McGrath v. Northern NH Correctional Facility, Warden

Filing 58

///ORDER granting 52 Motion for Summary Judgment. Because McGrath has not made a substantial showing of the denial of a constitutional right, the court does not issue a certificate of appealability. 28 U.S.C. § 2253(c)(2). Clerk shall enter judgment and close the case. 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 208

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.

The court previously granted summary judgment in

favor of the Warden on the claims raised in McGrath’s original
petition.

The Warden then moved for summary judgment on the

claims that McGrath raised in an addendum to the petition.
McGrath filed an objection to the motion but also requested
and was granted an extension of time to allow him to file an
“expert medical summary on pictures of original pictures and
photo tech summary.”

McGrath has now filed the additional

exhibits, and the Warden has responded.

McGrath was allowed

time to file a surreply but did not do so.
Standard of Review
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 with
the restrictions imposed under § 2254.

Bonney v. Wilson, 817

F.3d 711-12 (10th Cir. 2016).
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.”
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).
Under the habeas corpus standard, 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
2

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, 824 F.3d 148, 152 (1st Cir. 2016).
Background1
The charges of second degree assault and criminal
mischief against McGrath that resulted in his conviction and
sentence arose from an incident between 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

with both hands and squeezed so hard that Freeman had trouble
breathing.

The background facts are taken from the court’s prior order
that granted summary judgment in favor of the Warden on the
claims in McGrath’s original habeas petition.
1

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

3

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.

Cruz

Cruz asked for

backup, but the two officers who responded also did not find
McGrath.
4

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.
John M. Draghi.

He was represented by appointed counsel,

The state terminated the simple assault charge

by nolle prosequi.

The case was tried during May of 2012.
5

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.

The court denied the motion

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

In denying the motion for a new trial, the
6

court found that “[t]he evidence against [McGrath] was
overwhelming.”

Order on Motion for a New Trial, doc. no. 8-8

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.
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;
7

On

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
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.
8

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

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

On January 18, 2015, McGrath appealed

the court’s December 23, 2014, decision, and the New Hampshire
Supreme Court declined the appeal on July 13, 2015.

The stay

was lifted on October 15, 2015.
The magistrate judge identified additional claims to
support the petition as follows (document no. 37):4
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
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

To the extent the Warden disagrees with the wording of the
claims, that issue could have been raised in response to the
order (document no. 37) and the report and recommendation
(document no. 38) but was not. The report and recommendation
was approved on February 26, 2016, (document no. 39).
4

9

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 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
10

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;
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
11

could have been used to impeach EPD Officer Cruz’s
testimony regarding the circumstances of McGrath’s
arrest.
The court previously granted the Warden’s motion for
summary judgment on Claims 1 through 5 and 6(d).
Discussion
The Warden now moves for summary judgment on the remaining
claims that were presented in the addendum to the petition,
Claims 6 through 8.

Claim 6 alleges that McGrath’s counsel,

John Draghi, provided ineffective assistance and lists seventeen
grounds to support the claim.5

Claim 7 alleges that the

prosecutor violated McGrath’s Fourteenth Amendment due process
rights by allowing false testimony and tampered evidence to be
presented at trial.

Claim 8 alleges that the state violated his

Fourteenth Amendment due process rights by destroying or failing
to turn over evidence.
The court will first address the issue of the new evidence
that McGrath submitted in support of his habeas petition.

His

due process claims will be considered before the ineffective
assistance of counsel claims because of the duplication of
issues and to avoid unnecessarily repetitive analysis.

As noted above, Claim 6(d) has been decided in favor of the
Warden.
5

12

A.

New Evidence
McGrath has submitted new evidence about the photographs of

injuries to Freeman’s neck.

The new evidence consists of a

letter from Thomas A Andrew, M.D., the Chief Medical Examiner
for the State of New Hampshire, about two photographs, showing
marks on a woman’s neck and McGrath’s comments about the
photographs.

