Blackmer v. Warden, N. NH DOC 05-CV-340-PB 01/28/08 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Paul Blackmer
v. Civil No. 05-CV-340-PB Opinion No. 2008 DNH 017 Warden, Northern New Hampshire Correctional Facility
MEMORANDUM AND ORDER
Paul Blackmer's habeas corpus petition challenges his March
11, 1999 conviction for conspiracy to possess marijuana with
intent to sell. His jailer, the Warden of the Northern New
Hampshire Correctional Facility, has moved for summary judgment.
For the reasons set forth below, I grant the Warden's motion.
I. FACTS AND PROCEDURAL HISTORY
This case has a complex procedural history that encompasses
separate convictions in 1997 and 1999. I describe the facts and
procedural history of each case in turn, focusing in greater
detail on the 1999 conviction because it is the subject of the
current challenge. A. 1997 Conviction
1. Facts
Blackmer was arrested in 1994 after he retrieved packages
containing approximately 50 pounds of marijuana from a United
Parcel Service office in Laconia, New Hampshire.
2. Procedural History
Blackmer was originally indicted in 1994, shortly after his
arrest, but the state dismissed the indictments without prejudice
prior to trial. Blackmer was reindicted in May 1996. On
December 23, 1997, he was convicted after a jury trial of
possession of marijuana with intent to sell and conspiracy to
possess marijuana with intent to sell.
Blackmer's counsel filed a notice of appeal on his behalf
with the New Hampshire Supreme Court. Prior to briefing,
however, Blackmer filed a pro se "Motion to Stay Appeal and
Remand to Resolve Brady Material Answer Issue." In this motion,
Blackmer sought a remand to the superior court so that the state
could be compelled to respond to his contention that one of the
investigating officers, DBA Agent Michael Connolly, committed
perjury before the grand jury that had returned the original
- 2 - indictment.1 The superior court denied Blackmer's motion and
directed him to file his appellate brief. After Blackmer failed
to file a brief, the New Hampshire Supreme Court dismissed his
appeal pursuant to N.H. Supr. C t . R. 16(12).
Blackmer litigated various post-conviction motions in state
court and ultimately filed his habeas corpus petition in this
court on May 29, 2003. On December 9, 2004, I issued a
Memorandum and Order dismissing Blackmer's petition on statute of
limitations grounds. Blackmer v. Warden. 2004 DNH 180.
B. 1999 Conviction
Detective Kenneth May, acting undercover, befriended
Blackmer in December 1995 at the Christmas Island Restaurant in
Laconia, New Hampshire. While in New Hampshire, May and Blackmer
discussed drug trafficking and made plans to travel together to
Mexico to obtain marijuana and transport it back to the East
Coast. Many of their discussions were tape-recorded by Detective
May.
1 I adopt Blackmer's characterization and refer to the state's anticipated response as the "Brady Material Answer."
- 3 - Blackmer alleges that he knew that Detective May was an
undercover policeman and that the police knew that Blackmer was
aware of May's true identity. It is undisputed that Blackmer and
May traveled to California together in January 1996, and that the
two shared a hotel room in California which, unbeknownst to
Blackmer, was paid for with money from the Drug Enforcement
Agency (DEA). May consented to have the room videotaped. It is
undisputed that Blackmer was in contact with a man in Mexico
named Jorge Flores, although Blackmer disputes the state's
allegation that his contact with Flores was for the purpose of
drug trafficking.
At trial. May testified that Blackmer crossed into Mexico to
meet with Flores and that Blackmer devised a plan to pay Flores
$5,000 for marijuana to be smuggled into the United States for
distribution by Blackmer and May. Blackmer disputes these facts.
It is undisputed that before Blackmer obtained any marijuana, he
was arrested in California. Following Blackmer's arrest,
officers seized evidence in a search incident to arrest and later
searched Blackmer's New Hampshire home pursuant to a valid
warrant.
- 4 - 2. Procedural History
A grand jury indicted Blackmer on May 30, 1996 on the charge
of conspiracy to possess marijuana with the intent to sell.2
Trial was originally scheduled for December 1997, but the court
granted Blackmer's motion to continue the trial until January
1998. On January 5, 1998, Blackmer filed a motion to continue
and a motion for new counsel, together with an irrevocable waiver
of his speedy trial rights. The court granted both motions,
appointing new counsel and continuing the trial indefinitely
until new counsel was prepared. The court held a status
conference on the matter on May 26, 1998. At that conference,
Blackmer and his counsel again informed the court that Blackmer
had waived his speedy trial rights. On September 23, 1998, the
court scheduled trial for February 1999, with the parties in
agreement. On January 25, 1999, the court granted the state's
agreed-to motion to continue, and the trial was rescheduled for
March 8, 19 9 9.
