangled Freeman.
The Warden challenges Claim 6.d as being unexhausted.

A

claim cannot be raised in support of a petition under § 2254
unless it was exhausted in state court.

§ 2254(b)(1)(A).

Exhaustion requires the petitioner to present “‘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.’”

Jaynes, 2016 WL 3094316, at *2 (quoting Sanchez v.

Roden, 753 F.3d 279, 294 (1st Cir. 2014).

“[T]he legal theory

articulated in the state and federal courts must be the same.”
Sanchez, 753 F.3d at 294 (internal quotation marks omitted).
In his motion filed in state court on December 6, 2014,
McGrath claimed that the conviction was obtained in violation of
his due process rights because “the evidence was insufficient to
show that McGrath acted knowingly purposefully [sic], to
establish guilt beyond a reasonable doubt.”

McGrath did not

raise a question about interviewing the Elks bartender or argue
that Draghi provided ineffective assistance because of a lack of
evidence that he acted knowingly or purposely.
The ineffective assistance of counsel claim raised here,
pertaining to interviewing the Elks bartender, does not appear
to have been raised in state court.

Therefore, the claim was

not exhausted and cannot be the basis for habeas relief.
21

In addition, the claim fails on the merits for the reasons
provided in the Warden’s memorandum in support of summary
judgment.
2.

§ 2254(b)(2).

Officer Cruz’s Reports

McGrath alleges that Draghi provided ineffective assistance
by failing to impeach Cruz with inconsistencies between his
reports and his trial testimony about McGrath’s arrest (Claim
1.a) and by failing to show inconsistencies in Cruz’s reports
about McGrath’s arrest (Claim 1.d).8

Prior to McGrath’s arrest,

he confessed to the assault on Freeman.

Draghi testified that

he did not cross examine Cruz about McGrath’s confession to
avoid emphasizing it and because Cruz had credibly explained
other inconsistencies in his report and his testimony.
The state court found that Draghi’s tactical decision not
to inquire about McGrath’s confession appropriately reduced its
significance.

The court also found that because the evidence of

McGrath’s guilt was overwhelming, any error did not prejudice
the defense.

McGrath has not shown that the state court’s

decision was contrary to or an unreasonable application of the
Strickland standard.

McGrath’s arguments about Miranda rights and accusations
that Cruz’s testimony was perjury are meritless for the reasons
provided in the Warden’s memorandum.
8

22

3.

Medical Expert on Red Marks

McGrath contends that Draghi provided ineffective
assistance by failing to retain a medical expert to testify
about the red marks on Freeman’s neck shown in photographs taken
by Cruz (Claim 1.b).

The state court found, based on Draghi’s

testimony, that Draghi’s strategic decision not to contest the
red marks on Freeman’s neck with expert opinion testimony was an
appropriate tactical decision because such evidence would not
have undermined the state’s case and could have harmed the
credibility of the defense.

As such, the state court concluded

that Draghi’s decision not to challenge the cause of the red
marks was not deficient representation and that the lack of
expert opinion testimony did not prejudice the defense.
The state court properly applied Strickland standard for
assessing constitutionally effective representation.

Therefore,

McGrath has not made the required showing under § 2254(d) to
support relief.
4.

Probable Cause Hearing

McGrath contends that Draghi provided ineffective
assistance by waiving a probable cause hearing when McGrath was
not then in a position to contest the state’s bail

23

recommendation (Claim 1.c).9

If the claim were raised in state

court, which does not appear to be the case, the state court did
not expressly address it.
McGrath claims that Draghi advised him that the state had
ample evidence of probable cause so that he should waive a
probable cause hearing, which he did.

As a result, McGrath

reasons, he proceeded into the bail hearing when he did not have
his living arrangements planned.

He blames the amount of bail

set by the court on his inability to present solid living
arrangements.
McGrath does not explain how Draghi’s advice could have
affected the outcome of the criminal conviction.

See Condon v.

Carlin, 2016 WL 2977243, at *3 (D. Idaho May 20, 2016) (“After
conviction, a claim for past unlawful imprisonment or excessive
bail is a civil rights claim . . ., not a habeas corpus claim
that affects the fact or duration of Petitioner’s present
confinement.”).

Therefore, even if Draghi’s advice had been

wrong, which is not apparent, McGrath has shown no prejudice.

In his response to the Warden’s motion for summary judgment,
McGrath adds a theory that by not having a probable cause
hearing the state and Freeman were allowed to change the story
of what happened several times. He also objects to Freeman’s
testimony at the bail hearing. These issues were not approved
by the magistrate judge and do not raise claims that can support
the petition under § 2254.
9

24

See Olea v. Warden, 2015 WL 902841, at *4 (N.D. Cal. Mar. 2,
2015).
5.

Police Reports and Freeman’s Statement

McGrath contends that Draghi’s representation was deficient
because he did not investigate the differences between Cruz’s
reports and Freeman’s witness statement (Claim 1.e).