Dr. Thomas states that the two photographs are

different in size and exposure but show the same injuries.

He

also states: “While their location on the body is consistent
with pressure applied to the neck, I would not be able to
testify that they represent hand marks to the exclusion of any
other explanation.”
The Warden objects to the new evidence because it was not
presented to the state court.

The Warden also contends that the

new evidence does not support McGrath’s claims but instead
confirms trial counsel’s evaluation of the evidence and his
trial strategy.
McGrath claimed in his original petition that Draghi was
ineffective because he failed to consult with and produce a
medical expert for trial to testify regarding the red marks on
Freeman’s neck.

As is explained in the previous summary

judgment order, the state court adjudicated that claim and
concluded that Draghi’s strategic decision not to contest the
photographs of red marks on Freeman’s neck was appropriate in
13

light of the state’s case and the potential for harm to the
credibility of the defense.

Because the state court properly

applied the standard for evaluating ineffective assistance of
counsel, summary judgment was granted in favor of the Warden on
that claim.
In the addendum claims, McGrath again alleges that Draghi
was ineffective for failing to produce an expert to testify
about the photographs of Freeman’s neck.

He alleges that an

expert would have testified to noticeable changes in the
photographs and to whether the photographs showed hand prints.
Presumably, McGrath offers the new evidence to support that
claim.6
The ineffective assistance of counsel claim based on a
failure to consult an expert about the photographs was already
decided in favor of the Warden.

In addition, “review under

§ 2254(d)(1) is limited to the record that was before the state
court that adjudicated the claim on the merits.”
Pinholster, 563 U.S. 170, 181 (2011).

Cullen v.

Because McGrath did not

To the extent that McGrath argues new claims or theories
related to the photographs in his memorandum that accompanies
the new evidence, those cannot be considered in support of his
petition. He has not moved to amend the petition, and it is too
late to do so now. In addition, he has not shown that his new
claims or theories were exhausted in state court, and the state
court decisions submitted to the court show that they were not
exhausted.
6

14

provide Dr. Thomas’s letter to the state court, he cannot submit
that evidence here.
Further, even if the new evidence were properly before the
court, it would not support McGrath’s claim.

Dr. Thomas’s

letter says that the photographs do show the same injuries and
that the marks are consistent with “pressure applied to the
neck,” as in strangulation.

As a result, the opinion supports

and strengthens Draghi’s strategic decision not to pursue expert
testimony about the photographs.

Therefore, the new evidence

does not support McGrath’s claims.
B.

Due Process – Prosecutorial Misconduct – Claim 7
McGrath alleges that the prosecutor violated his due

process rights by allowing Cruz and Freeman to testify falsely.
He contends that their testimony was false because they did not
fully explain their preexisting relationship, which included
Freeman’s role as an informant to the Epsom Police Department.7
He also asserts that Freeman testified falsely that McGrath
caused the red marks on the back of her neck and that McGrath
had destroyed her property.

In addition, McGrath alleges that

the prosecutor introduced tampered photographs of Freeman’s
neck.

The Warden moves for summary judgment on the grounds that

An issue about the relationship between Freeman and Cruz was
also raised in Claim 3 that was decided in favor of the Warden.
7

15

no false testimony was presented at trial, no tampered evidence
was presented, and the assault charge against McGrath based on
Freeman’s injuries was supported by McGrath’s confession.
It does not appear that McGrath raised Claim 7 in his 2013
motion for a new trial in state court or in his second state
court filing, which was denied on December 23, 2014.

Some of

the issues may have been raised for the first time in his notice
of appeal to the New Hampshire Supreme Court that is dated
January 18, 2015, which was declined.

Based on that record,

McGrath has not shown that the claims were exhausted.
Unexhausted claims cannot be considered for purposes of habeas
relief.

See § 2254(b); Jaynes v. Mitchell, 824 F.3d 187, 192

(1st Cir. 2016).