A four-day jury trial was held in Belknap County Superior
Court on March 8-11, 1999. Blackmer was found guilty of one
2 The indictment was returned with the indictments that resulted in the 1997 convictions but the two sets of charges were severed for trial.
- 5 - count of conspiracy to possess marijuana with intent to sell in
violation of N.H. Rev. Stat. Ann. §§ 629:3; 318-B:2 (1996). He
was sentenced to six to twenty years in prison.
Blackmer's counsel filed a notice of appeal on his behalf
raising numerous issues. Blackmer, however, filed a pro se
objection seeking to have the appeal held in abeyance until the
state provided the same "Brady Material Answer" that he had been
seeking in his other case. He also instructed his counsel not to
file a brief on his behalf until he received the information he
was seeking from the state. This prompted counsel to file a
motion to withdraw. Blackmer then filed a supplement to the
motion to withdraw asking the court to resolve the issue by
ordering the state to produce the Brady Material Answer.
Instead, the court granted counsel's motion to withdraw.
Blackmer ultimately filed a pro se appellate brief, although the
court never required the state to produce the Brady Material
Answer.
The New Hampshire Supreme Court addressed only three of the
many arguments that Blackmer presented in his appellate brief
because it concluded that his additional arguments either "were
not preserved, were not sufficiently developed for appellate
- 6 - review, or were not raised in his notice of appeal." State v.
Blackmer, 149 N.H. 47, 49 (2003).
The first argument that the court considered was Blackmer's
contention that the state had violated his right to a speedy
trial by failing to provide him with the transcript of Agent
Connolly's 1994 grand jury testimony. The court rejected this
argument both because it determined that the testimony was
irrelevant and because the state had given Blackmer a transcript
of Agent Connolly's testimony in 1997, well before his 1999
trial. I d . at 49.
The court also considered and rejected Blackmer's related
contention that he could not properly brief the speedy trial
issue because the court had denied him his right to appellate
counsel. In reaching this conclusion, the court explained that
it would have been futile to appoint new appellate counsel for
Blackmer because his pro se pleadings made it clear that he would
not allow counsel to file a brief. I d . at 50.
The second issue that the court considered was Blackmer's
argument that he could not be convicted of conspiracy because his
alleged conspirator. Detective May, was a police officer who
never actually intended to possess or sell marijuana. The court
- 7 - rejected this "unilateral conspiracy" argument because it
determined that the New Hampshire conspiracy statute "does not
necessarily require that both parties to the conspiracy possess
criminal intent." Id.
The final issue that the court considered was Blackmer's
contention that he should have been sentenced under Massachusetts
law because the alleged conspiracy involved an agreement to sell
drugs in Massachusetts and the New Hampshire conspiracy statute
provides that the penalty for conspiracy "is the same as that
authorized for the crime that was the object of the conspiracy."
N.H. Rev. Stat. Ann. § 629:3 IV. The court rejected this
argument because it construed New Hampshire conspiracy law to
incorporate the penalty specified by New Hampshire law for the
crime of selling marijuana. Blackmer, 149 N.H. at 50-51. The
court also rejected any potential argument from Blackmer that the
court lacked jurisdiction over him. I d . at 51.
After affirming Blackmer's conviction, the New Hampshire
Supreme Court appointed counsel to represent him on his motion
for reconsideration. Blackmer and his counsel filed separate
motions. Counsel's motion argued that the court should order a
rehearing on the issue of whether a conspiracy involving controlled substances can be formed by a unilateral agreement.
Blackmer's motion argued both that the crime of conspiracy
requires an actual meeting of the minds, not just a unilateral
agreement, and that the state interfered with his right to
effective assistance of counsel on appeal because it refused to
disclose the "Brady Material Answer." Blackmer challenged the
New Hampshire Supreme Court's conclusion that he effectively
chose to proceed pro se, arguing that he "would gladly have
accepted Appellate Defender assistance were that counsel armed
with the ■'delightfully exculpatory Brady Material Answer' as the
law requires." The court denied Blackmer's motion for
reconsideration on March 14, 2003.
