Towle v. NH State Prison, Warden
Filing
172
ORDER: The respondents motion for summary judgment as to Claims 15 through 27 (Doc. No. 133) is granted in part and denied in part, as follows: a. the motion is granted as to Claims 15 through 19, and 26; b. the motion is denied without prejudice as to Claims 20 through 24; and c. the motion is denied as moot as to Claims 25 and 27. The respondents motion for summary judgment as to Claims 1 through 14 (Doc. No. 139) is granted. The court will issue a separate order with briefing instructions as to Claims 20 through 24. So Ordered by Judge Steven J. McAuliffe.(lat)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Robert V. Towle
Case No. 15-cv-117-SM
Opinion No. 2019 DNH 173
v.
Warden, New Hampshire State Prison
O R D E R
Petitioner Robert V. Towle has filed this action, pursuant
to 28 U.S.C. § 2254, challenging the legality of his present
incarceration pursuant to his 2013 convictions for sexually
assaulting his son, J.T., and for being an accomplice to sexual
assaults of J.T. by two other individuals.
See § 2254 Pet.
(Doc. No. 1), as amended by Doc. Nos. 9-1, 65, 67, 91, 123
(collectively “Petition”).
Before the Court are two motions for
summary judgment (Doc. Nos. 133, 139), filed by the Respondent,
the Warden of the New Hampshire State Prison, and Towle’s
objections (Doc. Nos. 158, 161) to those motions.
Background 1
Petitioner was convicted on January 29, 2013, of four
counts of aggravated felonious sexual assault (“AFSA”) for
1The
background set forth in this section has been gleaned
from the record before, and decisions of, the state courts
involved in Towle’s trial, post-conviction litigation, and
appeals. See Cullen v. Pinholster, 563 U.S. 170, 181 (2011)
(“Review under § 2254(d)(1) is limited to the record that was
before the state court that adjudicated the claim on the
merits.”).
engaging in fellatio and anal penetration with his minor son,
J.T., and four counts of criminal liability for the conduct of
another for being an accomplice to the sexual assaults of J.T.
by Edna Jodoin and Katie Wilmot, after a jury trial held in the
New Hampshire Superior Court, sitting at Coos County (“CCSC”),
State v. Towle, Nos. 08-S-289, 09-S-96, -97, -99 (“Towle
Crim.”).
See generally Pet. (Doc. No. 1, at 1); State v. Towle,
111 A.3d 679, 681 (N.H. 2015) (citations omitted). 2
The court
sentenced Petitioner on March 11, 2013 to serve 57 - 114 years
in prison, and ordered that he have no contact with J.T. and
Petitioner’s other minor son.
See Towle, 111 A.3d at 681.
Prior to trial, Petitioner waived his right to counsel and
indicated he wished to represent himself.
The trial court held
a two-hour hearing on May 1, 2012, pursuant to Faretta v.
California, 422 U.S. 806, 835 (1975), to determine whether
Petitioner’s waiver of his right to counsel was knowing,
intelligent, and voluntary.
See generally May 1, 2012 Faretta
Colloquy Hr’g Tr. (“Faretta Tr.”) (Doc. No. 19). 3
The CCSC
2This
was Petitioner’s second trial on these offenses. See
State v. Towle, 35 A.3d 490 (N.H. 2011). The jury convicted
Towle after his first trial, and the New Hampshire Supreme Court
reversed the convictions, finding that the trial court had
improperly denied Towle the right to represent himself at trial.
See id. at 494.
3Respondent
filed this and other relevant transcripts as
part of an addendum (Doc. No. 19) to its June 26, 2018 Motion to
Dismiss (Doc. No. 18). Those documents are maintained
conventionally in the Clerk’s office.
2
concluded that Petitioner’s waiver was knowing and voluntary,
and it approved a partial representation plan proposed by
Petitioner and his attorney.
Under that plan, Petitioner would
represent himself “from the moment the jury [was] sworn until
the moment the jury retire[d] to begin deliberations, during
which period Attorney [Joseph] Fricano [was] appointed and
act[ed] as standby counsel.”
12, 13, 55.
Id. at 65; see also id. at 7-8,
Prior to the jury being sworn in, and after the
jury retired to deliberate, Petitioner was represented by
Attorney Fricano.
See id.
The New Hampshire Supreme Court (“NHSC”) affirmed
Petitioner’s convictions on direct appeal but reversed the nocontact order imposed at sentencing.
682.
See Towle, 111 A.3d at
Petitioner’s sentence remains otherwise intact.
Id. at
690.
On April 2, 2015, Petitioner filed his Petition in this
Court.
On August 28, 2015, the Court issued a preliminary
review order, identifying fourteen proposed grounds for relief
in the petition, and directing Petitioner to either: 1) file a
motion to amend his petition asserting the federal nature of
each of the proposed grounds for relief and demonstrating that
each of those federal claims has been exhausted in the state
courts; or 2) file a motion to stay this civil action to allow
him to exhaust his state court remedies on his federal claims.
See Aug. 28, 2015 Order (Doc. No. 5).
3
Thereafter, Petitioner filed a motion to amend (Doc. No. 9)
his Petition.
The Court entered an Order (Doc. No. 13) granting
the motion and finding that Petitioner had exhausted the federal
grounds for Claims 1-14.
Petitioner then filed two additional
motions to amend (Doc. Nos. 65, 67), and a motion to stay this
action (Doc. No. 85) to allow him to exhaust state court
remedies for the federal claims raised in those two motions to
amend.
The Court granted Petitioner’s motion to stay.
See June
14, 2017 Order (Doc. No. 88).
Subsequently, Petitioner filed a motion to lift the stay
(Doc. No. 90), and a fourth motion to amend (Doc. No. 91) the
Petition.
The Court lifted the stay on January 9, 2018 and
entered an Order identifying ten new federal claims (identified
as Claims 15 - 24) raised in Petitioner’s second, third, and
fourth motions to amend.
See Feb. 15, 2018 Order (Doc. No. 117)
(approving Jan. 16, 2018 R&R (Doc. No. 100)).
The Court granted
the motions to amend, to the extent they alleged violations of
Petitioner’s rights under federal constitutional law.
See id.
On February 1, 2018, this Court entered an Order (Doc. No. 107)
granting another stay in this matter to allow Towle to again
return to the state courts to exhaust claims alleging that his
trial and appellate counsel in the state criminal proceedings
had denied him the effective assistance of counsel in violation
of his Sixth and Fourteenth Amendment rights.
4
On May 31, 2018, Petitioner filed a motion to lift the stay
(Doc. No. 123) which this Court construed, in part, as a fifth
motion to amend the Petition to add three claims asserting
ineffective assistance of trial counsel, identified as Claims 25
- 27.
See June 28, 2018 Order (Doc. No. 127).
Respondent filed
two motions for summary judgment, one addressing Claims 1 - 14
(Doc. No. 139) and one addressing Claims 15 - 27 (Doc. No. 133).
Towle filed objections (Doc. Nos. 158, 161) to the motions for
summary judgment. 4
Discussion
I.
Claims Not Decided in the State Courts
A.
De Novo Standard
A federal court may review a petition for a writ of habeas
corpus “only on the ground that [a petitioner] is in custody in
violation of the Constitution or laws or treaties of the United
States.”
28 U.S.C. § 2254(a).
When a petitioner raises a
federal constitutional claim in the state court, and the state
court does not address that claim, the federal habeas court will
consider the claim de novo.
See Pike v. Guarino, 492 F.3d 61,
67 (1st Cir. 2007).
4The
court has, this date, issued an Order (Doc. No. 171)
dismissing Claims 25 and 27 as untimely filed. Accordingly, to
the extent the Respondent seeks summary judgment as to those two
claims, the motion is denied as moot.
5
B.
Claims 1 and 2
In his Petition, Towle asserted the following claims,
identified by the Court as Claims 1 and 2:
1.
The trial court erred in allowing the prosecutor to
refresh J.T.’s recollection when J.T. had not testified to
any lack of recollection, concerning whether Towle engaged
in fellatio with J.T. on one occasion.
2.
The trial court erred in allowing the state to elicit
testimony that photographic evidence corroborated the
allegations against Towle, while the photograph itself was
excluded from the trial.
Aug. 28, 2015 Order (Doc. No. 5, at 2).
Towle raised these claims in a post-conviction motion,
entitled “Motion to Vacate II” (“MTV II”) (Doc. No. 9-1) filed
in his criminal case in the CCSC. 5
The CCSC denied that motion
and dismissed Claims 1 and 2 because it believed “they
present[ed] the very same issues that the defendant raised and
the New Hampshire Supreme Court decided on his direct appeal . .
. [and] the Supreme Court’s rulings are final.”
2015 Order, Towle Crim. (Doc. No. 9-2, at 2).
See Sept. 30,
Towle, however,
did not argue in his brief on direct appeal that the two
evidentiary rulings described in Claims 1 and 2 violated his
federal constitutional rights; thus, he raised those issues as
claims that the trial court had misapplied state rules of
5While
Towle’s direct appeal of his conviction was pending,
Towle filed and litigated a motion entitled “Motion to Vacate I”
(“MTV I”) in the CCSC. The MTV I proceedings are not pertinent
to this Court’s consideration of the instant motions for summary
judgment.
6
evidence.
See Apr. 4, 2014 Def.’s Rule 7 Appeal Br. (“Def.’s
Br.”), State v. Towle, No. 2013-0217 (N.H.) (“Direct Appeal”)
(Doc. No. 139-2).
In its opinion affirming Towle’s convictions,
the NHSC did not address the claims raised on appeal in federal
constitutional terms.
