Hart v. NH State Prison, Warden

Filing 57

///ORDER granting 52 Motion for Summary Judgment. For the foregoing reasons, as well as those set forth by the State in its legal memoranda (documents no. 52-1 and 56), Respondent's Motion for Summary Judgment (document no. 52) is granted. Hart's Amended Petition for Writ of Habeas (document no. 40) is denied. The court declines to issue a certificate of appealability. The Clerk of Court shall enter judgment in accordance with this order and close the case. So Ordered by Judge Steven J. McAuliffe.(lw)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Kenneth Hart,
Petitioner
v.

Case No. 18-cv-424-SM
Opinion No. 2020 DNH 076

Warden, N.H. State Prison,
Respondent
O R D E R

More than 20 years ago, in February of 2000, Kenneth Hart
was convicted in state court of two counts of aggravated
felonious sexual assault (rape), witness tampering, and
resisting arrest.

He was sentenced to serve 10 to 20 years in

prison on the sexual assault convictions, with suspended
sentences on the remaining convictions.

In this federal habeas

corpus petition, Hart asserts that he is entitled to “relief
from his wrongful conviction” on grounds that: (1) he was not
competent to stand trial; and (2) when he elected to represent
himself at trial, he did not knowingly, voluntarily, and
intelligently waive his right to be represented by legal
counsel.

Case 1:18-cv-00424-SM Document 57 Filed 05/05/20 Page 2 of 34

Pending before the court is respondent’s motion for summary
judgment.

For the reasons discussed, that motion is granted and

Hart’s Amended Petition for Habeas Corpus Relief is denied.

Background
Since his incarceration, Hart’s mental illness has been
well-documented.

Indeed, there were suggestions of that illness

even before his trial.

When Hart dismissed his third court-appointed attorney and
notified the trial court of his intention to represent himself,
the court ordered a mental status evaluation to assess his
“current competency to stand trial and particularly his ability
to clearly and effectively waive his constitutional right to
counsel.”

Superior Court Order dated March 17, 1999 (document

no. 40-2) at 5.

Hart was evaluated by Dr. Albert Drukteinis.

On July 21, 1999, the trial court held a competency hearing, at
which Dr. Drukteinis testified.
Hearing (document no. 40-3).

See Transcript of Competency

Among other things, Dr. Drukteinis

testified that:
1.

He conducted a formal evaluation of Hart, which
included a routine psychiatric interview, a
mental status examination, a cognitive capacity
examination, and a “competency-to-understandtrial” assessment. Id. at 7.

2

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2.

On the mental status exam, Hart was not agitated,
nor did he show any unusual motor behavior; there
was no sign he was hallucinating, nor that he had
any delusions; he had some paranoid thinking,
reflected by a “vague sort of mistrust about lots
of people;” he was “oriented and he did not
appear to be suffering from any brain diseases as
such.” Id at 9-10.

3.

On the cognitive capacity screening, Hart was
well oriented and displayed good memory; “His
calculations were good, basic abstract thinking
was good. He could become distractible at times,
but again nothing to suggest that he was
psychotically disorganized;” Id. at 11.

4.

On the competency to stand trial assessment, Hart
“was well aware of his charges and he could
discuss a number of them in detail;” he
understood the charges against him were serious;
he understood that he could not be compelled to
testify at trial; he had not decided whether he
would testify because he still wanted to discuss
that issue with stand-by counsel; he understood
the role of various participants in the trial witnesses, defense counsel, prosecutor, and
judge; “he was quite detailed and accurate in all
of that;” he spoke of dissatisfaction with two
prior attorneys because they did not challenge
probable cause sufficiently at earlier hearings;
“in general, as criminal defendants go that I’ve
evaluated, he answered ninety-nine percent of the
questions very well.” Id. at 12-15.

5.

As for a clinical diagnosis of Mr. Hart, Dr.
Drukteinis opined that: “Mr. Hart has no signs of
an acute psychotic illness. He’s not
disoriented, he’s not deranged, he’s in contact
with reality and there’s nothing patently absurd
about his thinking process. I do think that
there is some evidence of paranoid personality
traits and some grandiosity;” he likely suffers
from a nonspecific kind of personality disorder
that does “not rise to the level of a major
mental illness that should prevent him from being
competent to stand trial.” Id. at 16-17.

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6.

Based upon his evaluation of Mr. Hart, Dr.
Drukteinis opined that: Hart “is competent to
stand trial;” and “could rationally work with his
attorney and rationally follow the proceedings.”
Id. at 17-18.

Following that hearing, the trial court concluded that Hart
was competent to stand trial.

Id. at 42.

See also Superior

Court Order dated July 21, 1999 (document no. 40-4).

Nevertheless, the trial court recognized that additional
inquiry was required before it could grant Hart’s motion to
waive his constitutionally protected right to counsel.

See,

e.g., Godinez v. Moran, 509 U.S. 389, 402 (1993) (“[W]hen a
defendant seeks to waive his right to counsel, a determination
that he is competent to stand trial is not enough; the waiver
must also be intelligent and voluntary before it can be
accepted.”).

Accordingly, the court held an additional hearing

on Hart’s motion to waive his right to counsel and to represent
himself at trial.