Even if the claims had been exhausted,

however, they would fail based on de novo review.
A conviction obtained through the deliberate use of false
evidence or the failure to correct evidence that is known to be
false violates due process under the Fourteenth Amendment.
Napue v. Illinois, 360 U.S. 264, 269 (1959).

The knowing use of

false testimony to obtain a conviction also violates due
process.

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

In

order for a conviction to be obtained by false evidence or
testimony so that a new trial is warranted, however, the
evidence must be material to the outcome under the standard of
“‘any reasonable likelihood that the false testimony could have
16

affected the judgment of the 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)).
As the Warden explains, McGrath has not shown that any
false testimony or false evidence was presented to the jury in
his case.

Cruz and Freeman testified truthfully about their

preexisting relationship.

Freeman’s tip to the police about

someone who was later arrested on other charges never came up at
trial so no false testimony was given.8

In addition, testimony

about Freeman’s assistance to the police, which occurred years
before the incident with McGrath, could not have changed the
outcome of the case against McGrath, particularly in light of
the overwhelming evidence against McGrath.
McGrath has not shown that Freeman testified falsely about
the marks on her neck.

Indeed, McGrath apologized for

strangling Freeman and told Cruz he had choked her.
It is not clear what issue McGrath intends to raise as to
Freeman’s testimony about the destruction of property.

To the

extent McGrath is challenging, again, Freeman’s testimony about
what was broken and the value of the broken property, that issue
was addressed in the previous summary judgment order in the
context of ineffective assistance of counsel.

8

Raising the same

McGrath knew about Freeman’s tip to the police.
17

issue as a due process claim does not change the outcome.9
Otherwise, McGrath has not shown what testimony was false or how
it might have been material to his conviction.
Therefore, the Warden is entitled to summary judgment on
Claim 7.
C.

Due Process – Brady Violations- Claim 8
McGrath alleges that his conviction was obtained in

violation of due process because the state destroyed or did not
turn over to the defense a booking video that would have shown
his demeanor at the time he was arrested, photographs that do
not show hand prints on Freeman’s neck, and a police dispatch
report that shows Cruz was in the driveway when McGrath was
breaking things in the house.

The Warden responds that McGrath

does not appear to have raised the photograph claim in state
court and that the other two issues lack merit.
“Under Brady, a defendant’s right to due process is
violated when the prosecution suppresses evidence that is both
favorable to the accused and material either to guilt or
innocence.”

DeCologero v. United States, 802 F.3d 155, 161 (1st

Cir. 2015) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963))
(internal quotation marks omitted).

Evidence is material “when

The issue of Freeman’s testimony about the property
destroyed was raised in Claim 1, parts (h) and (i). Claim 1 was
decided in favor of the Warden.
9

18

there is any reasonable likelihood it could have affected the
judgment of the jury.”

Wearry v. Cain, 136 S. Ct. 1002, 1006

(2016).
1.

Booking Video

McGrath asserts that the state had a video, showing him
being booked at the Epsom Police Department, that was not
provided to the defense.

He argues that the video would have

shown that he could not have acted knowingly or purposefully
when he assaulted Freeman, threw the framed picture at the car
windshield, and broke things in the house because he had been
drinking and had taken medication.

He further argues that the

video would have contradicted Freeman’s testimony about his
condition when he strangled her and Cruz’s testimony that
McGrath was not impaired when he was arrested.

McGrath raised

the claim about the booking video in his second appeal to the
New Hampshire Supreme Court, which was declined.
McGrath has not shown that a booking video existed or what
it would show.

Because McGrath contends that he has no memory

of the evening when the incident occurred, he cannot remember
the booking or what his demeanor might have been at that time.
Therefore, McGrath has not shown that the video, if it existed,
would have been favorable to him.

19

Therefore, McGrath has not

shown that the state withheld favorable evidence or that the
booking video could have affected the outcome in his case.
2.

Photographs

McGrath contends that the state withheld photographs that
do not show hand prints on Freeman’s neck.
that claim in state court.