McGrath’s

claim focuses on Freeman’s description of the strangulation
incident, the timing of subsequent events, and who called the
police.

The state court did not expressly address this claim.

As detailed in the Warden’s memorandum, the differences
between Freeman's statement, her testimony, and the police
reports are minor.

Under the circumstances, Draghi’s failure to

investigate the differences or pursue them further at trial is
not deficient representation.

Importantly, additional focus on

Freeman’s statements would have underscored the evidence against
McGrath.

Further, McGrath has not and cannot show that any

additional focus on the differences would have resulted in a
favorable outcome.
In his objection to the motion for summary judgment,
McGrath also argues that Draghi should have objected to the
prosecutor’s leading questions to Freeman during her trial
testimony.

He acknowledges, however, that when Draghi did

object to a leading question, the court overruled the objection

25

in the interest of saving time.10

Therefore, McGrath has not

shown that more objections to leading questions would have
changed the outcome of the case.
6.

Interviewing Witnesses

In his response to the Warden’s motion, McGrath contends
that Draghi should have interviewed Freeman’s co-workers at
Cumberland Farms, the McGraths’ neighbors, and other witnesses
in order to discover evidence about the tick bite on Freeman’s
neck (Claim 1.f).

He also argues that if Draghi had interviewed

a neighbor, Shyla Valley, he could have challenged Freeman’s
testimony about who smashed furniture and other belongings
inside the house on the night of the assault.

The state court

did not expressly address this claim.
In the context of the due process claim, the state court
found that McGrath knew about the tick bite and knew the police
were involved in the incident.

The court further found that

McGrath charges that the judge improperly cared more about
his time spent in trial than McGrath’s freedom. In response to
McGrath’s second state court filing, asserting ineffective
assistance of counsel, the judge found that to the extent that
filing was intended to be a motion for his recusal, the motion
“asserts nothing more than the Defendant’s disagreement with
this Court’s decisions in his case.” State v. McGrath, 2011-CR523, Dec. 23, 2014 (doc. no. 16). McGrath has not shown the
state court misapplied the governing law pertaining to bias and
recusal. See, e.g., Moussa v. Warden, 2015 WL 1457541, at *12
(D.N.H. Mar. 30,2015); Plummer v. Cunningham, 2000 WL 33667090,
at *3 (D.N.H. Mar. 21, 2000).
10

26

Draghi credibly stated that McGrath never told him about the
tick bite incident.

Without that information, it is not

apparent that Draghi would have learned about the tick bite by
interviewing the suggested witnesses.

In addition, as the state

court found, evidence of the tick bite, which occurred more than
two months before the strangulation incident, would not have
helped the defense to counter the photographs that showed red
marks on both sides of Freeman’s throat.
McGrath argues that Freeman falsely testified that she did
not know the neighbor, Shyla Valley.

He contends that Draghi

could have learned more about the details of the night of the
incident, including when things were smashed in the house, by
interviewing co-workers and neighbors.

McGrath raises no

material issues that Draghi could or should have explored with
witnesses.

His after-the-fact theories and quibbling with trial

testimony do not raise any matter that might have affected the
outcome of the criminal case.
Therefore, McGrath has not and cannot show that Draghi
provided deficient representation or that he suffered prejudice
for lack of additional witnesses.
7.

Expert Testimony About Freeman’s Demeanor

McGrath contends that Draghi should have retained an expert
to provide testimony about Freeman’s demeanor on the evening of

27

the incident (Claim 1.g).

He argues that Freeman’s demeanor did

not show that she was upset by the incident because she smiled
when she was photographed by the police.

Although far from

clear, McGrath apparently believes that Freeman’s demeanor was
inconsistent with someone who had just gone through the assault
that she described.
The state court did not expressly address the claim McGrath
raises.

Demeanor evidence may be admissible to address an issue

of fabrication.

State v. Sulloway, 166 N.H. 155, 162 (2014).

On the other hand, as the Warden points out, the court would not
likely have ordered a psychiatric evaluation of Freeman’s
demeanor based on a smile in a photograph.
The defense had the photographs that McGrath says showed
Freeman smiling.
available.

Therefore, evidence of her demeanor was

McGrath makes no plausible argument that an expert,

such as a psychiatrist, would have testified that Freeman’s
demeanor shown in the photographs undermined the credibility of
her report of the assault.

Further, in light of all of the

evidence, such expert testimony could not have changed the
outcome of the case.
8.

Property Damage

McGrath contends that Draghi provided ineffective
assistance because he did not challenge the sufficiency of the

28

evidence of the value of the destroyed property and did not
investigate whether McGrath, rather than Freeman, owned the
property that was destroyed (Claims 1.h and 1.i).

The claims

aim at his conviction on the misdemeanor criminal mischief
charges of damaging household items and breaking Freeman’s car
windshield and the restitution he was ordered to pay to Freeman.
For purposes of his conviction on the misdemeanor charges
under RSA 634:2, II-a, the state had to prove that McGrath,
without the right to do so, purposely or recklessly damaged the
property of another and caused or attempted to cause loss in
excess of $100.