Because it is central to Hart’s habeas

claims, the colloquy probably bears recounting in some detail:
THE COURT: Mr. Hart, still wish to proceed pro se in
this matter; is that correct?
MR. HART: Good morning, Judge.
THE COURT: Good morning.
MR. HART: Yes, I’m prepared to proceed pro se.
THE COURT: That’s what you want to do?
MR. HART: That’s what I want to do.

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THE COURT: You understand you have the absolute right
under the federal and state constitutions to be
represented by counsel?
MR. HART: I do understand that right.
THE COURT: And even though you can’t afford your own
counsel the state appoints one for you; you understand
that?
MR. HART: I understand that as well.
THE COURT: I just want to be clear, understanding all
of this and understanding the absolute right you have
to counsel, it is your desire not to have counsel, to
waive your right to counsel and to proceed to
represent yourself? I just want to be very clear
about that.
MR. HART: Yes, that’s correct, it is my right and it
is my knowing and intelligent opinion to waive counsel
and to proceed pro se.
THE COURT: Okay. Now, it is incumbent upon me under
the law -- well, you understand, Mr. Hart, that now –
we’re dealing here with - what is the maximum penalty,
ten to twenty on these, counsel?
MS. O’NEIL: That’s right.
THE COURT: There’s a maximum sentence on each one of
these charges of not less than ten years nor more than
-- not more than ten years to twenty years on each one
of these charges. If you were found guilty you could
be sentenced to that imprisonment term on each one of
them consecutive; do you understand that?
MR. HART: I understand that there’s a maximum penalty,
yes.
THE COURT: And you understand that as representing
yourself you are going to be required to follow the
Rules of Evidence, follow the rules of court, many
things which take lawyers years and years to
understand, and quite frankly some of them still don’t
understand them? Do you understand that you are going
to have to pick a jury?
MR. HART: Yes.
THE COURT: That you are going to have to examine
witnesses on direct and cross-examination?
MR. HART: Yes.
THE COURT: You are going to have to make an opening
statement to the jury, you are going to have to make a
closing argument; do you understand all of these
things that you are going to have to do?
MR. HART: I understand I’ll have to do all the things
that a licensed attorney would have to do.
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THE COURT: Those aren’t easy things, Mr. Hart.
MR. HART: I don’t think they are easy at all.
THE COURT: Do you also understand that I can’t treat
you any differently than if you were represented by a
lawyer; in other words, I can’t kind of help you out
or give you breaks, or anything like that; do you
understand that?
MR. HART: Yes.
THE COURT: Okay. I can’t cut you any slack, I guess is
what I'm trying to tell you.
MR. HART: I will be allowed the advantages and the
authority of being a licensed attorney?
THE COURT: Pardon?
MR. HART: I will be allowed . . .
THE COURT: I’m going to give you standby counsel;
okay?
MR. HART: I’ll ask the question again, then. I’ll be
allowed the advantages and the authority of a licensed
attorney?
THE COURT: You will be allowed to do all the things in
this courtroom that a licensed attorney could do,
yeah, I mean if that’s -- if I understand your
question properly.
MR. HART: So then any type of legal research and
defense tools I will also be allowed those?
THE COURT: Well, to the extent I would grant them to
any client you will be allowed them. When we start
getting into matters about use of the law library and
everything while you are incarcerated that always
creates problems and we will deal with those
accordingly.
But one thing I guess that I think - I know you
understand this because I know you have gone over this
with Judge Barry as well before - but when you
represent yourself, I mean this is you are emotionally
involved in your case, obviously, because it deals
with you.
MR. HART: That’s right.
THE COURT: And one of the things about a lawyer is
that a lawyer is always able to be, hopefully,
objective and dispassionate and therefore could look
at things clearly without making decisions that, you
know, may be affected by his personal involvement in
the case; whereas you representing yourself, you know,
you’ve got to deal with your own emotional involvement
in the case and to the extent it can cloud your
complete objectivity. I mean you understand you at
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least have to deal with that problem if you are going
to represent yourself, you understand that?
MR. HART: I do understand. I have no clouded
misunderstanding at this time.
Hearing on Motion to Proceed Pro Se (document no. 40-5) at 3-9
(emphasis suppled).

After conducting that colloquy with Hart

(and, having already concluded that he was competent to stand
trial), the trial court determined that Hart understood his
constitutional right to counsel and that he knowingly,
intelligently, and voluntarily waived that right.
THE COURT: All right. Well, based on your sincere and
apparently unwavering desire to waive your right to
counsel and represent yourself, and based on the fact
that you do appear to understand the pitfalls of
representing yourself and what is going to be expected
of you, I will let you proceed pro se in this matter.
I will appoint a standby counsel so that you will have
someone who can assist you in and advise you as to
procedures, and things of that nature, as I guess you
already have been working with Mr. Pendleton on that
kind of a basis for a while.
MR. HART: Yes; that’s correct.
THE COURT: So he’ll be there to help you out when you
need someone to help you do something, he will be
there for you.
Id. at 8-9.