He did not raise

Because the photograph claim was not

exhausted, it cannot be considered in support of McGrath’s
§ 2254 petition.
Even if it were considered, McGrath provides no proof that
the state had photographs that did not show prints on Freeman’s
neck.

Without some evidence that the state had material

photographs that were withheld, McGrath cannot prove the claim.
Further, given the other evidence against McGrath, including his
confession, any such photographs would not have changed the
outcome of the case.
3.

Police Dispatch Report

McGrath contends that the state withheld the Epsom police
dispatch report that would have shown that Cruz was parked in
the McGraths’ driveway at the same time that Freeman got a call
at work about McGrath breaking things in the house.

He contends

that the dispatch report could have been used to impeach Cruz’s
testimony that the house was quiet when he arrived.

20

The

dispatch report is in the record, however, and McGrath has not
shown that it was withheld from the defense.
McGrath also has not shown that the dispatch report
contradicts Cruz’s testimony that the house was quiet when he
arrived.

Even if McGrath could show, which he has not done,

that the dispatch report indicated Cruz was at the house when
the neighbor called Freeman at work about McGrath breaking
things, that would not have changed the outcome in his case.
Therefore, McGrath has not shown a due process violation.
D.

Ineffective Assistance of Counsel
McGrath alleges seventeen claims of ineffective assistance

of counsel in Claim 6.
favor of the Warden.

Claim 6(d) has already been decided in
To succeed on a claim of ineffective

assistance of counsel under § 2254, a petitioner must show “that
‘counsel’s performance was deficient’ and ‘that the deficient
performance prejudiced the defense.’”

Woods v. Donald, 135 S.

Ct. 1372, 1375 (2015) (quoting Stickland v. Washington, 466 U.S.
668, 687 (1984)).

A court considering the claim “‘must indulge

a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.’”

Woods, 135

S. Ct. at 1375 (quoting Strickland, 466 U.S. at 689).

21

1.

Lack of Investigation and Trial Strategy

McGrath charges generally in Claim 6, parts (a) and (b),
that Draghi provided ineffective assistance by failing to
investigate the charges against him, including failing to hire
an investigator, and failing to develop a trial strategy.

He

then provides the specific failings he attributes to the lack of
an investigation and trial strategy in Claim 1, parts (c)
through (k).
With respect to trial strategy, Draghi’s affidavit
submitted for purposes of the state court proceeding on
McGrath’s motion for a new trial, shows that Draghi did have a
trial strategy that McGrath approved.

Draghi states that

McGrath suggested a theory that Freeman and Cruz conspired to
lie about him to get him arrested so that Freeman could have
their home without rent and to help her in the divorce.

Draghi

said he would not recommend that strategy and suggested instead
that they hold the state to its burden to prove the charges.
Draghi also said he told McGrath that he would pursue the
strategy McGrath sought.

After Draghi explained the charges and

the cross examination process to address the charges, McGrath
chose a strategy based on a theory that Freeman, acting alone or
with someone else, caused the red marks on her neck herself and
damaged the property in the home.

22

In his discretionary appeal to the New Hampshire Supreme
Court dated March 13, 2015, McGrath confirmed the trial strategy
he had chosen to pursue at trial.

McGrath listed as item J in

support of his claim of ineffective assistance of counsel:
“Failed to pursue the defense approved by McGrath, which was
that McGrath did not do it or did not do any of the charged
acts.”

Therefore, McGrath’s claim is that Draghi was

ineffective in the manner in which he presented the defense, not
that he lacked a strategy.

Those issues are raised in Claim 6,

parts (l) through (q).
2.

Tick Bite

McGrath alleges in Claim 6, parts (c) and (j), that Draghi
was ineffective in failing to pursue evidence about Freeman’s
tick bite.

As is discussed in the previous summary judgment

order, however, McGrath knew about the tick bite at the time of
trial but did not tell Draghi about it.