Freeman provided a list of damaged property and

testified about the damage and the values. In his objection to
summary judgment, McGrath lists certain values for damaged
property and appears to argue that the values Freeman claimed
are incorrect.

He contends that Freeman changed some of the

items on the sheet and seems to suggest that Freeman falsified
the evidence.
McGrath provides no evidence to support his accusations.
The Warden explains in support of summary judgment that even
with discounted amounts the value of the damaged property was
more than $100.

The Warden also points out that the defense

McGrath chose to pursue was that he had not damaged the
property, not that the damaged property was worth less than was
claimed.
29

To the extent McGrath is arguing that Draghi should have
challenged the values of the damaged property for purposes of
the restitution amount, he does not state a cognizable claim
under § 2254.

Washington v. Smith, 564 F.3d 1350, 1351 (7th

Cir. 2009); Clastul Feliz v. Tritt, 2016 WL 3538616, at *1, n.1
(E.D. Pa. June 29, 2016); Mercier v. Joyce, 2015 WL 733211, at
*1, n.1 (D. Me. Feb. 20, 2015); United States v. Robertson, 2016
WL 193389, at *4 (N.D. Ill. Jan. 15, 2016).
Therefore, McGrath has not shown that Draghi provided
ineffective assistance by failing to challenge the amounts
claimed for damaged property.

In addition, even if challenged,

McGrath has not shown that the value would be less than $100.
McGrath asserts that Draghi was ineffective for failing to
show that Freeman did not own the damaged property (Claim 1.i).
In support of summary judgment, the Warden contends that
McGrath’s defense, as he requested it to be, was that he did not
damage the property, not that Freeman did not own the property.
For that reason, McGrath’s new argument that he destroyed his
own property would not have contradicted his chosen defense.
McGrath does not appear to pursue this claim in opposition to
summary judgment.

Therefore, McGrath has not shown ineffective

assistance of counsel in Claim 1.i.

30

9.

Criminal Mischief Charge

McGrath claims that Draghi was ineffective in explaining to
him the significance of changing the felony criminal mischief
charge to a misdemeanor (Claim 1.j).

The claim was unclear when

presented to the state court, and the state court did not
address it.
In his objection to summary judgment, McGrath seems to
confuse the claim with his challenge to the value of the
property damaged.

He states that he “was aware of why the

Felony was dropped to a misdemeanor because it was [McGrath] who
told Counsel that he was being charged twice for a windshield
but [McGrath] also pointed to cousel [sic] that other things on
victims [sic] inventory sheet were in pictures unbroken and he
never brought it to anyones [sic] attention other than [the
prosecutor.”

He characterizes the issue as “theft by

deception.”
McGrath raises no cognizable claim based on the reduction
in the criminal mischief charge.
10.

Hearsay

The Warden objects to Claim 1.k on the ground that it was
not exhausted.

In response, McGrath says that the state court

“judge denied everything that came across his bench in regards
to State v. McGrath” but does not show that the claim was raised

31

in state court.

Therefore, McGrath has not shown that the claim

was exhausted.
Further, if the claim were considered on the merits,
hearsay is a constitutional issue only when the challenged
testimony violates the Confrontation Clause of the Sixth
Amendment.
2016).

See Linton v. Saba, 812 F.3d 112, 125 (1st Cir.

Because McGrath fails to identify any testimonial

statements that violated the Confrontation Clause, he has not
provided a basis for evaluating ineffective assistance based on
Draghi’s alleged failure to object.

In addition, he has not

shown the necessary prejudice even if such omissions occurred.
11.

Defense

The claim allowed on preliminary review is that Draghi
failed to pursue the defense chosen by McGrath, which was that
he did not assault Freeman or cause the damage to the household
furnishings and Freeman’s car (Claim 1.l).

This claim was not

addressed by the state court.
In his objection to summary judgment, McGrath acknowledges
that the defense he wanted to use was that he did not commit the
offenses charged.

He does not argue that Draghi pursued a

different theory that was contrary to his requested defense.
Instead, McGrath presents the claim as a compilation of his
other complaints about Draghi’s representation.

32

As such, this

is not a separate claim in support of the § 2254 petition and
provides no independent basis for relief.
None of the claims presented in Claim 1 provide a viable
basis for relief under § 2254.
Conclusion
For the foregoing reasons, the Warden’s motion for summary
judgment (document no. 47) is granted.
and 6.d are dismissed.

Claims 1, 2, 3, 4, 5,

The claims remaining in support of the

§ 2254 petition are Claims 6.a-c, 6.e-q, 7, and 8.
The Warden shall file a motion for summary judgment on the
remaining claims on or before August 19, 2016, or file an
amended answer that responds to the remaining claims and a
notice that a hearing will be required on the remaining claims.
SO ORDERED.

__________________________
Joseph DiClerico, Jr.
United States District Judge
July 19, 2016
cc:

Paul J. McGrath, pro se
Elizabeth C. Woodcock, Esq.

33