See also Superior Court Order dated August 31, 1999

(document no. 40-6) (concluding that “the defendant has
knowingly, intelligently and voluntarily waived his right to
counsel. . . . [He] is aware of the serious nature of the
charges against him, the potential sentence which may be
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imposed, the complex factual and legal issues presented by this
case, and the serious limitations in acting as his own counsel.
Nonetheless, the defendant insists on representing himself, and
his request to proceed pro se is GRANTED.”).

While the court

allowed Hart to represent himself, it also appointed standby
counsel to assist him.

Following an eight-day trial in January and February of
2000, a jury convicted Hart on all charges (evidence of his
guilt was overwhelming).

Although Hart apparently considered

filing an appeal to the New Hampshire Supreme Court, he never
did so.

On February 28, 2001 (more than a year after his

convictions and after receiving numerous extensions of the time
within which to file an appeal), Hart still had not filed either
a notice of appeal or a request for the appointment of appellate
counsel.

Consequently, the New Hampshire Supreme Court declared

his right of appeal had been waived.

In January of 2017 – nearly seventeen years after his
convictions - Hart filed a petition for writ of habeas corpus in
the trial court.

In that petition, Hart raised two issues,

claiming that: (a) he did not knowingly, intelligently, and
voluntarily waive his right to counsel as protected by the Sixth
and Fourteenth Amendments to the Constitution; and (b) he was
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not competent to represent himself at trial because the state
and federal constitutions require “a higher level of minimum
competence to represent oneself at trial than to be competent to
stand trial.”

Superior Court Order dated October 2, 2017

(document no. 40-8) at 49 of 52.

That petition was denied.

See

Id.

Hart appealed to the New Hampshire Supreme Court, advancing
the same two claims.

Because Hart had already served his entire

prison sentence by the time his petition came before the New
Hampshire Supreme Court, the court construed his petition as one
seeking coram nobis relief. 1

The court then described Hart’s

first argument as follows:
Because the petitioner’s claim is based upon the
Edwards decision, and thus relies upon an
interpretation of the Federal Constitution by the
United States Supreme Court, we begin by first
addressing his argument that the Federal Constitution
mandates a higher minimum standard of competency for
defendants who seek to represent themselves at trial
than the minimum standard of competency to stand trial
with the assistance of counsel. . . . [H]e maintains
that, in the wake of the Edwards decision, a higher
standard of competency is required, as a matter of
federal law, to afford a mentally ill defendant the
In or around 2018, Hart was released from prison. Shortly
before his release, however, it was determined that, due to his
mental illness, Hart posed “a potentially serious likelihood of
danger to himself and others.” Accordingly, on August 30, 2018,
he was involuntarily committed to New Hampshire Hospital. See
Involuntary Admission Order (document no. 40-13).
1

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right to exercise his or her constitutional right to
self-representation.
Hart v. Warden, N.H. State Prison, 171 N.H. 709, 719 (2019).
The court considered, and rejected, Hart’s claim under both the
state and federal constitutions.

The court also considered and

rejected Hart’s second claim: that, due to his mental illness,
he failed to knowingly, voluntarily, and intelligently waive his
right to counsel and, therefore, the trial court erred by
permitting him to represent himself at trial.

Meanwhile (before he was released from custody), on May 22,
2018, Hart filed a federal petition for habeas corpus relief
under 28 U.S.C. § 2254.

By prior order, the court denied,

without prejudice, the State’s motion to dismiss Hart’s petition
on grounds that it was untimely.

See Order dated December 6,

2019 (document no. 51).

Currently pending before the court is the State’s motion
for summary judgment.

The State asserts that, in resolving

Hart’s federal constitutional claims, the New Hampshire Supreme
Court neither misapprehended the factual record nor misapplied
clearly established Supreme Court precedent.

Moreover, says the

State, any assertion that Hart was not competent to stand trial
was waived in both the state post-conviction (habeas) court and
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on appeal to the New Hampshire Supreme Court (recall that Hart’s
claim before those state courts was that he was not competent to
represent himself at trial).

Hart objects.

Standard of Review
Since passage of the Anti-Terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) and its amendments to 28 U.S.C.
§ 2254, the power to grant federal habeas relief to a state
prisoner with respect to claims adjudicated on the merits in
state court has been substantially limited.

A federal court may

not disturb a state conviction unless one of two conditions is
satisfied.

The first is met when the state court’s adjudication

of the petitioner’s federal constitutional claims “resulted in a
decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.”

28 U.S.C. § 2254(d)(2).

A habeas petitioner

seeking relief under that provision faces a substantial burden
insofar as “a determination of a factual issue made by a State
court shall be presumed to be correct.”

28 U.S.C. § 2254(e)(1).

Alternatively, habeas relief may be granted if the state
court’s resolution of the federal constitutional issues before
it “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.”
11

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U.S.C. § 2254(d)(1).

The Supreme Court explained the

distinction between decisions that are “contrary to” clearly
established federal law, and those that involve an “unreasonable
application” of that law as follows:
Under the “contrary to” clause, a federal habeas court
may grant the writ if the state court arrives at a
conclusion opposite to that reached by [the Supreme]
Court on a question of law or if the state court
decides a case differently than [the Supreme] Court
has on a set of materially indistinguishable facts.
Under the “unreasonable application” clause, a federal
habeas court may grant the writ if the state court
identifies the correct governing legal principle from
[the Supreme] Court’s decisions but unreasonably
applies that principle to the facts of the prisoner’s
case.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000).