See Towle, 111 A.3d 679 (N.H. 2015).
Accordingly, the court considers the federal nature of Claims 1
and 2 de novo.
1.
See Pike, 492 F.3d at 67.
Claim 1
In Claim 1, Towle claims the trial court violated his Sixth
and Fourteenth Amendment rights when it allowed the prosecutor
to refresh J.T.’s recollection, when J.T. had not testified to
any lack of recollection, concerning whether Towle engaged in
fellatio with J.T. on one occasion.
8).
See Pet. (Doc. No. 1, at 7-
The NHSC summarized the facts related to this claim as
follows:
The defendant first argues that the trial court erred
by permitting the State to use prior statements to
refresh the victim's recollection of the final sexual
assault that occurred in early 2006, after the victim
had been removed from the defendant's custody. The
defendant asserts that the victim testified
unequivocally that the defendant had not sexually
assaulted him on that occasion and was neither
confused nor uncertain. Therefore, he argues, the
State had no justification for refreshing his
recollection.
The record reflects the following exchange on direct
examination:
7
[State]: And did anything happen at that time
when your father [was] there?
[Victim]: Well, I had showed up. And he was in
the computer room with the baby. I went back
there. And we were chit-chatting. He was doing
whatever on the computer and drinking a beer.
And then he had asked me to take my pants off.
And I was like, really? You know, we're already
in this situation and you're right here asking me
to take my pants off. And I just had a serious
problem with that.
[State]:
And then what ended up happening?
[Victim]: To the best of my knowledge, I just
decided against it. I was really uncomfortable
with the whole situation. I didn't want it to
happen, period. You know? It was I'm here to
see my brother, not to engage with you. You
know? It's unnecessary.
. . .
[State]:
[D]id you argue with him or what?
[Victim]: No, I don't believe there was any real
arguing. Just, you know, I felt my time being
there was over and I believe I left.
. . .
[State]: And so did anything happen between you
and your father at that location?
[Victim]:
didn't.
No, because I believe I made sure it
The defendant, who represented himself at trial,
revisited the incident during his cross-examination of
the victim:
[Defendant]: [The State] asked you—he was trying
to ask you, you know, if you were assaulted by me
at the Reed's [sic] house on High Street.
[Victim]:
Right.
8
[Defendant]: And just in your testimony, you
conveyed to him that nothing happened?
[Victim]: To the best of my memory, nothing
happened. I put it—you know, I said no.
[Defendant]: Just a second ago, did you not just
say to me that it wasn't in front of [infant
son], it was—
[Victim]: Well, the situation that you were
trying to do wasn't happening in front of [infant
son].
[Defendant]: My question to you was not whether
there was a situation. My question was—
[Victim]: Well, if you're referring to nothing
happening, you know, you trying to get me to take
my pants off, and if that's not it, then please
fix me—point me to where I'm supposed to go with
that. Correct me. That's what I'm trying to
say.
On redirect, the State attempted to use the victim's
prior statements to refresh his recollection of the
incident. The defendant objected on the basis that
the State had not laid a foundation for refreshing the
victim's recollection. The trial court sustained the
objection and ordered the State to first establish
that the victim's recollection needed refreshing. The
following exchange occurred:
[State]: Now, in terms of your testimony
yesterday during direct and cross-examination,
you talked about visiting your brother . . .
[Victim]: Uh-huh.
. . .
[State]: And you recall the Defendant
propositioning you at that time to do what had
happened many times before that you testified?
[Victim]: Yes, sir.
9
[State]: And at that point you testified that you
didn't recall him actually performing oral sex on
you at that time; is that correct?
[Victim]: I did.
Next, the State asked the victim to review a portion
of his interview with a staff member at the Child
Advocacy Center and whether the interview refreshed
his recollection about the incident that had occurred
in early 2006. The victim stated that the interview
did refresh his recollection, and the defendant
objected.
During the ensuing sidebar conference, the defendant
argued that the State was attempting to refresh the
victim's recollection when the victim, on direct
examination, had never stated that he could not
remember what had occurred and stated clearly that
nothing had happened. The State argued that the
victim had just declared that he did not recall what
had occurred, and only at that point did the State ask
the victim to review the interview transcript. The
trial court overruled the objection and allowed the
State's examination to continue. The State continued
its redirect examination and the victim stated that he
remembered the defendant asking him to take his pants
off and the defendant actually performing oral sex on
him.
The defendant reiterated his objection during the next
day of trial and in a motion to dismiss after the
conclusion of the State's case. The State argued that
the victim had stated on redirect examination that he
did not remember if anything had occurred during that
visit with the defendant in early 2006 and that its
efforts to refresh the victim's recollection were
proper. After noting that it had “observed and heard
the entire course of trial and . . . the circumstances
presented,” the trial court ruled that refreshing the
victim's memory was proper.
Towle, 111 A.3d at 682–83.
The rules of admissibility of evidence are governed by
state law, which is beyond the province of this Court with
respect to habeas relief, unless there is a federal
10
constitutional claim raised.
61 (1st Cir. 2006).
See Kater v. Maloney, 459 F.3d 56,
“An erroneous evidentiary ruling that
results in a fundamentally unfair trial may constitute a due
process violation and thus provide a basis for habeas relief.”
Lyons v. Brady, 666 F.3d 51, 55 (1st Cir. 2012).
“[T]o give
rise to habeas relief, the state court's application of state
law must be so arbitrary or capricious as to constitute an
independent due process violation” and “must so infuse the trial
with inflammatory prejudice that it renders a fair trial
impossible.”
Id. at 55-56 (internal quotation marks, ellipsis,
and citations omitted).
“The Supreme Court has ‘defined the
category of infractions that violate fundamental fairness very
narrowly.’”
Kater, 459 F.3d at 61 (quoting Dowling v. United
States, 493 U.S. 342, 352 (1990)).
“Generally, state-court
evidentiary rulings cannot rise to the level of due process
violations unless they ‘offend some principle of justice so
rooted in the traditions and conscience of our people as to be
ranked as fundamental.’”
Seymour v. Walker, 224 F.3d 542, 552
(6th Cir. 2000) (brackets omitted) (quoting Montana v. Egelhoff,
518 U.S. 37, 43 (1996)).
In his Petition, Towle does not identify any reason why the
trial court’s ruling was “arbitrary or capricious” or how
admission of J.T.’s testimony “so infuse[d] the trial with
inflammatory prejudice” that it rendered Towle’s trial
fundamentally unfair; he only argues that the trial court’s
11
ruling was erroneous under state law.
7-8).
See Pet. (Doc. No. 1, at
Additionally, in his objection to the Warden’s motion for
summary judgment, Towle again argues whether the trial court’s
ruling was correct under the New Hampshire Rules of Evidence.
See May 14, 2019 Pet’r’s Obj. to Resp’t’s Mot. for Summ. J.
(Doc. No. 158, at 1-11).
Towle makes only passing reference to
due process, stating, without explanation, that the trial
court’s ruling was not supported by the record “and prejudiced
Towle to the extent that it rendered the trial fundamentally
unfair.”
Id. at 9.
The NHSC, however, concluded that the trial court’s ruling
was supported by the record, specifically rejecting Towle’s
assertion that “[n]othing in [the victim's] trial testimony . .
. afforded a basis to allow the prosecutor to employ the
refreshing-recollection device.”
Towle, 111 A.3d at 684.
In his testimony, the victim described a myriad of
abuses inflicted on him by the defendant. He
testified with clear and unambiguous language to such
things as statements the defendant made to him, acts
the defendant made him perform or performed on him,
and where and when such acts occurred. When he began
to detail the incident that occurred in early 2006,
however, the tone of his language became uncertain and
ambiguous. In his description of that incident, he
began using phrases such as “I believe,” “to the best
of my knowledge,” or “to the best of my memory” before
detailing what he believed had occurred. This
phraseology suggests uncertainty or a failure of
memory, and the shift from clear and unambiguous
language to uncertain language, along with the trial
court's ability to observe the victim's demeanor,
supports the trial court's reasonable conclusion that
the victim's memory was exhausted. Furthermore, the
victim, on redirect examination, testified that he
12
“didn't recall [the defendant] actually performing
oral sex on [him]” in early 2006. Accordingly, we
conclude that the trial court properly exercised its
discretion by permitting the State to use the victim's
prior statements to refresh his recollection.
Id. at 684-85.
Towle does not allege that he was unable to confront or
cross-examine J.T. about his memory of the event and it was
within the province of the jury to evaluate J.T.’s credibility.
See Roman v. Mitchell, 924 F.3d 3, 8 (1st Cir. 2019).
Accordingly, the Court concludes that regardless of whether the
trial court’s ruling was unquestionably correct, allowing the
prosecutor to refresh J.T.’s recollection was “well within the
universe of plausible evidentiary rulings” and, “therefore, not
so arbitrary or capricious as to work a denial of [Towle’s]
constitutionally secured fair-trial right.”
Island, 640 F.3d 478, 485 (1st Cir 2011).
Coningford v. Rhode
Accordingly, the
Respondent’s motion for summary judgment (Doc. No. 139) is
granted as to Claim 1.
2.
Claim 2
In Claim 2, Towle asserts that the trial court erred in
allowing the state to elicit testimony that photographic
evidence corroborated the allegations against Towle, while the
photographs themselves were excluded from the trial.
(Doc. No. 1, at 10).
See Pet.