Blackmer filed a motion for a new trial in Belknap County
Superior Court on November 17, 2003. Although Blackmer asserted
a variety of claims, the court addressed only two because it held
that his remaining arguments "are nothing more than a rehash of
claims made on prior occasions by him, all of which have been
rejected by this Court." The court denied Blackmer's motion on
December 30, 2003, holding that his claims -- ineffective
assistance of counsel because counsel defended him on a bilateral
- 9 - conspiracy theory rather than a unilateral conspiracy theory3 and
a challenge to the constitutionality of N.H. Rev. Stat. Ann. §
629:3 on vagueness grounds -- were meritless.
Blackmer filed a pro se petition for a writ of habeas corpus
in Merrimack County Superior Court on August 30, 2004. The state
moved to dismiss the petition, addressing each of Blackmer's
claims and arguing for dismissal of some claims on procedural
grounds and others on the merits. The court granted the state's
motion on November 17, 2004 "for the reasons stated in the
motion." The court denied Blackmer's motion for reconsideration
on December 16, 2004.
Blackmer then filed a notice of appeal with the New
Hampshire Supreme Court on January 11, 2005, appealing the denial
of both his habeas petition and his motion for a new trial. On
June 13, 2005, the court declined Blackmer's appeal to the extent
that he challenged denial of his habeas petition and dismissed as
3 A "unilateral" conspiracy is one in which only one party has criminal intent, while a "bilateral" conspiracy is one in which two or more parties have criminal intent. New Hampshire follows the unilateral theory of conspiracy; thus, a person can be convicted of conspiracy for forming an agreement with another party who has no criminal intent and/or is immune from criminal liability, such as an undercover police officer. N.H. Rev. Stat. A n n . § 6 2 9:3.
- 10 - untimely Blackmer's appeal to the extent that he challenged the
denial of his motion for a new trial.
II. STANDARDS OF REVIEW
A. Summary Judgment
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). A party seeking summary judgment must first identify the
absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the
nonmoving party to "produce evidence on which a reasonable finder
of fact, under the appropriate proof burden, could base a verdict
for it; if that party cannot produce such evidence, the motion
must be granted." Avala-Gerena v. Bristol Mvers-Sauibb Co.. 95
F.3d 86, 94 (1st Cir. 1996); see Celotex. 477 U.S. at 323.
B. AEDPA
I evaluate Blackmer's claims in accordance with the Anti-
Terrorism and Effective Death Penalty Act ("AEDPA"). Under
- 11 - AEDPA, a federal court has the power to grant a writ of habeas
corpus for a state prisoner who is being held in violation of the
U.S. Constitution or federal law, subject to several
restrictions. 28 U.S.C. § 2241(c). First, under AEDPA, an
application for a writ of habeas corpus cannot be granted with
respect to a claim that was adjudicated on the merits in state
court unless adjudication of the claim "(I) resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States; or (2) 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).
AEDPA's "contrary to" and "unreasonable application"
provisions have independent meaning and must be read separately.
Williams v. Tavlor, 529 U.S. 362, 405 (2000). A state court
decision can be "contrary to" established Supreme Court precedent
if either the state court reaches a conclusion on a question of
law opposite to that reached by the Supreme Court, or a state
court "confronts a set of facts that are materially
indistinguishable" from relevant Supreme Court precedent and
- 12 - reaches an opposite result. I d . at 405-06. A state court
decision is an "unreasonable application" of Supreme Court
precedent if the state court "identifies the correct governing
legal rule from this Court's cases but unreasonably applies it to
the facts" of a prisoner's case, or if "the state court either
unreasonably extends a legal principle from our precedent to a
new context where it should not apply or unreasonably refuses to
extend that principle to a new context where it should apply."
I d . at 40 7.
As the Supreme Court recently held, "The question under
AEDPA is not whether a federal court believes the state court's
determination was incorrect but whether that determination was
unreasonable - a substantially higher threshold." Schriro v.
Landriqan. 127 S.Ct. 1933, 1939 (2007). Determinations of fact
made by the state court are presumed to be correct; the
petitioner has the burden of rebutting this presumption of
correctness by clear and convincing evidence. 28 U.S.C. §
2254(e)(1); Schriro. 127 S.Ct. at 1940.
A federal court has no power to grant a writ of habeas
corpus for a prisoner who is held pursuant to a state court
judgment that rests on an independent and adequate state ground.