The Court also

noted that an “incorrect” application of federal law is not
necessarily an “unreasonable” one.
[T]he most important point is that an unreasonable
application of federal law is different from an
incorrect application of federal law . . . . Under
§ 2254(d)(1)’s “unreasonable application” clause,
then, a federal habeas court may not issue the writ
simply because that court concludes in its independent
judgment that the relevant state-court decision
applied clearly established federal law erroneously or
incorrectly. Rather, that application must also be
unreasonable.
Id. at 410-11 (emphasis in original).

Finally, it probably

bears noting that a state court need not rely upon, nor need it
even cite, Supreme Court precedent in order to avoid resolving a
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petitioner’s claims in a way that is “contrary to” or that
involves an “unreasonable application of” clearly established
federal law.

See Early v. Packer, 537 U.S. 3, 8 (2002)

(“Avoiding these pitfalls does not require citation of our cases
- indeed, it does not even require awareness of our cases, so
long as neither the reasoning nor the result of the state-court
decision contradicts them.”) (emphasis in original).

So, to prevail, the habeas petitioner must demonstrate that
“the state court’s ruling on the claim being presented in
federal court was so lacking in justification that there was an
error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.”
Richter, 562 U.S. 86, 103 (2011).

Harrington v.

In short, “Section 2254(d)

reflects the view that habeas corpus is a guard against extreme
malfunctions in the state criminal justice systems, not a
substitute for ordinary error correction through appeal.”
at 102-03 (citation and internal punctuation omitted).

Id.

As the

Harrington Court noted, AEDPA’s amendments to section 2254(d)
present a substantial hurdle for those seeking habeas relief and
impose upon this court a highly deferential standard of review.
If this standard is difficult to meet, that is because
it was meant to be. As amended by AEDPA, § 2254(d)
stops short of imposing a complete bar on federalcourt relitigation of claims already rejected in state
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proceedings. It preserves authority to issue the writ
in cases where there is no possibility fairminded
jurists could disagree that the state court’s decision
conflicts with this Court’s precedents. It goes no
further.
Harrington, 562 U.S. at 102 (citation omitted).

Only as to federal claims that were presented to the state
court but neither adjudicated on the merits nor dismissed by
operation of a regularly-applied state procedural rule, may this
court apply the more petitioner-friendly de novo standard of
review.

See, e.g., Clements v. Clarke, 592 F.3d 45, 52 (1st

Cir. 2010) (“In contrast, a state court decision that does not
address the federal claim on the merits falls beyond the ambit
of AEDPA.

When presented with such unadjudicated claims, the

habeas court reviews them de novo.”) (citation omitted).
Finally, it is probably worth noting that “unadjudicated claims”
are different from claims that were resolved on the merits, but
without any explanation.

See generally Wilson v. Sellers, 138

S.Ct. 1188, 1192 (2018) (“[W]hen the relevant state-court
decision on the merits, say, a state supreme court decision,
does not come accompanied with [the court’s] reasons . . . .
[w]e hold that the federal court should ‘look through’ the
unexplained decision to the last related state-court decision

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that does provide a relevant rationale.”) (emphasis supplied).
See also Ylst v. Nunnemaker, 501 U.S. 797 (1991).

With those principles in mind, the court turns to Hart’s
petition and the State’s motion for summary judgment.

Discussion
I.

Claims Properly Before the Court.
The court necessarily begins by noting that it is unclear

what federal claims Hart is asserting in his habeas petition.
As noted above, his claims before both the state superior
(habeas) court and the New Hampshire Supreme Court were
consistent and unambiguous.

First, he asserted that he did not

knowingly, intelligently, and voluntarily waive his right to
counsel as protected by the Sixth and Fourteenth Amendments to
the Constitution.

Second, he claimed he was not competent to

represent himself at trial because the state and federal
constitutions require a higher level of minimum competence to
represent oneself at trial than is required merely to stand
trial with the assistance of counsel.

That is to say, Hart

asserted that the competence to stand trial of a defendant who
plans to represent himself must be measured by a higher standard
than the one used to assess the competence of a defendant who is
represented by counsel.

In support of that claim, Hart relied
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upon the Supreme Court’s opinion in Indiana v. Edwards, 554 U.S.
164 (2008).

The state habeas court and the New Hampshire

Supreme Court addressed, and rejected, both of Hart’s claims on
the merits.

In his pending federal petition, however, Hart jettisons
the second claim (i.e., the “higher standard of competence” for
pro se defendants) and substitutes a more traditional claim:
that he was not competent to stand trial.

See Amended Petition

for Habeas Relief (document no. 40) at 17 (“The petitioner was
not competent to stand trial at the time of his trial and
therefore his conviction on these charges violates the Due
Process Clause of the United States Constitution”).

That,

however, creates a problem because never before has Hart
challenged the trial court’s finding that he was competent to
stand trial.