The NHSC summarized the facts related to
this claim as follows:
13
Before the trial began, the defendant filed a pretrial motion to exclude five photographs that depicted
the defendant and the victim nude and in various
states of arousal. The trial court granted the motion
to the extent that the photographs and any “explicit
inflammatory testimony” describing the photographs
would not be admissible at trial unless the defendant
“opened the door.” Nevertheless, the trial court
allowed the State to elicit testimony regarding the
photographs and their “inappropriate” nature to
explain why E.J., the witness who brought the sexual
abuse to the attention of the police and the New
Hampshire Division for Children, Youth, and Families
(DCYF), came forward with her allegations. Then,
prior to E.J.'s testimony, the trial court ruled that
the photographs could be described as evidence that
E.J. believed would implicate the defendant in
criminal activity. In reaching this conclusion, the
trial court found that the photographs had significant
probative value, particularly with respect to
explaining why E.J. went to the police and DCYF and
why those agencies took action against the defendant,
but the photographs could unfairly prejudice the
defendant. Therefore, the trial court excluded the
photographs and any graphic descriptions thereof but
permitted testimony that E.J. had evidence that she
believed substantiated her allegations in order to
provide context to her actions and testimony.
During the trial, other witnesses briefly discussed
the photographs in various contexts. The victim,
during the State's direct examination, testified that
he finally “opened up” about the sexual abuse after
his guardian ad litem (GAL) confronted him with the
fact that she had “[seen] the pictures.” This was the
only time during trial that this evidence was referred
to as being photographic in nature.[FN 1] Attorney
Jennifer Dougherty and Karen York, who were both
affiliated with DCYF, Detective Karl Nelson of the
Berlin Police Department, and Attorney Wendy Roberts,
the victim's GAL, were all asked on cross-examination
by the State about physical evidence, specifically
referring to the photographs, brought by E.J. to
substantiate the allegations she made to DCYF and the
Berlin police. The trial court overruled the
defendant's objections to these lines of questioning
because it found that the defendant, during his direct
examination of each witness, had challenged E.J.'s
credibility regarding the claims she had made to DCYF
14
and the Berlin police, as well as the bases for both
entities to take action against him. The trial court
concluded that the defendant had “opened the door” for
the State to correct any false or misleading
impressions the witnesses' responses may have created
and, further, that the probative value of the
testimony the State sought to elicit was not
substantially outweighed by the danger of unfair
prejudice to the defendant.
[FN 1:]
We note that this testimony
occurred prior to the trial court's decision to
prevent E.J. from referring to the photographs as
anything but “evidence.” After the trial court
imposed this limitation, the photographs were
referred to as either evidence or evidence that
E.J. believed was substantial or credible.
Towle, 111 A.3d at 685 & n.1.
Towle does not identify any reason why the trial court’s
evidentiary rulings were “arbitrary or capricious” or how the
witnesses’ testimony about the photographs “so infuse[d] the
trial with inflammatory prejudice” that it rendered his trial
fundamentally unfair.
No. 1, at 10).
Lyons, 666 F.3d at 55, 56; see Pet. (Doc.
Instead, Towle contends the trial court’s
evidentiary rulings were erroneous because “there is no such
‘evidence’ in existence as the court came to know at an
evidentiary hearing outside the presence of the jury.”
(Doc. No. 1, at 10).
Pet.
Towle’s assertion that the photographs
about which the witnesses testified did not exist simply is not
consistent with the record, given that defense counsel moved to
have the photographs excluded, and Towle’s brief on appeal
describes what was depicted in the photographs.
Direct Appeal (Doc. No. 139-2, at 19).
15
See Def.’s Br.,
On direct appeal, Towle challenged the trial court’s
application of New Hampshire Rule of Evidence 403, which states
that “[t]he court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of
the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.”
N.H. R. Evid. 403.
Towle
argued that the cumulative effect of the references to the
photographs created the same impression that would have been
created had more explicit testimony describing the photographs
been admitted.
See Towle, 111 A.3d at 686.
The NHSC held that
the trial court did not abuse its discretion in allowing the
testimony.
See id. at 687.
The trial court allowed testimony about the photographs
because it provided necessary context to the testimony of the
witnesses – specifically, it explained why the witnesses took
certain actions in the case, such as filing a complaint with the
police, opening an investigation, confronting another witness,
and acknowledging acts of sexual abuse.
Only once was the
evidence identified as “pictures,” and that was a passing
reference made by J.T. when he was explaining why he finally
admitted Towle’s abuse to his guardian ad litem (“GAL”).
Otherwise, the witnesses were permitted to testify that they
were in possession of, or had seen, “evidence” corroborating the
reporting witness’s allegations to police and the Division for
16
Children, Youth, and Families (“DCYF”) that Towle had abused
J.T.
Towle himself opened the door to the testimony of the DCYF
witnesses, the Berlin Police Department witness, and J.T.’s GAL
concerning the photographs, by attacking the conclusions they
reached about whether Towle might have sexually assaulted or
otherwise sexually abused J.T., and by attacking whether there
were grounds for the actions that the witnesses took based on
those conclusions.
The trial court allowed the State to elicit
limited testimony about the photographs on cross-examination of
the witnesses, finding that “the witnesses' testimony could,
without clarification, lead the jury to conclude that the Berlin
police and DCYF had no justification for taking action against
the defendant.”
Id.
The trial court’s evidentiary rulings were not “arbitrary”
or “capricious”; throughout the trial, the court ruled that the
limited testimony it allowed about the photographs was necessary
to provide context to the witnesses' actions.
In addition,
Towle has failed to show that any unfair prejudice outweighed
the testimony’s probative value.
The mere fact that evidence
hurts a defendant's case does not make its admission erroneous.
See United States v. Rodríguez-Estrada, 877 F.2d 153, 156 (1st
Cir. 1989).
Such evidence is problematic under the Constitution
only when the evidence “so infuse[s] the trial with inflammatory
17
prejudice” that it renders a defendant’s trial fundamentally
unfair.
Lyons, 666 F.3d at 56.
In Towle’s case the trial court took affirmative steps to
minimize the risk of unfair prejudice by excluding from trial
the most prejudicial aspect of the evidence, the photographs
themselves and any graphic or inflammatory descriptions of the
photographs.
Furthermore, the trial court offered to issue a
limiting instruction to the jury to cure any potential unfair
prejudice that Towle believed to exist, but Towle “declined the
offer.”
Towle, 111 A.3d at 688. 6
In short, Towle has failed to demonstrate that the trial
court violated his right to a fundamentally fair trial under the
Sixth and Fourteenth Amendments when it allowed testimony about
the photographs.
Accordingly, Respondent’s motion for summary
judgment (Doc. No. 139) is granted as to Claim 2. 7
6Cf.
United States v. Blanchard, 867 F.3d 1, 12 (1st Cir.
2011) (defendant declining curative instruction “an have no
complaint” when denied the more drastic remedy of a mistrial).
7In
his objection to the Warden’s summary judgment motion,
Towle contends that the witnesses’ testimony should have been
excluded for an additional reason. He asserts that evidence was
“fruit of the poisonous tree” because the photographs had been
suppressed on Fourth Amendment grounds in Towle’s related child
pornography case. See May 14, 2019 Pet’r’s Obj. to Resp’t’s
Mot. for Summ. J. (Doc. No. 158, at 11-14). Towle cannot use an
objection to a summary judgment motion to add a new claim to a §
2254 petition. See 28 U.S.C. § 2254(b)(1); § 2254 Rule 2(c)
(“The petition must: (1) specify all the grounds for relief
available to the petitioner; [and] (2) state the facts
supporting each ground[.]”).
18
C.
Claims 13 and 14
In his Petition, Towle asserted the following claims,
identified by the Court as Claims 13 and 14:
13. The NHSC erred in using evidence that had been
suppressed at trial in affirming Towle’s convictions.
14. The NHSC erred in using inflammatory descriptions of
photographs that had been suppressed at trial in affirming
Towle’s convictions.
Aug. 28, 2015 Order (Doc. No. 5, at 4).
In Claims 13 and 14, Towle claims the NHSC violated his
Sixth and Fourteenth Amendment rights when it used “suppressed
‘evidence’” and “barred language[,] . . . [specifically,]
explicit and inflammatory descriptions[,] of suppressed
‘evidence’” in its ruling affirming Towle’s convictions.
Pet. (Doc. No. 1, at 35, 38).
See
The “suppressed evidence” to
which Towle refers is the excluded photographs that are the
subject of Claim 2.
The record indicates that Jodoin used her
own camera to take the photos at issue in Claims 13 and 14, and
that she later gave those photographs to the police.
According to Towle, the trial court in his related child
pornography case suppressed those photographs on Fourth
Amendment grounds.
Thus, Towle claims, the NHSC denied him due
process and a fair tribunal when it “introduced” and provided an
“explicit” and “inflammatory” description of the photographs in
its decision affirming his convictions in the cases that are the
subject of this § 2254 action.
See Pet. (Doc. No. 1, at 35-36,
19
38-39); May 14, 2019 Pet’r’s Obj. to Resp’t’s Mot. for Summ. J.
(Doc. No. 158, at 11-13).
Towle raised these claims in a post-conviction motion in
his criminal case, MTV II.
See Doc. No. 9-1, at 4.
The CCSC
denied that motion and dismissed the claims for lack of
jurisdiction, because, as the inferior court, it had no
authority to address claims asserting that the NHSC erred.
Sept. 30, 2015 Order, Towle Crim. (Doc. No. 9-2, at 6).
See
The
NHSC declined Towle’s Notice of Discretionary Appeal (“NODA”).
See Order, State v. Towle, No. 2015-0612 (N.H. Dec. 7, 2015)
(Doc. No. 9-4).
As such, there has been no merits review of
Claims 13 and 14.