In addition, the state

court found that evidence of the tick bite, which occurred more
than two months before the assault, would not have helped the
defense in light of the photographs showing red marks on both
sides of Freeman’s neck.

Therefore, McGrath has not shown that

Draghi provided ineffective assistance based on a lack of tick
bite evidence or that a failure to present the evidence
prejudiced his defense.

23

3.

Demeanor

In Claim 6(e), McGrath charges that Draghi was ineffective
because he did not interview Freeman’s co-workers at Cumberland
Farms about her demeanor after the assault.

McGrath contends

the co-workers would have provided information that Freeman’s
demeanor was not consistent with someone who had been assaulted.
McGrath raised the issue of Freeman’s demeanor in Claim
1(g), arguing that Draghi should have retained an expert to
provide testimony about Freeman’s demeanor based on the
photographs that showed her smiling.

The court noted that the

state court did not address the claim and concluded that McGrath
had not provided a plausible theory that an expert would have
provided helpful testimony based on Freeman’s photograph,
particularly in light of all the evidence against McGrath.
McGrath has not shown that Freeman’s co-workers would have
provided evidence that Freeman’s demeanor was inconsistent with
someone who had been assaulted or that any such testimony would
have helped his case.

Therefore, even if McGrath could show

that Draghi should have interviewed Freeman’s co-workers, he
cannot show that the lack of their testimony was prejudicial.

24

4.

Property Damage

McGrath alleges in Claim 6, parts (f), (g), (k), and (p),
that Draghi should have interviewed witnesses about the
property damage at the house, should have obtained Rent-A-Center
records about the rented property, and should have crossexamined Freeman about discrepancies between her testimony and
other evidence about damaged property.

To the extent McGrath’s

claim is that Draghi should have challenged the ownership and
amount or type of property damage, those issues were addressed
and resolved against him in the previous summary judgment order.
McGrath’s claims that Draghi should have interviewed
neighbors about the property damage are unclear.

McGrath

appears to again argue that Draghi could have challenged
Freeman’s testimony that she did not know Shyla Valley if he had
interviewed Valley, which would have undermined Freeman’s
credibility.10

The same issue was raised and resolved in favor

of the Warden in the previous summary judgment order.
McGrath also contends that Draghi should have interviewed
the neighbor identified as “Dale” about the incident.

Freeman

testified that after she got home from work she helped Dale pick
up glass that was in his front yard.

McGrath does not explain

Freeman did not testify that she did not know the neighbor,
she avoided giving the neighbor’s name and said that they were
not close.
10

25

what benefit Dale’s version of the events would have provided
but appears to suggest that Freeman did not help pick up glass
in Dale’s yard.

Even if Freeman did not help pick up glass,

impeaching Freeman on that small detail would not have changed
the outcome in the case.
In addition, McGrath argues that Draghi should have
obtained records from Rent-A-Center to show that McGrath, not
Freeman, rented the property in their home and should have
cross-examined Freeman about inconsistencies in her claims of
what property was damaged.

Both issues were raised and decided

against McGrath in the previous summary judgment order.

Nothing

in McGrath’s subsequent filings has shown that Draghi’s
representation was ineffective based on those issues.
5.

Photographs

In Claim 6(i), McGrath faults Draghi for failing to call an
expert witness at trial to testify that the photographs of
Freeman’s neck are different and do not show hand or finger
prints.

The court previously found in favor of the Warden on

McGrath’s claim that Draghi provided ineffective assistance
because he did not call a medical expert to testify about the
photographs of Freeman’s neck.

It is unclear what kind of

expert McGrath is referring to in Claim 6(i).

26

As is discussed above, the letter from Dr. Thomas that
McGrath submitted contradicts McGrath’s theory that the
photographs show different or inconsistent injuries.

The

photographs themselves, which McGrath also submitted, support
Dr. Thomas’s opinion.

McGrath has not shown that Draghi

provided ineffective assistance of counsel based on the lack of
an expert to testify about the photographs of Freeman’s neck.
6.