Indeed, the New Hampshire Supreme Court

specifically noted that Hart did not challenge the trial court’s
finding that he was competent to stand trial.
We note that the petitioner does not dispute that he
was found competent to stand trial beyond a reasonable
doubt. Nor does the petitioner challenge either
Drukteinis’ conclusions or the trial court’s findings
as to his competency. Instead, he maintains that, in
the wake of the Edwards decision, a higher standard of
competency is required, as a matter of federal law, to
afford a mentally ill defendant the right to exercise
his or her constitutional right to selfrepresentation.
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Hart v. Warden, 171 N.H. at 719 (emphasis supplied).

The

evidence on that point is unambiguous and overwhelming.

See,

e.g., Superior Court Order Denying Writ of Habeas Corpus
(document no. 40-8) at 51 of 52 (“[P]etitioner does not contest
he possessed the minimum standard of competence to stand
trial.”); Hart’s Notice of Appeal to N.H. Supreme Court
(document no. 44-1) at 7 (“In May of 2017, counsel filed an
amended habeas petition.

Without challenging the ruling that

Hart had been competent to stand trial, the petition advanced
claims that Hart had not been competent to represent himself at
trial, or competent to waive his right to counsel.”) (emphasis
supplied); Hart’s Brief to the N.H. Supreme Court (document no.
40-8) at 7 of 52 (“Question presented: whether the [trial] court
erred in denying Hart’s petition for habeas corpus either
because he was not competent to represent himself, or because
the record does not establish that he knowingly waived his right
to counsel.”) (emphasis supplied).

Indeed, even Hart’s

memorandum in opposition to the State’s motion for summary
judgment in this proceeding acknowledges that “Hart raised two
claims in state court: (1) he was not competent to represent
himself at trial, and (2) he did not knowingly, intelligently
and voluntarily waive his right to counsel.”

17

Petitioner’s

Case 1:18-cv-00424-SM Document 57 Filed 05/05/20 Page 18 of 34

Opposition Memorandum (document no. 55-1), at 7 (emphasis
supplied).

Hart failed to “fairly” and “recognizably” present to the
state habeas courts any claim that he was not competent to stand
trial (hence their failure to address such a claim).

See

generally Picard v. Connor, 404 U.S. 270, 275 (1971); Jackson v.
Coalter, 337 F.3d 74, 87 (1st Cir. 2003); Barresi v. Maloney,
296 F.3d 48, 51 (1st Cir. 2002).

His assertion that such a

challenge was somehow implicitly subsumed within his claim that
he was not competent to represent himself at trial is without
merit.

See, e.g., Hart’s Appellate Brief to N.H. Supreme Court

(document no. 40-8) (focusing exclusively on Hart’s competence
to represent himself).

Consequently, any claim that he was not

competent to stand trial has not been exhausted and is not
properly before this court.

See 28 U.S.C. § 2254(b)(1)(A)

(providing that only after exhausting the remedies available in
state court may a petitioner seek federal habeas relief).

And,

because Hart did not raise that claim either in a direct appeal
of his convictions or in his collateral (state habeas) attack
upon those convictions, the state courts would deem the claim
waived and procedurally defaulted.

See, e.g., Douglas v.

Douglas, 143 N.H. 419, 429 (1999) (an argument not raised, or
insufficiently briefed, is deemed waived and will not be
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addressed); State v. Chick, 141 N.H. 503, 504 (1996) (same).
See generally Pike v. Guarino, 492 F.3d 61, 73 (1st Cir. 2007)
(“A habeas claim is procedurally defaulted in either of two
situations.

First, a claim is procedurally defaulted if the

state court has denied relief on that claim on independent and
adequate state procedural grounds.

Second, a claim is

procedurally defaulted if it was not presented to the state
courts and it is clear that those courts would have held the
claim procedurally barred.”) (citations omitted).

Moreover, even if Hart had moved this court to stay these
proceedings while he pursued a (seemingly futile) effort to
exhaust that claim before the state courts (he has,
understandably, not sought such relief), the court would be
disinclined to grant it.

See Rhines v. Weber, 544 U.S. 269,

277-78 (2005) (cautioning courts to stay federal habeas
petitions to allow state court exhaustion “only in limited
circumstances,” when the petitioner demonstrates “good cause for
his failure to exhaust, his unexhausted claims are potentially
meritorious, and there is no indication that the petitioner
engaged in intentionally dilatory litigation tactics”).

Here,

Hart’s decision not to raise the issue in the state courts was
obviously a deliberate one, made with the assistance of counsel.
Consequently, it is difficult to imagine how he would show “good
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cause” for that failure.

Moreover, as discussed below, that

claim is not “potentially meritorious.”

Finally, the court notes that even if that claim had been
properly exhausted, and even if the court were to address that
claim, and even if it were to apply the more petitioner-friendly
de novo standard of review, the trial court’s ruling that Hart
was competent to stand trial would stand.

The only expert to

examine Hart, and the only expert to testify about Hart’s mental
condition and abilities, unequivocally stated that, “My opinion
is that he is competent to stand trial.”

Testimony of Dr.

Albert Drukteinis, Transcript of Competency Hearing (document
no. 40-3) at 17.

The trial court’s decision, based upon the

uncontroverted record, was amply supported by the evidence and
the trial court properly (and reasonably) applied United States
Supreme Court precedent in reaching its conclusion that Hart was
competent to stand trial.