To the extent Claims 13 and 14 are not procedurally
defaulted for purposes of federal habeas review, Towle’s Claims
fail for several reasons.
First, while it is true that certain
photographs seized from Towle’s computer were suppressed on
Fourth Amendment grounds in Towle’s related child pornography
case, Towle has not produced any evidence that the five
photographs at issue in Claims 13 and 14, which Jodoin took
using her own camera, and which she gave to the police, were
also suppressed on Fourth Amendment grounds in Towle’s child
pornography case.
Furthermore, in the trial underlying the case at issue
here, the trial court did not exclude the Jodoin photographs on
Fourth Amendment grounds.
It excluded those photographs, and
20
any graphic description of their contents, under New Hampshire
Rule of Evidence 403 because their probative value was
substantially outweighed by the danger of unfair prejudice.
See
Towle, 111 A.3d at 686.
In Claims 13 and 14, Towle essentially asserts that the
NHSC violated his due process rights when it discussed, in its
opinion affirming his conviction, evidence that had been
excluded at trial pursuant to a state evidentiary rule.
Due
process requires that a criminal appellant be afforded “an
adequate opportunity to present his claims fairly in the context
of the State's appellate process.”
600, 616 (1974).
Ross v. Moffitt, 417 U.S.
Stated in other terms, due process requires
that an appeal not be decided arbitrarily without regard to the
merits.
See Evitts, 469 U.S. at 405.
Petitioner has failed to allege, or demonstrate, how the
NHSC’s actions deprived him of an “adequate opportunity” to
“present . . . fairly” his appellate claim challenging the trial
court’s application of New Hampshire Rule of Evidence 403.
Ross, 417 U.S. at 616.
See
Consequently, the Respondent’s motion
for summary judgment (Doc. No. 139) is granted as to those
claims.
D.
Claim 19
In his Petition Towle asserted the following claim, which
the Court has identified as Claim 19:
21
19. Towle’s Sixth and Fourteenth Amendment rights were
violated when he was denied the effective assistance of
trial counsel, when counsel failed to properly raise and
preserve Towle’s claim that his right not to be subject to
double jeopardy was violated by his convictions and
consecutive sentences on two pattern aggravated felonious
sexual assault charges, each alleging that Towle committed
more than one act of aggravated felonious sexual assault on
the same victim, J.T., during the same time period.
Jan. 16, 2018 R&R (Doc. No. 100, at 4) (approved by Feb. 15,
2018 Order (Doc. No. 117)).
In Claim 19, Towle asserts that
Attorney Fricano failed to properly raise and preserve Towle’s
double jeopardy claim challenging the multiple pattern AFSA
counts, discussed below in Claim 15.
Respondent argues that to
the extent Attorney Fricano was in fact representing Towle at
the pertinent time, and not serving only as standby counsel,
Towle’s claim should be denied as the state courts properly
denied this ineffective assistance of counsel claim on the
merits.
Towle raised Claim 19 in his April 17, 2017 post-conviction
motion entitled “Motion to Vacate IV” (“MTV IV”) filed in his
criminal case.
See Doc. No. 91-1, at 3.
The CCSC denied that
motion, citing and incorporating by reference the reasons stated
in the State’s “Objection to Motion to Vacate IV and V
(Supplemental).”
91-9, at 1).
See May 2, 2017 Order, Towle Crim. (Doc. No.
After the CCSC denied Towle’s motion, he asserted
Claim 19 in a NODA.
See id., May 8, 2017 NODA (Doc. No. 91-4,
22
at 4).
The NHSC declined to accept the appeal.
See State v.
Towle, No. 2017-0248 (N.H. June 22, 2017) (Doc. No. 91-5).
Respondent argues that the appropriate standard of review
is deferential, as the CCSC’s order incorporated, by reference,
the state’s merit-based arguments, in denying the MTV IV.
Because it is not entirely clear to the court that the merits of
the claim asserted in Claim 19 were decided in the CCSC’s order
denying MTV IV, this Court will decide the claim de novo.
As stated above, Strickland requires a petitioner claiming
ineffective assistance of counsel to show both that counsel’s
representation fell below an objective standard of
reasonableness, and that prejudice resulted.
687.
See 466 U.S. at
For reasons stated below as to Claim 15, Towle suffered no
double jeopardy violation when he was charged, tried, convicted,
and sentenced consecutively on the two pattern AFSA indictments
with which he was charged.
Counsel’s failure to preserve that
claim, therefore, cannot be deemed prejudicial.
Accordingly,
this court grants Respondent’s motion for summary judgment (Doc.
No. 133) as to Claim 19.
II.
Claims Decided on the Merits in the State Courts
A.
Deferential Standard
A federal court may grant habeas corpus relief “only on the
ground that [a petitioner] is in custody in violation of the
Constitution or laws or treaties of the United States.”
23
28
U.S.C. § 2254(a); see also Cullen, 563 U.S. at 181.
When a
prisoner brings a claim in federal court that was adjudicated on
the merits in state court proceedings,
[f]ederal habeas relief may not be granted for claims
subject to § 2254(d) unless it is shown that the
earlier state court’s decision was contrary to
federal law then clearly established in the holdings
of th[e Supreme] Court, or that it involved an
unreasonable application of such law, or that it was
based on an unreasonable determination of the facts
in light of the record before the state court.
Harrington v. Richter, 562 U.S. 86, 100 (2011) (internal
quotation marks and citations omitted).
A state court’s ruling is contrary to federal law
either when it adopts a rule that contradicts the
governing law set forth in the Supreme Court’s cases
or when it reaches a different result from a Supreme
Court decision under a set of facts that are
materially indistinguishable. . . . To be unreasonable
. . . the application of federal law must be more than
incorrect or erroneous. In other words, some
increment of incorrectness beyond error is required.
Finally, we only overturn state court factual
determinations that are unreasonable in light of the
record.
Rosenthal v. O’Brien, 713 F.3d 676, 683 (1st Cir. 2013)
(internal quotation marks and citations omitted).
The
petitioner bears the burden both of showing that the state court
decision is contrary to, or involves an unreasonable application
of, established federal law, and of rebutting the presumption of
correctness of state court factual findings by clear and
convincing evidence.
See 28 U.S.C. § 2254(e)(1); Rice v.
Collins, 546 U.S. 333, 339 (2006).
24
A federal habeas court examining a state court decision on
the merits presumes that “[w]here there has been one reasoned
state judgment rejecting a federal claim, later unexplained
orders upholding that judgment or rejecting the same claim rest
upon the same ground.”
(1991).
Ylst v. Nunnemaker, 501 U.S. 797, 803
The federal court thus “begin[s] by asking which is the
last explained state-court judgment,” id. at 805 (emphasis in
original),
and “look[s] through subsequent unexplained denials”
to the last reasoned opinion of the state courts, id. at 806.
The federal court “should then presume that the unexplained
decision adopted the same reasoning” as the last reasoned
opinion, and should proceed to consider that rationale in
undertaking its review of the federal claim, unless that
presumption has been rebutted by evidence that the unexplained
decision relied on different grounds than the lower’s court’s
decision.
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
“Section 2254(d) applies even where there has been a
summary denial” of the federal claim in the state courts.
Cullen, 563 U.S. at 187; see Harrington, 562 U.S. at 100 (onesentence summary denial constituted adjudication on the merits
and § 2254(d) applied).
“When a state court rejects a federal
claim without expressly addressing that claim, a federal habeas
court must presume that the federal claim was adjudicated on the
merits. . . .”
Johnson v. Williams, 568 U.S. 289, 301 (2013).
The presumption that a federal claim was adjudicated on the
25
merits is rebuttable under limited circumstances not present
here.
See id.
Where the state courts have summarily denied petitioner’s
federal claims, the petitioner can satisfy the “unreasonable
application” prong of § 2254(d)(1) only “by showing that ‘there
was no reasonable basis’ for the [state court]’s decision.”
Cullen, 563 U.S. at 188 (quoting Harrington, 562 U.S. at 98).
The writ may issue only “in cases where there is no possibility
fairminded jurists could disagree that the state court’s
decision conflicts with [the Supreme] Court’s precedents.”
Harrington, 562 U.S. at 102.
B.
Claim 15
In his Petition, Towle asserted the following claim,
identified by the Court as Claim 15:
15. Towle’s Fifth and Fourteenth Amendment right not
to be subjected to double jeopardy was violated when:
(a) Towle was convicted of two separate counts of
pattern aggravated felonious sexual assault, each
alleging that Towle committed more than one act
of aggravated felonious sexual assault on the
same victim, J.T., during the same time period,
where all of the sexual assaults charged in the
two indictments were part of the same pattern,
and was thus twice convicted of the same offense;
and
(b) Towle was sentenced to consecutive sentences
on each of the two indictments, and was thus
twice punished for the same offense.
26
Jan. 16, 2018 R&R (Doc. No. 100, at 3) (approved by Feb. 15,
2018 Order (Doc. No. 117)).
Two of the indictments upon which Towle was convicted
alleged that Towle committed a “pattern” AFSA offense in
violation of N.H. Rev. Stat. Ann. § (“RSA”) 632-A:2, III. 8
The
indictments at issue differ from one another in that one charged
that Towle made J.T. perform fellatio on him more than once over
the course of a year, and the other charged that Towle performed
fellatio on J.T. more than once during the same time frame.
In
Claim 15(a) Towle argues that his convictions on two counts of
pattern AFSA violated his rights under the Double Jeopardy
Clause because, he argues, the indictments were duplicative and
arguably charged Towle twice with criminal offenses for the same
acts.