Opening Statement

McGrath contends, in Claim 6(l), that Draghi’s opening
statement shows misconduct, lack of professionalism, and lack of
an interest in representing him.

Specifically, McGrath objects

to the following part of the opening statement:
Ladies and gentlemen, my client is innocent. He’s
innocent until Mr. Cherniske proves to you otherwise.
I could do absolutely nothing today. Call absolutely
no witnesses and question none of the State's
witnesses. And if the State hasn’t met their burden,
it’s your obligation to find my client not guilty.
Trial Trans. May 24, 2012, at 24, doc. no. 8-5, p. 24.

The

claim is based on McGrath’s misunderstanding of the opening.
It appears that McGrath did not exhaust this claim.

Even

if has been exhausted, it lacks merit.
McGrath apparently interprets the quoted part of Draghi’s
opening statement to mean that the defense had no witnesses and
that Draghi was not defending him.

Instead, Draghi was

explaining the state’s burden of proof, an important element of
27

a criminal defense.

Therefore, McGrath has not shown

ineffective assistance based on the opening statement.
7.

Booking Video

McGrath contends in Claim 6(h) that Draghi provided
ineffective assistance by failing to get a booking video to show
his demeanor when he was at the Epsom Police Station.

The

Warden points out that the issue of the booking video was raised
only as a due process claim in McGrath’s discretionary appeal to
the New Hampshire Supreme Court.

For that reason, the claim is

not exhausted and cannot support McGrath’s petition.
The claim would also fail on the merits.

In the due

process claim, McGrath argued that the state withheld the video.
It is not clear how Draghi’s representation was ineffective if
the video was not available.

In addition, as is explained in

the context of the due process claim, McGrath has not shown that
a booking video existed or that it provided favorable evidence
to show that he could not have acted knowingly or purposefully
during the incident.

In the absence of a showing that favorable

evidence existed and was not introduced by Draghi, McGrath
cannot prove ineffective assistance of counsel based on a
failure to introduce the video at trial.

28

8.

Circumstances of the Arrest
In Claim 6, parts (m) and (n), McGrath challenges Draghi’s

decision not to cross-examine Cruz about his testimony that he
intended to talk with McGrath, and not to arrest him, when he
arrived at the house and his failure to move to suppress
McGrath’s “implied confession” when he surrendered to Cruz.
McGrath argues that because Cruz knew there was a warrant for
McGrath’s arrest, he did plan to arrest him.

He also argues

that his “implied confession” was illegally obtained because
Cruz did not read the Miranda rights to McGrath.
McGrath challenged Draghi’s decision not to cross-examine
Cruz about the circumstances of McGrath’s confession and his
arrest in Claim 1, parts (a) and (d).
granted in the Warden’s favor.

Summary judgment was

Therefore, those issues are

resolved and will not be reconsidered here.

The issue of

Miranda rights and the implied confession was not raised in
Claim 1.
In support of his motion for a new trial, McGrath raised an
issue about the inconsistency between Cruz’s police report,
which described arresting McGrath, and Cruz’s testimony, which
described his voluntary surrender.

Draghi testified at the

hearing on the motion that he decided not to cross-examine Cruz
about the inconsistency to avoid emphasizing McGrath’s actual
confession and the implied confession of the voluntary
29

surrender.

The issue of challenging evidence of the implied

confession due to a failure to warn of Miranda rights was not
raised in the motion for a new trial and was only raised in
McGrath’s appeal to the New Hampshire Supreme Court, which was
declined.

Even if the claim were exhausted, however, it would

fail on the merits.
McGrath deems his voluntary surrender to Cruz as an implied
confession.

He believes that Cruz should have provided a

warning of the Miranda rights before he voluntarily surrendered.
“Once an individual is in custody, police must advise the
arrestee of his or her constitutional rights before
interrogation.”

United States v. Candelario-Santana, 834 F.3d

8, 18 (1st Cir. 2016) (citing Miranda v. Arizona, 384 U.S. 436,
467-68 (1966)).