See generally Dusky v. United States,

362 U.S. 402 (1960); Drope v. Missouri, 420 U.S. 162 (1975).

Despite the confusion arising from Hart’s filings, and in
an effort to give him the benefit of the doubt, the court will
assume that he is challenging the two claims actually presented
to, but rejected by, the New Hampshire Supreme Court (i.e.,
those claims he has properly exhausted).
20

That is, the court

Case 1:18-cv-00424-SM Document 57 Filed 05/05/20 Page 21 of 34

will assume Hart is challenging the New Hampshire Supreme
Court’s conclusions that: (a) he “understood the implications of
waiving his right to counsel and knowingly, intelligently, and
voluntarily waived his right to counsel,” Hart v. Warden, 171
N.H. at 727; and (b) the United States Constitution does not
mandate a heightened standard of competency for a defendant who
wishes to represent himself, id. at 720-21.

II.

Waiver of Right to Counsel.
In Faretta v. California, 422 U.S. 806 (1975), the Supreme

Court recognized that the Sixth Amendment implicitly guarantees
a criminal defendant the right to defend him or herself.
819-20.

Id. at

As a consequence, the Court held that a state cannot

impose counsel upon a defendant who has knowingly and
voluntarily elected to proceed pro se.

See Id. at 834 (“It is

the defendant, therefore, who must be free personally to decide
whether in his particular case counsel is to his advantage.

And

although he may conduct his own defense ultimately to his own
detriment, his choice must be honored out of that respect for
the individual which is the lifeblood of the law.”) (citation
and internal punctuation omitted).

The Court went on to hold

that, because a pro se defendant “relinquishes many of the
traditional benefits associated with the right to counsel, . . .
he should be made aware of the dangers and disadvantages of
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self-representation, so that the record will establish that he
knows what he is doing and his choice is made with eyes open.”
Id. at 835 (citations and internal punctuation omitted).

But,

once a defendant clearly and unequivocally invokes his right of
self-representation and demonstrates that his election to
proceed without the assistance of counsel has been made
knowingly and voluntarily, that election must be honored

Id. at

836.

Here, as noted above, the trial court insured that Hart’s
waiver of his right to counsel and corresponding invocation of
his constitutionally protected right of self-representation met
all of those requirements.

In reviewing Hart’s constitutional

challenge to the trial court’s decision, the New Hampshire
Supreme Court plainly understood and applied the governing
federal law, as articulated by the United States Supreme Court:
We examine the validity of a defendant’s decision to
waive counsel at the time made and upon evidence
produced during the trial court’s colloquy with a pro
se defendant to determine whether the defendant
clearly and unequivocally expressed his desire to
self-represent, understood the consequences, and
knowingly and intelligently chose to waive his right
to counsel.
Hart v. Warden, 171 N.H. at 727 (emphasis supplied).

The court

applied that law to the facts presented and reasonably concluded

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that, “[u]pon review of the record of the trial court’s colloquy
with the petitioner, we agree with the habeas court’s finding
and, thus, the trial court’s conclusion, that the petitioner
understood the implications of waiving his right to counsel and
knowingly, intelligently, and voluntarily waived his right to
counsel.”

Id.

Hart’s criticisms of the New Hampshire Supreme Court’s
decision are unavailing.

First, he says that he was somehow

“misled” by the trial court’s alleged representations that it
would “assist him in getting the tools necessary for him [to]
defend himself at trial.”
15.

Amended Petition for Habeas Relief at

But see Hearing on Motion to Proceed Pro Se (document no.

40-5) at 6 (“THE COURT: Do you also understand that I can’t
treat you any differently than if you were represented by a
lawyer; in other words, I can’t kind of help you out or give you
breaks, or anything like that; do you understand that?
HART: Yes.

MR.

THE COURT: Okay. I can’t cut you any slack, I guess

is what I'm trying to tell you.”). According to Hart, the trial
court failed to follow through on its “assurance” that it would
assist him “getting access to the tools he needed to defend
himself.”

Consequently, he claims his waiver of the right to

counsel was not an informed one – that is, his reliance upon

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allegedly false assurances by the trial court precluded his
waiver from being a “knowing” one.

In support of that argument, Hart points to the transcript
of day one of his trial.
at para. 55.

See Amended Petition for Habeas Corpus

On that day (January 24, 2000), immediately before

jury selection, Hart moved for a continuance.

He claimed the

Hillsborough County House of Corrections had “taken pencils from
[him] for the entire month of December” (there is no mention of
his access to pencils for the month of January, nor is there an
explanation for why Hart failed to raise the issue earlier).
Trial Transcript, Day One (document no. 40-7) at 28.

As a

result, said Hart, he was unable to file a number of motions
with the trial court.

The trial court patiently entertained

Hart’s argument and plausibly concluded that Hart had not been
prejudiced.

Indeed, the court noted that it had previously

addressed that (and similar) complaints from Hart “a zillion
times.”

Id.

Hart was fully aware of – and repeatedly reminded

of – the difficulties that he would face while trying to prepare
a defense from jail.
trial court.

He was not misled on that point by the

See, e.g., Hearing on Motion to Proceed Pro Se

(document no. 40-5) at 7 (“When we start getting into matters
about use of the law library and everything while you are

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incarcerated, that always creates problems and we will deal with
those accordingly.”).