Similarly, in Claim 15(b), Towle alleges a second
violation of the Double Jeopardy Clause on the basis that the
separate and consecutive prison sentences the trial court
imposed on the two pattern AFSA charges amount to two
punishments for the same offense.
RSA 632-A:2, III states that:
8
A person is guilty of aggravated felonious sexual
assault when such person engages in a pattern of
sexual assault against another person, not the actor’s
legal spouse, who is less than 16 years of age. The
mental state applicable to the underlying acts of
sexual assault need not be shown with respect to the
element of engaging in a pattern of sexual assault.
27
Towle raised Claims 15(a) and (b) in the state court in a
post-conviction motion filed in the CCSC entitled “Motion to
Vacate III” (“MTV III”).
On April 28, 2106, the CCSC initially
denied the MTV III without stating the reasons for the denial,
see Apr. 28, 2016 Order, Towle Crim. (Doc. No. 161-1, at 4), and
then, in an order denying Towle’s motion to reconsider the April
28, 2016 Order, the CCSC clarified its reasons for denying Towle
relief by incorporating, by reference, the arguments set forth
in the State’s Objection to the MTV III.
See May 19, 2016
Order, Towle Crim. (Doc. No. 161-1, at 8); see also id., Apr.
28, 2016 State’s Obj. to MTV III (Doc. No. 161-1, at 1-3).
Towle raised the federal double jeopardy claims the CCSC denied
in a NODA.
appeal.
See id., June 9, 2016 NODA.
The NHSC declined the
See State v. Towle, No. 2016-0312 (N.H. Aug. 19, 2016)
(Doc. No. 65, at 15).
Respondent argues that this court’s review of the state
courts’ disposition of Claim 15 is deferential, under 28 U.S.C.
§ 2254(d)(1).
Towle does not argue that a different standard
applies with respect to Claim 15, and thus this court applies
that deferential standard in reviewing the state court’s
disposition of Claim 15. 9
The court notes that even if this Court were to apply a de
novo standard of review in evaluating Claim 15, the result would
be the same as that reached here as to that claim.
28
9
The Double Jeopardy Clause, applied to the States through
the Fourteenth Amendment, provides that “[n]o person shall . . .
be subject for the same offence to be twice put in jeopardy of
life or limb. . . .”
U.S. Const. amend. V.
The pertinent
Supreme Court case regarding whether multiple indictments
violate the Double Jeopardy Clause by criminalizing a single
continuous offense is Blockburger v. United States, 284 U.S. 299
(1932).
The Court, in Blockburger, considered whether two drug
sales could be prosecuted as two separate violations of the
Narcotics Act or whether such a prosecution would violate the
defendant’s double jeopardy rights, as the events were part of a
continuous offense.
The Court determined that the federal
statute was intended to penalize separate sales as separate
offenses, however closely they may follow each other, and found
no double jeopardy violation as the two indictments charged
distinct and separate sales made at separate times.
See id. at
302.
The established test for determining whether two
offenses are sufficiently distinguishable to permit
the imposition of cumulative punishment was stated in
Blockburger[], 284 U.S.[at] 304[]:
“The applicable rule is that where the same
act or transaction constitutes a violation
of two distinct statutory provisions, the
test to be applied to determine whether
there are two offenses or only one, is
whether each provision requires proof of an
additional fact which the other does not. .
. .”
29
This test emphasizes the elements of the two crimes.
“If each requires proof of a fact that the other does
not, the Blockburger test is satisfied notwithstanding
a substantial overlap in the proof offered to
establish the crimes . . . .”
Brown v. Ohio, 432 U.S. 161, 166 (1977) (citation omitted).
New
Hampshire law similarly allows for the separate prosecutions of
distinct offenses (here, separate “pattern” AFSAs) even if the
events involve the same individuals interacting during the same
time period.
See State v. Richard, 786 A.2d 876, 880 (N.H.
2001) (finding no error in trial court’s imposition of multiple
punishments for multiple counts where multiple “pattern
indictments charged overlapping time frames, [and] each charged
a particular variant of sexual assault different from the type
charged in the other patterns”).
There is no inconsistency between how the Supreme Court
resolved the double jeopardy claim in Blockburger, and the
decision at issue as to Claim 15.
Here, as in Blockburger, the
challenged indictments did not rely on the same acts to comprise
each charged pattern; one indictment charged multiple instances
of Towle making the victim perform fellatio on Towle and the
other charged multiple instances of Towle performing fellatio on
the victim.
However close in time those acts may have been, and
although they involved the same individuals, the acts were
fundamentally different.
The state court’s decision, finding no
merit in Towle’s double jeopardy claim, is consistent with the
Supreme Court’s holding in Blockburger; is not an unreasonable
30
application of that authority; and is based on reasonable
determinations of facts regarding the scope of the indictments
and the evidence required to prove each charged pattern offense.
Accordingly, Respondent’s motion for summary judgment (Doc. No.
133) is granted as to Claim 15.
C.
Claim 16(b)
In his Petition, Towle asserted the following claim,
which this Court has identified as Claim 16(b):
16. Towle’s Sixth and Fourteenth Amendment rights were
violated when the trial court . . . (b) on the second
day of trial, denied Towle a transcript of []
individual juror voir dire.
Jan. 16, 2018 R&R (Doc. No. 100, at 3) (approved by Feb.
15, 2018 Order (Doc. No. 117)).
Towle raised this claim in
a petition for a writ of habeas corpus filed in the New
Hampshire Superior Court, sitting at Merrimack County
(“MCSC”).
See Oct. 8, 2015 Pet. for Writ of Habeas Corpus,
Towle v. Warden, N.H. State Prison, No. 217-2015-CV-580
(N.H. Super. Ct., Merrimack Cty.) (“State Habeas”) (Doc.
No. 70-1).
The MCSC denied Towle relief, stating:
Petitioner . . . argues his constitutional rights were
further violated when he was denied access to a
transcript of the voir dire conducted in his case.
“[T]he right to a transcript is not absolute." State
v. Thomas, [840 A.2d 803, 806 (N.H.] 2003) (citation
omitted). Rather, the Court looks at whether a
defendant needs a transcript to conduct an effective
defense. See id.
31
[T]he United States Supreme Court [has)
identified two factors that are relevant to
the determination of need: (1) the value of
the transcript to the defendant in
connection with the appeal or trial for
which it is sought, and (2) the availability
of alternative devices that would fulfill
the same functions as a transcript.
Id. [citing Britt v. North Carolina, 404 U.S. 226, 227
(1971)]. “[I]n any case in which an audiotape exists
of the proceeding for which a transcript is sought,
the burden [is] on the defendant requesting the
transcript to review the audiotape to determine the
value to the defendant and to limit the scope of his
request.” Id. (quotation omitted). Here, there is no
evidence Petitioner complied with the requirement to
first review the audiotape of the jury selection
before requesting a transcript. Moreover, during jury
selection, Petitioner chose to be represented by
counsel, who discussed the voir dire bench conferences
with Petitioner both during jury selection and
afterwards. The value of a transcript to him was
minimal. As a result, Petitioner has failed to meet
his burden of proving that he is entitled to the
relief requested in his writ as it relates to his
request for a transcript.
Apr. 14, 2106 Order, State Habeas (Doc. No. 160-1, at 21).
The state court decision cited by the MCSC, Thomas,
840 A.2d 803 (N.H. 2003), referenced the standard for
determining whether a defendant is entitled to a transcript
set forth in Supreme Court’s decision in Britt, 404 U.S. at
227.
See Thomas, 840 A.2d at 806.
Britt is the pertinent
Supreme Court authority under which the state court’s
decision as to Towle’s Claim 16(b) should be evaluated.
The court finds that the MCSC properly applied the
Britt standard to the facts before it in determining that
32
Towle’s due process rights were not violated by the trial
court’s denial of a transcript of jury selection on the
second day of trial.
Further, nothing in the record before
this court suggests that the MCSC unreasonably determined
the facts before it when it denied Towle’s due process
claim.
Accordingly, the court finds that under § 2254(d),
Towle is not entitled to habeas relief as to Claim 16(b),
and the respondent’s motion for summary judgment (Doc. No.
133) is granted as to that claim.
D.
Claims Asserting Ineffective Assistance of Counsel
1.
Ineffective Assistance of Counsel Standard
The Sixth Amendment, which is made applicable to the states
by the Fourteenth Amendment, 10 guarantees a criminal defendant
“the right to the effective assistance of counsel.”
United
States v. Miller, 911 F.3d 638, 641 (1st Cir. 2018) (quoting
Strickland v. Washington, 466 U.S. 668, 686 (1984)).
To assert
an ineffective assistance of counsel claim, “[f]irst, the
defendant must show that counsel’s performance was deficient,”
and “[s]econd, the defendant must show that the deficient
performance prejudiced the defense.”
Strickland, 466 U.S. at
687.
See Walker v. Medeiros, 911 F.3d 629, 631 n.1 (1st Cir. 2018).
33
10
To satisfy the first part of the inquiry, the so-called
performance prong, Towle must show that counsel’s representation
was “outside the wide range of professionally competent
assistance.”
Id. at 690.
To satisfy the prejudice prong, Towle
must show “that ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.’”
Rivera v. Thompson, 879 F.3d 7, 12
(1st Cir. 2018) (quoting Strickland, 466 U.S. at 688).
When reviewing an ineffective assistance claim asserted in
a § 2254 petition, the court must apply a “doubly deferential”
standard of review, which requires the petitioner “to show that
counsel’s performance was objectively unreasonable and that no
reasonable jurist could come to the . . . conclusion the state
court drew [that counsel’s performance was reasonable].”