If a person is not warned of his Miranda

rights, any statement elicited during custodial interrogation is
inadmissible.

Id.

In this case, before he was taken into custody, McGrath
told Cruz that he choked Freeman.
surrendered to Cruz.

McGrath then voluntarily

Therefore, neither McGrath’s actual

confession nor the implied confession by voluntarily
surrendering were inadmissible due to a lack of Miranda
warnings.
McGrath has not shown ineffective assistance of counsel
based on Draghi’s decision not to cross-examine Cruz about the
30

arrest details and failure to move to suppress the “implied
confession.”
9.

Relationship Between Freeman and Cruz

In Claim 6(o), McGrath contends that Draghi provided
ineffective assistance by failing to cross-examine Freeman and
Cruz about Freeman’s role in providing assistance to the Epsom
police.

As is explained above in the context of McGrath’s due

process claim raising the same issue, Freeman and Cruz testified
about their friendly relationship.

The additional information

about Freeman’s tip to the police years before McGrath assaulted
her would not have changed the outcome in the case.
10.

Withdrawal from Representation

McGrath contends in Claim 6(q) that Draghi should have
withdrawn from representing him because of violations of the New
Hampshire Rules of Professional Conduct.

McGrath raised an

issue about Draghi’s representation based on his motion to
withdraw for the first time in his “Motion to Amend Motion”
filed on January 3, 2015, in Merrimack County Superior Court.
The motion was filed after the court had denied his prior
motion, and it does not appear that the court considered the
motion to amend.

McGrath also raised an issue about

representation in his appeal of the court’s order denying his
prior motion, arguing that Draghi helped the prosecutor.
31

One issue appears to arise from Draghi’s withdrawal from
representing McGrath in December of 2012.

Although Draghi’s

motion to withdraw does not appear to be included in the record,
McGrath asserts that Draghi withdrew based on New Hampshire Rule
of Professional Conduct 1.7(a), which pertains to representation
under a conflict of interest.11

McGrath mistakenly assumes that

Draghi withdrew under Rule 1.7(a)(1) because of a conflict due
to representation of another client whose interests were adverse
to McGrath’s interests.

Based on that mistake, McGrath weaves a

theory of conflicted representation from the beginning of the
case.
Instead, it appears that Draghi withdrew under Rule
1.7(a)(2) because some of the issues to support a motion for a
new trial were claims of ineffective assistance of counsel.
counsel was appointed in January of 2013 to represent McGrath

11

Rule 1.7(a) provides:
(a) Except as provided in paragraphs (b) and (c), a
lawyer shall not represent a client if the
representation involves a concurrent conflict of
interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be
directly adverse to another client; or
(2) there is a significant risk that the
representation of one or more clients will be
materially limited by the lawyer's responsibilities to
another client, a former client or a third person or
by a personal interest of the lawyer.
32

New

for purposes of the motion for a new trial.

Therefore, even if

the claim were exhausted, it fails on the merits.
Similarly, the issue about Draghi’s remark that the
prosecutor was new and would need help was not exhausted and
would fail on the merits.

McGrath provides no evidence or any

hint that Draghi helped the prosecutor during the criminal case.
Draghi’s remark does not show that he helped the prosecutor.
McGrath has not shown ineffective assistance of counsel
based on a theory that Draghi should have withdrawn from
representing him.
Conclusion
For the foregoing reasons, the Warden’s motion for summary
judgment (document no. 52) is granted.

All of the claims raised

by McGrath have been resolved in favor of the Warden.
Because McGrath has not made “a substantial showing of the
denial of a constitutional right,” the court does not issue a
certificate of appealability.

28 U.S.C. § 2253(c)(2).

The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
__________________________
Joseph DiClerico, Jr.
United States District Judge
November 21, 2016
cc: Paul J. McGrath, pro se
Elizabeth C. Woodcock, Esq.
33