Hart’s claim that alleged misrepresentations by the trial
court undermine his waiver of counsel, rendering it something
less than knowing and voluntary, are without merit.
court did not “mislead” Hart.

The trial

More to the point, however, the

New Hampshire Supreme Court’s rejection of that claim did not
rest upon an unreasonable determination of the facts, nor did it
result in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law. 2
Next, says Hart, his waiver of counsel was not knowing,
intelligent, and voluntary because he was not competent to waive
such a vital constitutional right.

In support of that claim,

Hart points to the testimony of Dr. Drukteinis, the court
appointed psychiatrist who examined him.

According to Hart, Dr.

Drukteinis testified that Hart was not capable of knowingly and
voluntarily waiving his right to counsel.
para. 56.

Amended Petition at

But, that is not a fair summary of Dr. Drukteinis’s

As the State correctly notes, to the extent Hart is
asserting that his alleged lack of access to resources necessary
to prepare his case – like, pens and paper – somehow stands as
an independent violation of his constitutional due process
rights, such a claim has never been presented to the state
courts and is unexhausted. As noted above, Hart has pursued and
exhausted only two federal constitutional claims in his
collateral attacks on his convictions.
2

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testimony.

Dr. Drukteinis made two basic points: first, he

stated that, in his opinion, “the competency or ability to
defend one’s self pro se is a higher threshold to being able to
stand trial.”

Transcript of Competency Hearing (document no.

40-3) at 18.

That view of the law is, as discussed below, not

entirely correct.

Next, Dr. Drukteinis opined that Hart’s “tendency to get
into peripheral matters and tangential matters [would] really
hurt his own defense” and, for that reason, Hart likely failed
to fully appreciate how difficult it would be to represent
himself.

Id. (emphasis supplied).

See also id. at 27 (opining

that Hart would “be seriously hampered defending himself pro se”
by his inability to stay focused on the essential elements of
his arguments).

Perhaps the essence of Dr. Drukteinis’s

testimony on this point was best captured in this exchange with
the trial court:
THE COURT: If I understand you correctly in the sense
that he’s competent to waive his right to counsel, it
is just that like any pro se counsel he might, no
matter how much we tell him, he might not understand
how difficult it is to be his own lawyer?
THE WITNESS: I think it might be a little more than
that. I think [Mr. Hart] understands his right to
have counsel, that he has a right to that counsel, and
he would be waiving that, but I don’t think he
understands how his own abilities, coupled with his
paranoid thinking are going to prevent him from doing
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anything close to what needs to be done [to present an
adequate defense].”
Id. at 30.

But, the inquiry into whether a criminal defendant

has knowingly and voluntarily waived his right to counsel (and
thereby invoked his constitutionally protected right of selfrepresentation) does not involve an assessment of how well the
defendant might actually perform in court.

Nor does it involve

an assessment of how his physical, emotional, intellectual, or
mental health limitations might render him less capable than an
attorney (or even another pro se defendant) in presenting an
effective defense.

That he would be better served by appointed

counsel (as is nearly always the case) does not render the
exercise of his right of self-representation either involuntary
or unknowing.
In Faretta, we held that a defendant choosing selfrepresentation must do so “competently and
intelligently,” but we made it clear that the
defendant’s “technical legal knowledge” is “not
relevant” to the determination whether he is competent
to waive his right to counsel, and we emphasized that
although the defendant “may conduct his own defense
ultimately to his own detriment, his choice must be
honored.” Thus, while “[i]t is undeniable that in
most criminal prosecutions defendants could better
defend with counsel’s guidance than by their own
unskilled efforts,” a criminal defendant’s ability to
represent himself has no bearing upon his competence
to choose self-representation.

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Godinez v. Moran, 509 U.S. 389, 399-400 (1993) (citations
omitted; emphasis in original).

Pro se criminal defendants

rarely fully appreciate how their own limited legal abilities
will preclude them from presenting the type of defense that a
capable lawyer could mount – indeed, they often (mistakenly)
believe that they can present a better defense than trained
legal counsel.

Yet, that misapprehension does not invalidate an

otherwise proper invocation of the constitutionally protected
right of self-representation.
In short, Hart’s arguments lack merit.

But, more

importantly, the New Hampshire Supreme Court’s determination
that Hart properly waived his right to counsel cannot be said to
have been “based on an unreasonable determination of the facts
in light of the evidence presented in the State court
proceeding.”

28 U.S.C. § 2254(d)(2).

Nor can that court’s

reasoning be said to have “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.”

28 U.S.C. § 2254(d)(1).

III. Heighten Standard of Competency for Pro Se Defendants.
To the extent Hart still presses his argument (as advanced
before the New Hampshire Supreme Court) that the decision in

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Indiana v. Edwards, 554 U.S. 164 (2008), mandates application of
a higher standard of competency to a defendant who wishes to
represent himself, that argument also fails.

In Edwards, the

Court considered whether a state could deny a “gray-area”
defendant the constitutional right to represent himself (here,
of course, Hart was permitted to exercise that right).

The

Court defined so-called “gray-area” defendants as those who are
competent to stand trial but likely fall short of the “somewhat
higher standard that measures mental fitness for another legal
purpose.”

Id. at 172.