Lucien
v. Spencer, 871 F.3d 117, 131 (1st Cir. 2017) (emphasis in the
original) (citing Knowles v. Mirzayance, 556 U.S. 111, 123
(2009)); see also Rivera, 879 F.3d at 12.
This “‘doubly
deferential standard of review [which] gives both the state
court and the defense attorney the benefit of the doubt . . . is
an extremely difficult standard to meet.’”
Jaynes v. Mitchell,
824 F.3d 187, 196 (1st Cir. 2016) (citation omitted).
Where, as
here, “a federal habeas petitioner [is] trying to excuse his
procedural default by showing ineffective assistance of counsel
as cause[, he] must first have presented the ineffective
assistance claim to the state court.”
34
Lynch v. Ficco, 438 F.3d
35, 46 (1st Cir. 2006) (citing Edwards v. Carpenter, 529 U.S.
46, 452-53 (2000)).
Additionally, an ineffective assistance of counsel claim
asserted as cause for a procedural default “can itself be
procedurally defaulted.”
Edwards, 529 U.S. at 453.
In order to
assert a procedurally defaulted ineffective assistance of
counsel claim, to demonstrate cause for a procedural default of
another claim, a petitioner must satisfy the cause and prejudice
standard with respect to the ineffective assistance of counsel
claim.
See Costa v. Hall, 673 F.3d 16, 23, 25 (1st Cir. 2012);
Edwards, 529 U.S. at 452.
2.
Claim 12
In his Petition, Towle asserted the following claim which
this court has identified as Claim 12:
12. Towle was denied the effective assistance of
appellate counsel when his appellate attorney: (a)
refused to brief certain issues concerning the denial
of a fair trial, and (b) refused to pursue stronger
issues on appeal.
Aug. 28, 2015 Order (Doc. No. 5, at 4).
In this claim, Towle
asserts that his appellate counsel refused to brief eight of the
ten issues listed in Towle’s April 3, 2013 Notice of Mandatory
Appeal (“NOMA”) (Doc. No. 8-1), despite Towle advising counsel
that he did not want to waive any of his claims, and that he
wanted all of the claims in the NOMA to be briefed on appeal.
35
Towle’s NOMA listed the following issues for appellate
review:
1. Whether the trial court erred when it refused to
sever the charges.
2. Whether the trial court erred when it failed to
dismiss the facially defective indictments.
3. Whether the trial court erred when it failed to
dismiss indictment # 08-S-289 because of a due process
violation.
4. Whether the trial court erred when it failed to
grant the defendant’s requests for a mistrial.
5. Whether the trial court erred when it failed to
grant the defendant’s motion to dismiss because of a
speedy trial violation.
6. Whether the trial court erred when it failed to
grant trial counsel’s request for additional
discovery.
7. Whether the trial court erred by allowing the State
to reference evidence it had deemed inadmissible.
8. Whether the trial court erred by failing to exclude
the testimony of Katie Wilmont.
9. Whether the trial court erred by failing to recuse
itself from these proceedings.
10. Whether the trial court erred when it included a
no contact order with Mr. Towle’s [minor son] who was
not a victim in the case, as part of its sentence.
Apr. 3, 2013 NOMA, Towle Crim. (Doc. No. 8-1).
Towle’s appellate counsel briefed issues two and ten on
direct appeal, as well as the question of whether the trial
court erred in allowing the prosecutor to refresh J.T.’s
recollection, which was not listed in the NOMA.
Counsel
declined to brief the other issues listed in Towle’s NOMA, and
36
further declined to brief two additional issues that Towle had
asked him to brief. 11
After his convictions were affirmed on direct appeal, Towle
filed his MTV II in the trial court, asserting the claim
identified here as Claim 12, and stating that as a result of
appellate counsel’s provision of ineffective assistance of
counsel, Towle’s Sixth and Fourteenth Amendment rights had been
violated.
In its order denying the MTV II, the CCSC examined
Towle’s ineffective assistance of appellate counsel claim under
the Strickland standard, and under the analogous state law
standard, and stated:
The Court finds that the defendant was not denied
effective assistance of appellate counsel. The
defendant contends that he was denied effective
assistance of counsel because his appellate attorney
refused to pursue and brief the issues that the
defendant describes in claims Three through Eleven of
his motion. This Court has already determined that
claims Three through Eleven are without merit.
Consequently, the [New Hampshire] Supreme Court would
have affirmed the defendant’s convictions even if his
appellate attorney had raised and briefed those
issues. Appellate counsel’s failure to present issues
on appeal that would not have succeeded cannot
constitute ineffective assistance of appellate
counsel.
Sept. 30, 2015 Order, Towle Crim. (Doc. No. 9-2, at 5-6).
Showing that a decision not to brief an issue fell below an
objective standard of reasonableness is difficult, because
11Neither
of the two additional issues Towle asked appellate
counsel to brief in his direct appeal are relevant to the
Court’s consideration of any of the claims asserted in Towle’s
Petition.
37
“appellate counsel who files a merits brief need not (and should
not) raise every nonfrivolous claim, but rather may select from
among them in order to maximize the likelihood of success on
appeal.”
Smith v. Robbins, 528 U.S. 259, 288 (2000). 12
Moreover, as to issues not raised, it is generally the case that
“‘only when ignored issues are clearly stronger than those
presented, will the presumption of effective assistance of
counsel be overcome.’”
Id. (citation omitted).
Because the CCSC decided Towle’s ineffective assistance of
appellate counsel claim on its merits, the appropriate standard
of review here is deferential.
Under Strickland, a petitioner
claiming ineffective assistance of counsel must show both that
counsel’s representation fell below an objective standard of
reasonableness, and that prejudice resulted.
at 687-88.
See id., 466 U.S.
In determining that Towle was not denied the
effective assistance of appellate counsel, the CCSC
appropriately applied the Strickland standard, and the court’s
determination that Towle’s Sixth Amendment right to the
effective assistance of counsel had not been violated by
appellate counsel’s refusal to brief nonmeritorious claims was
12In
his state and federal pleadings, Towle relies heavily
on the Supreme Court’s opinion in McClesky v. Zant, 499 U.S. 467
(1991) to support his argument that appellate counsel was
required to investigate and present all viable claims on direct
appeal. McClesky, however, was a pre-AEDPA case that addressed
abuse of the writ of habeas corpus, not ineffective assistance
of appellate counsel. See id. It is, therefore, inapposite.
38
consistent with that standard.
Further, the CCSC did not
unreasonably determine the facts in light of the record before
it, concerning matters relating to Claim 12.
Accordingly, this
court grants Respondent’s motion for summary judgment (Doc. No.
139) as to that claim.
3.
Claim 18
In his Petition Towle asserted the following claim, which
the Court has identified as Claim 18:
18. Towle’s Sixth and Fourteenth Amendment rights were
violated when he was denied the effective assistance
of trial counsel, when counsel: (a) failed to question
prospective jurors concerning their biases, (b) did
not properly utilize peremptory and for-cause
challenges to remove biased jurors from Towle’s jury,
and (c) did not properly raise, and preserve for
appeal, issues concerning jury selection.
Jan. 16, 2018 R&R (Doc. No. 100, at 4) (approved by Feb.
15, 2018 Order (Doc. No. 117)).
Towle raised these claims
in a petition for writ of habeas corpus (Doc. No. 70-1),
filed in the MCSC.
See Oct. 8, 2015 Pet. for Writ of
Habeas Corpus, State Habeas (Doc. No. 70-1).
The MCSC denied the petition, finding that trial
counsel did not render ineffective assistance during jury
selection.
See id., Apr. 14, 2106 Order (Doc. No. 68-1).
Towle appealed that decision.
(Doc. No. 160-1, at 1).
See id., July 14, 2016 NODA
The NHSC declined the appeal.
39
See
Order, Towle v. Warden, N.H. State Prison, No. 2016-0380
(N.H. Sept. 14, 2016) (Doc. No. 67, at 23).
The MCSC’s Order included the following relevant factual
background:
During jury selection, Petitioner employed Attorney
Joseph Fricano to fully represent him with the
understanding that Attorney Fricano’s role would
change to one of stand-by counsel during trial.
During the general questioning to the whole jury panel
in open court, the judge asked:
Are you now, or have you ever been, police
officers or engaged in law enforcement, or a
member of any police commission, or are you in
any way related to persons engaged in law
enforcement activity?
Do you believe the testimony of a police officer
is entitled to more weight or less weight than
the testimony of any other witness because he or
she is a police officer?
Do you know any reason whatsoever why you cannot
sit and hear the evidence in this case and render
a true and honest verdict under your oath,
according to the facts as you find them to be,
and in accordance with the law as the Court will
give it to you?
(Trial Tr. 37:21-38:19, Jan. 11, 2013).
. . .
Attorney Fricano exercised three peremptory challenges
to two jurors for whom he had voiced cause challenges,
Juror Nos. 20 and 54, and one for whom he had voiced
no objection, Juror No. 55. In doing so, Juror No.
65, whom Attorney Fricano had challenged for cause,
remained on the jury.
Juror No. 24[FN 1] was seated on the jury. At the
bench, she revealed that her brother, brother-in-law,
nephew and niece’s husband are or formerly were
members of law enforcement in California, but she
rarely communicates with them. (Trial Tr. 63:6-10.)
40
After she stated she could be fair and impartial, the
trial court found her qualified. (Trial Tr. 63:2125.) Mr. Fricano did not question her at the bench or
challenge her service for cause.
Juror No. 35 also sat on the jury. He advised that he
knew one of the trial witnesses, Det. Karl Nelson. . .