Thus, the question before the Edwards

Court was this:
We assume that a criminal defendant has sufficient
mental competence to stand trial (i.e., the defendant
meets Dusky’s standard) and that the defendant insists
on representing himself during that trial. We ask
whether the Constitution permits a State to limit that
defendant’s self-representation right by insisting
upon representation by counsel at trial — on the
ground that the defendant lacks the mental capacity to
conduct his trial defense unless represented.
Id. at 174 (emphasis supplied).

The Court answered that

question in the affirmative, holding that:
the Constitution permits judges to take realistic
account of the particular defendant’s mental
capacities by asking whether a defendant who seeks to
conduct his own defense at trial is mentally competent
to do so. That is to say, the Constitution permits
States to insist upon representation by counsel for
those competent enough to stand trial under Dusky but
who still suffer from severe mental illness to the
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point where they are not competent to conduct trial
proceedings by themselves.
Id. at 177-78 (emphasis supplied).

In other words, state courts

may impose counsel on certain “gray area” defendants without
violating those defendants’ constitutionally protected right of
self-representation.

Before the New Hampshire Supreme Court, Hart asserted that,
“in the wake of the Edwards decision, a higher standard of
competency is required, as a matter of federal law, to afford a
mentally ill defendant the right to exercise his or her
constitutional right to self-representation.”
171 N.H. at 719.

Hart v. Warden,

That is, Hart claimed that, despite his

otherwise valid invocation of his right of self-representation,
the trial court was constitutionally compelled to deny him that
right and impose upon him, against his expressed wishes, the
assistance of appointed counsel.

According to Hart, the trial

court’s failure to overrule his clearly-expressed desire to
represent himself violated the United States Constitution.

In addressing Hart’s claim, the New Hampshire Supreme Court
recognized that Edwards created a permissive rule that allows
(but does not compel) states to insist that so-called “gray
area” defendants be represented by counsel.
30

Moreover, it noted

Case 1:18-cv-00424-SM Document 57 Filed 05/05/20 Page 31 of 34

that Hart’s interpretation/extension of Edwards was unsupported
by precedent:
Even if the petitioner fell within the “gray area” of
competency contemplated by Edwards, he cites no
federal authority, and we cannot find any federal
support, for his proposition that a heightened
standard of competency must be applied such that trial
courts are required to force representation upon “gray
area” defendants at trial. Because no such
requirement exists under federal law, the petitioner's
claim based upon the Federal Constitution cannot be
sustained.
Id. at 721 (citation omitted).

The New Hampshire Supreme Court properly rejected Hart’s
assertion that the Constitution (as interpreted by the Edwards
Court) required the trial court to reject Hart’s otherwise valid
invocation of his right of self-representation and to impose
trial counsel upon him against his will.

In reaching that

conclusion, the New Hampshire Supreme Court neither
misapprehended the factual record nor misapplied clearly
established Supreme Court precedent.

See 28 U.S.C. § 2254(d).

Conclusion
For the reasons set forth in the State’s motion to dismiss
(document no. 44), Hart’s federal habeas corpus petition is
likely untimely.

Hart’s conviction became “final” in February

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of 2001.

At that point, he had one year within which to file

his federal habeas petition.

See 28 U.S.C. § 2244(d)(1)

(establishing a one-year limitations period for habeas petitions
filed by individuals in state custody).

He did not file the

pending petition until May of 2018 – more than seventeen years
later.

For that petition to have been timely filed, Hart would

have to demonstrate that his mental illness was so acute that it
severely impaired his ability to effectively pursue legal relief
on his own behalf for a continuous and uninterrupted period of
roughly fifteen years.

Given his extensive litigation history

in both state and federal courts during many of those years, it
is unlikely he could sustain that burden.

Nevertheless, even

assuming Hart’s petition is timely, he cannot prevail on the
merits.

In his post-trial collateral challenge to his convictions,
Hart presented two legal arguments to the New Hampshire Supreme
Court: (a) that he did not validly waive his constitutionally
protected right to representation by legal counsel; and (b) that
“the Federal Constitution mandates a higher minimum standard of
competency for defendants who seek to represent themselves at
trial than the minimum standard of competency to stand trial
with the assistance of counsel.”
719.

Hart v. Warden, 171 N.H. at

The court rejected both of those claims on the merits.
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That decision was not the product of an “unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding,” 28 U.S.C. § 2254(d)(2), nor was
that decision contrary to, nor did it involve an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States,”

28 U.S.C. §

2254(d)(1).

For the foregoing reasons, as well as those set forth by
the State in its legal memoranda (documents no. 52-1 and 56),
Respondent’s Motion for Summary Judgment (document no. 52) is
granted.

Hart’s Amended Petition for Writ of Habeas (document

no. 40) is denied.

The Clerk of Court shall enter judgment in

accordance with this order and close the case.

Because Hart has not “made a substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), the
court declines to issue a certificate of appealability.

Hart

may, however, seek such a certificate from the court of appeals
under Federal Rule of Appellate Procedure 22(b).

See Rule 11,

Federal Rules Governing Section 2254 Cases (2010); 28 U.S.C. §
2253(c).

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SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
May 5, 2020
cc:

Donna J. Brown, Esq.
Elizabeth C. Woodcock, Esq.

34