. . .
After Juror No. 55 affirmed he could be fair and
impartial despite the connection, the trial court
found him qualified. (Trial Tr. 75:20-76:6.)
However, Attorney Fricano later used a peremptory
challenge to excuse him.
Attorney Fricano used a second peremptory challenge on
Juror 20, who . . . he had moved to strike . . . for
cause. Juror No. 20 was a sergeant with the Littleton
Police Department and had investigated numerous sex
offenses. (Trial Tr. 67:5-8.)
. . .
Attorney Fricano used a third peremptory challenge on
Juror No. 54, whom the trial court declined to strike
for cause. Juror No. 54 was an elementary school
teacher who had a witness’s granddaughter in her
classroom, but otherwise had no dealings with any
witnesses and indicated the association would not
impact her ability to serve fairly. (Trial Tr. 81:1020.)
. . .
Following jury selection and on the next day of trial,
Petitioner filed a motion for an expedited transcript
of jury selection so he could review the bench
conferences. The trial court held a hearing on his
request.
. . .
During the hearing, Attorney Fricano stated that he
reviewed the entire jury list with Petitioner prior to
jury selection, which would have included some
information as to law enforcement contacts, and that
he also conveyed all the relevant voir dire bench
discussions to Petitioner during the course of jury
41
selection and afterwards. (Tr. Vol. 2, 200:1-19.)
Petitioner also acknowledged that Attorney Fricano
gave him “a summation of what was disclosed at the . .
. bench.” (Tr. Vol. 2, 204:23-205:1.) The trial
court then denied Petitioner’s request for the
transcript. (Tr. Vol. 2, 206:11-12.)
[FN 1:] Juror No. 24 is listed incorrectly as
Juror No. 26 in the trial transcript.
Apr. 14, 2106 Order, State Habeas (Doc. No. 68-1, at 2-9 & n.1).
Applying the two-pronged Strickland standard, the MCSC
concluded that trial counsel had not rendered ineffective
assistance in the ways Towle had alleged.
See id. at 16-17.
Specifically, the MCSC concluded that counsel was not
ineffective for failing to move to excuse Jurors No. 24 and 35
for cause.
See id.
Although Attorney Fricano did not question
Jurors 24 and 35, the court found there was adequate questioning
by the trial judge for Attorney Fricano to assess any concern
about the jurors’ potential biases.
See id. at 19.
With
respect to Attorney Fricano’s exercise of peremptory challenges,
the MCSC found nothing to suggest he did not make reasonably
competent choices between two qualified jurors.
See id.
As the
MCSC noted, “a decision had to be made,” and Towle offered no
evidence demonstrating that Attorney Fricano’s choice to strike
Juror No. 55 was not a reasonable strategic one.
Id.
In his objection to Respondent’s motion for summary
judgment, Towle reargues the claims raised in his state habeas
petition without identifying any errors of fact or law in the
MCSC’s opinion.
See May 30, 2019 Pet’r’s Obj. to Resp’t’s Mot.
42
for Summ. J. (Doc. No. 161, at 31-34).
He has neither suggested
questions Attorney Fricano should have asked, nor offered any
evidence that would have been discovered had more questions been
posed of jurors.
Finally, to the extent Attorney Fricano failed
to preserve these jury issues for appeal, Towle has failed to
demonstrate that there is a reasonable probability that his
appeal would have been successful had these issues been
preserved, raised, and briefed on appeal.
Accordingly, Towle has failed to show that there is no
reasonable basis upon which the court can find “that counsel
satisfied Strickland's deferential standard.”
U.S. at 105.
Harrington, 562
The court finds that the MCSC, in evaluating
Towle’s ineffective assistance claim concerning jury selection,
properly applied the Strickland standard to the evidence.
Further, nothing suggests that the MCSC unreasonably applied the
facts in the record before the state court in reaching its
decision.
Given that, the court is obliged to defer to the
MCSC’s ruling.
Accordingly, the respondent’s motion for summary
judgment is granted as to Claim 18.
IV.
Procedurally Defaulted Claims
A.
Procedural Default Standard
“[A] federal court may not review federal claims that were
procedurally defaulted in state court — that is, claims that the
state court denied based on an adequate and independent state
43
procedural rule,” Davila v. Davis, 137 S. Ct. 2058, 2064 (2017), if that state
procedural rule “is both firmly established and regularly
Logan v. Gelb, 790 F.3d 65, 72 (1st Cir. 2015)).
followed.”
“A state court’s
invocation of a [state] procedural rule to deny a prisoner’s
claims precludes federal review of the claims if, among other
requisites, the state rule is a nonfederal ground adequate to
support the judgment and the rule is firmly established and
consistently followed.”
Martinez v. Ryan, 566 U.S. 1, 9 (2012).
Respondent “bears the burden ‘. . . of persuading the court that
the factual and legal prerequisites of a default . . . are
present.’”
Pike, 492 F.3d at 73 (citation omitted).
A federal court cannot review a procedurally defaulted
claim in a § 2254 petition unless the petitioner demonstrates
either “actual innocence,” or “cause” and “prejudice” for the
default.
Costa, 673 F.3d at 25 (citation omitted); see also
Davila, 137 S. Ct. at 2064-65; Lee v. Corsini, 777 F.3d. 46, 62 (1st Cir.
2015). 14
“A state prisoner may overcome the prohibition on
reviewing procedurally defaulted claims if he can show ‘cause’
to excuse his failure to comply with the state procedural rule
and ‘actual prejudice resulting from the alleged constitutional
violation.’”
Davila, 137 S. Ct. at 2064-65 (citation omitted).
Cause “‘ordinarily turn[s] on whether the prisoner can show that
14Towle
has not asserted an actual innocence claim to
attempt to overcome the procedural default of any claim in this
action.
44
some objective factor external to the defense impeded counsel’s
efforts to comply with the State’s procedural rule.’”
673 F.3d at 26 (citation omitted).
Costa,
To prove prejudice, a
petitioner must demonstrate that the violations of federal law
“worked to his actual and substantial disadvantage, infecting
his entire trial with error of constitutional dimensions.”
(internal quotation marks and citation omitted) (emphasis in
original).
B.
Claims 3 - 11
In his Petition, Towle asserted the following claims,
identified by this Court as Claims 3 – 11:
3. The trial court erred when it refused to sever the
charges for trial.
4. The trial court erred when it failed to dismiss
facially defective indictments, in that: (a)
indictment 08-S-289 did not allege a proper mens rea
element of the charged offense; and (b) indictments
08-S-289, 09-S-96-97, and 09-S-104-07 did not allege
the proper statutory element of the offenses charged
concerning the age of the victim at the time of the
offenses; and (c) indictments 09-S-104-07 improperly
referred to previous indictments charging Towle with
aggravated felonious sexual assault.
5. The trial court erred by failing to exclude the
testimony of Katie Wilmot because the state failed to
provide exculpatory evidence concerning Wilmot’s bias
and motive to lie.
6. The trial court erred when it allowed the
introduction of a photograph of the victim as a child,
although the victim, an adult at the time of trial,
appeared in court and testified, as the photograph had
no evidentiary value and was introduced to inflame the
passions of the jury against Towle.
45
Id.
7. The trial court erred when it failed to grant
Towle’s request for additional discovery concerning
conversations the prosecution had with a prosecution
witness, Katie Wilmot, after the first trial on the
charges, in preparation for the new trial.
8. The trial court erred in failing to recuse itself
after exhibiting bias against Towle by imposing
excessive bail, denying him the right to represent
himself at trial, assisting in the prosecutorial
function by compelling witness testimony against
Towle, making improper evidentiary findings, “being a
witness to [Towle’s] defense,” and exceeding its
statutory authority to deprive Towle of his right to
familial association.
9. The trial court erred when it failed to dismiss the
case when Towle’s right to a speedy trial was
violated.
10. The trial court erred in denying a mistrial on the
basis of prosecutorial misconduct when the state
knowingly and repeatedly elicited false testimony from
witnesses at trial.
11. The trial court erred by allowing sheriff’s
deputies, who were in the courtroom during trial, to
increase in number, and in their proximity to Towle,
creating the impression in front of the jury that
Towle was a dangerous person, to his prejudice, where
no circumstances justified the increase in the number
of deputies or their proximity to Towle.
Aug. 28, 2015 Order (Doc. No. 5, at 2-4).
Respondent contends
that Claims 3 - 11 are all procedurally defaulted.
Petitioner raised Claims 3 – 11 in his MTV II (Doc. No. 91).
The CCSC denied Claims 3 - 11 on procedural grounds,
holding that Petitioner had waived collateral review by failing
to brief those claims on appeal. 15
15The
See Order on MTV II (Doc. No.
court also held that Claims 3 – 11 were without merit.
See Sept. 30, 2015 Order, Towle Crim. (Doc. No. 9-2, at at 3)
46
9-2, at 2-3).
Specifically, the court found that “[b]ecause the
defendant had both knowledge of the issues that he now presents
in claims Three through Eleven and an opportunity to raise those
issues properly in his direct appeal ‘but failed to do so, he
has procedurally waived the issues for collateral review’ in
this proceeding.”
See Sept. 30, 2015 Order, Towle Crim. (Doc.
No. 9-2, at 3).
In its Order denying the MTV II, the CCSC cited Avery v.
Cunningham, 551 A.2d 952, 954-955 (N.H. 1988), abrogated on other grounds, State v.
Pepin, 982 A.2d 364, 366 (N.H. 2009)), for the proposition that Towle’s
failure to assert the issues set forth in Claims 3 – 11 on
appeal, despite his knowledge of those issues and opportunity to
do so “‘procedurally waived the issue[s] for collateral
review.’”
Sept. 30, 2015 Order, Towle Crim. (Doc. No. 9-2, at
3) (quoting Avery, 551 A.2d at 955).
As noted, the rule described in
Avery “is both firmly established and regularly followed” in New
Hampshire. Thurlow v. Warden, N.H. State Prison, No. 16-cv-512-SM, 2019 U.S. Dist. LEXIS 147553, at
*25, 2019 WL 4060914, at *9 (D.N.H. Aug. 13, 2019), R&R approved, 2019 U.S. Dist. LEXIS
146367, at *1, 2019 WL 4060930, at *1 (D.N.H. Aug. 28, 2019), appeal filed sub. nom.,
Thurlow v. Zenk, No. 19-1891 (1st Cir. Sept. 10, 2019); Kepple v.
Unknown Warden, N. N.H. Corr. Facility, No. 10-cv-331-LM, 2011 U.S. Dist. LEXIS 110447, at *33, 2011
WL 4452673, at *12 (D.N.H. Sept. 26, 2011).
Therefore, Towle’s habeas Claims 3
(“[E]ven if the defendant had not waived claims Three through
Eleven for collateral review, the Court rules that those claims
have no merit.”)
47
- 11 are procedurally defaulted.
See Powell v. Tompkins, 783 F.3d 332, 344 (1st
Cir. 2015); Janosky v. St. Amand, 594 F.3d 39, 44 (1st Cir. 2010).
To overcome the
default, Towle must demonstrate both adequate cause for the
default and that he suffered actual prejudice to his defense as
See Berthoff v. United States, 308 F.3d 124, 127-128 (1st Cir. 2000).
a result.
Towle does not address the procedural default argument in
his objection (Doc. No. 158) to the respondent’s summary
judgment motion (Doc. No. 139).
However, in Claim 12 of the
Petition, discussed above, Towle claims he was denied the
effective assistance of appellate counsel when appellate counsel
“(a) refused to brief certain issues concerning the denial of a
fair trial, and (b) refused to pursue stronger issues on
appeal.”
Towle asserts, therefore, that counsel’s refusal to
assert the issues raised in Claims 3 – 11 on appeal is the
“cause” for his procedural default of those claims.
Even if Towle is able to demonstrate that counsel’s refusal
to brief certain claims was the cause of the procedural default
of those claims, he cannot satisfy the prejudice prong of the
“cause and prejudice” analysis.
As explained above, this court
has already determined that the state court found, applying the
appropriate legal standard and reasonably assessing the facts in
the record, that Towle’s appellate counsel was not ineffective
in failing to raise the issues set forth in Claims 3 – 11 on
appeal.
Therefore, both the state court and this Court have
necessarily determined that Towle was not prejudiced by
48
counsel’s refusal to brief those claims.
Because there was no
prejudice to Towle in counsel’s failure to appeal Claims 3 – 11,
he cannot demonstrate cause and prejudice arising from the
default of those claims.
Because Towle has procedurally defaulted Claims 3 – 11 in
the state courts, this Court cannot review those claims.
Davila, 137 S. Ct. at 2064.
See
Accordingly, the respondent’s motion for
summary judgment (Doc. No. 139) is granted as to Claims 3 – 11.
C.
Claims 16(a) and 17
In his Petition, Towle asserted the following claims, which
the Court has identified as Claims 16(a) and 17:
16. Towle’s Sixth and Fourteenth Amendment rights were
violated when the trial court: (a) denied Towle the
right to be present for individual juror voir dire
conducted at the bench during jury selection in his
state criminal case, . . ..
17. Towle’s Sixth and Fourteenth Amendment rights were
violated when the trial court denied Towle an
impartial jury in his state criminal case.
Jan. 16, 2018 R&R (Doc. No. 100, at 3) (approved by Feb.
15, 2018 Order (Doc. No. 117)).
Towle raised these claims
in his petition for a writ of habeas corpus filed in the
MCSC.
See Oct. 8, 2015 Pet. for Writ of Habeas Corpus,
State Habeas (Doc. No. 70-1).
The MCSC denied Towle’s habeas petition, finding, as to the
claim asserted here as Claim 16(a), that Towle had sufficiently
preserved the claim for appellate review, but that “the
49
Petitioner failed to raise it on direct appeal, and therefore is
procedurally barred from raising it for collateral review.”
Apr. 14, 2016 Order, id. (Doc. No. 160-1, at 18).
As to Claim 17,
the court similarly found that Towle’s argument “should have
been raised on direct appeal.”
Id. (Doc. No. 160-1 at 22).
Towle argued in the state habeas court, in an effort to excuse
his default of those claims, that he was unable to timely appeal
his claims concerning jury selection, as he was not in
possession of a transcript of the jury selection until after his
direct appeal had concluded.
See id.
As to that argument, the
MCSC found:
[I]t is clear . . . the transcript would have been
available to [Towle] had he asked his lawyer.
Furthermore, appellate counsel could have expanded the
issues raised in the notice of appeal if he discovered
additional meritorious issues after reviewing the
transcripts. If counsel declined to raise an issue
Mr. Towle believed was meritorious, Mr. Towle could
have sought leave of the court to raise it himself or
proceed pro se. Mr. Towle was well aware that there
were discussions at the bench and generally knew the
relevant content. His failure to timely request a
copy of the transcript from appellate counsel does not
give him leave to supplement his appellate counsel’s
challenges through a collateral attack.
Id.
Given the absence of any factors, external to the defense,
that prevented Towle from obtaining a transcript, Towle cannot
demonstrate that he had “cause” for the procedural default of
his claims identified here as Claims 16(a) and 17.
Because Towle defaulted Claims 16(a) and 17 in the state
courts, on state law grounds, and failed to demonstrate cause
50
for his default, this court cannot review those claims.
Accordingly, the respondent’s motion for summary judgment (Doc.
No. 133) is granted as to Claims 16(a) and 17.
D.
Claim 26
In his Petition, Towle asserted the following claim, which
this Court has identified as Claim 26:
26. Attorney Joseph Fricano, while he was
representing Towle in Towle’s criminal case, violated
Towle’s Sixth Amendment right to the effective
assistance of counsel by failing to preserve the
federal nature of Towle’s claim that the trial court
erred when it refused to sever Towle’s criminal
charges for trial.
June 28, 2018 Order (Doc. No. 127 at 3-4).
Towle raised this
claim in a post-conviction “Motion to Exhaust” filed in the
CCSC.
See Feb. 16, 2018 Def.’s Mot. to Exhaust, Towle Crim.
(Doc. No. 123-1).
The CCSC denied Towle’s claim, stating:
The premise of defendant’s current motion is his
assertion that his trial counsel did not preserve the
“federal nature” of [this] claim[] and that,
consequently, the defendant was denied effective
assistance of counsel as to [this] claim[]. (Def.’s
Mot. to Ex[haust] ¶¶ 6 – 9.) The defendant has not,
however, identified or articulated the alleged federal
constitutional basis or federal nature of any such
claim. The defendant’s unarticulated and undeveloped
arguments do not warrant extended consideration. See
State v Brenes, [846 A.2d 1211, 1213 (N.H. 2004)]
(declining to devote judicial resources to undeveloped
equal protection argument); State v. Blackmer, [816
A.2d 1014, 1016 (N.H. 2003)] (observing that “a mere
laundry list of complaints . . . without developed
legal argument, is insufficient to warrant judicial
review”) (quotations omitted); Keenan v. Fearon, [543
51
A.2d 1379, 1382 (N.H. 1988)] (noting that “off-hand
invocations” of constitutional rights unsupported by
argument or authority warrant “no extended
consideration”).
The CCSC denied Towle’s claim asserted here as Claim 26 on
the basis that it had not been properly presented to that court
under state procedural rules, as it was not articulated and
developed in Towle’s Motion to Exhaust, which, as set forth in
the cases cited by the CCSC in its decision, is a state
procedural rule “adequate to support the judgment” of the CCSC
denying Towle’s motion.
Martinez, 566 U.S. at 9.
Towle has not
made any argument asserting grounds upon which this court could
find there was “cause” and “prejudice” for his procedural
default of Claim 26.
Accordingly, the claim is procedurally
defaulted and may not be reviewed by this court.
For that
reason, the respondent’s motion for summary judgment (Doc. No.
133) is granted as to claim 26.
V.
Claims 20 - 24
Towle’s claims which this Court has identified as Claims 20
– 24 assert challenges related to the jury instructions given in
his criminal trial.
Upon review of the pleadings and the record
in this case, the court finds that it needs additional briefing
on those claims.
Accordingly, the respondent’s motion for
summary judgment is denied as to Claims 20 – 24, without
prejudice.
The court will issue a separate order with
52
instructions to the parties.
The parties should not file any
additional briefing as to Claims 20 – 24 until after the court
orders its instructions.
Conclusion
For the foregoing reasons the court rules as follows:
1.
The respondent’s motion for summary judgment as
to Claims 15 – 27 (Doc. No. 133) is granted in part and
denied in part, as follows:
a.
the motion is granted as to Claims 15 – 19,
and 26;
b.
the motion is denied without prejudice as to
Claims 20-24; and
c.
the motion is denied as moot as to Claims 25
and 27.
2.
The respondent’s motion for summary judgment as
to Claims 1-14 (Doc. No. 139) is granted.
3.
The court will issue a separate order with
briefing instructions as to Claims 20 – 24.
53
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
September 30, 2019
cc:
Robert V. Towle, pro se
Elizabeth C. Woodcock, Esq.
54
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