- 13 - Coleman v. Thompson, 501 U.S. 722, 730 (1991). To do so would
render the state rule ineffective and "ignore[] the State's
legitimate reasons for holding the prisoner." Id. A
consistently applied and regularly enforced state procedural rule
that causes a prisoner's federal claims to be procedurally
defaulted can serve as an independent and adequate state ground.
When application of an independent and adequate state procedural
rule results in procedural default on a petitioner's federal
claims, "federal habeas review of the claims is barred unless the
prisoner can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice." I d . at 750; see also
Wainwriqht v. Svkes, 433 U.S. 72, 87 (1977)(applying the cause
and prejudice standard for procedurally defaulted claims); Lynch
v. Ficco. 438 F.3d 35, 43 (1st Cir. 2006).
Finally, a federal court ordinarily cannot grant a writ of
habeas corpus on a state prisoner's behalf unless the prisoner
has exhausted the remedies available in state court prior to
bringing a federal habeas corpus petition. 28 U.S.C. §
2254(b)(1). Numerous federal courts have held, however, that
- 14 - the exhaustion requirement is satisfied if remand to state court
would prove futile because the claims would be procedurally
barred under state procedural rules. See Allen v. Attorney Gen.
of Maine. 80 F.3d 569, 573 (1st Cir. 1996); see, e.g.. Lines v.
Larkins, 208 F.3d 153, 160 (3d Cir. 2000); Bailey v. Nagle. 172
F.3d 1299, 1302 (11th Cir. 1999); Doctor v. Walters. 96 F.3d 675,
681 (3d Cir. 1996). Therefore, if remand for exhaustion would be
futile with respect to the unexhausted claims, I may consider
those claims procedurally defaulted.
Ill. ANALYSIS
Blackmer presents nineteen overlapping grounds for relief
that fall into six distinct categories.4 I analyze his arguments
with respect to each category of claims in turn.
A. Speedy Trial
Blackmer claims that the state violated his Sixth Amendment
right to a speedy trial (grounds 3 and 14). He alleges that the
delay was caused by prosecutorial misconduct, namely, the state's
failure to turn over the "Brady Material Answer."
4 I resolved Blackmer's additional claims in a prior order (Doc. No. 40) approving the Magistrate Judge's Report and Recommendation (Doc. No. 35).
- 15 - Blackmer first asserted his speedy trial claim in a motion
to dismiss. The court summarily denied this motion prior to
trial and provided further explanation of its reasoning in an
order dated March 24, 1999. The court concluded that the
Connolly testimony (the subject of the "Brady Material Answer")
was irrelevant to the charges because Connolly provided the
testimony in 1994 and the conduct giving rise to the conviction
at issue did not occur until late 1995. The court further noted
that Blackmer himself caused most of the delay prior to trial.
The New Hampshire Supreme Court addressed this claim on
direct appeal, holding both that Connolly's testimony was
irrelevant to the 1999 conviction and that, in any event, the
state gave Blackmer a copy of Connolly's grand jury testimony in
1997. To the extent that Blackmer claimed that he was entitled
to the Brady Material Answer prior to trial, the court also held
that Connolly's testimony was irrelevant even if it was
perjurious. Examining the record and giving deference to the
factual findings of the state court, I cannot say that the state
court's adjudication of this issue resulted in a judgment that
was contrary to or involved an unreasonable application of
federal law. Moreover, there is no indication that the state
- 16 - court based its decision on an unreasonable determination of the
facts. Accordingly, the Warden is entitled to summary judgment
with respect to grounds 3 and 14.
B. Unilateral Conspiracy
Blackmer next presents a series of arguments that are
premised on his contention that the state prosecuted him on a
unilateral conspiracy theory. The New Hampshire Supreme Court
rejected his core claim that state law does not permit a
conspirator to be convicted of a unilateral conspiracy.
Blackmer, 149 N.H. at 50. In an effort to salvage something from
this argument, Blackmer asserts in a conclusory fashion both that
the state conspiracy statute is unconstitutionally vague (grounds
1 and 4) and that the trial court's jury instructions improperly
permitted the jury to convict him of participating in a
unilateral conspiracy (ground 17). Both arguments are obviously
without merit. Finally, Blackmer asserts that his counsel was
ineffective because he based Blackmer's defense on the incorrect
premise that a person could not be convicted of participating in
a unilateral conspiracy (grounds 1, 2, 22, 23). The Merrimack
County Superior Court properly rejected this argument when it
granted the state's motion to dismiss Blackmer's habeas corpus
- 17 - petition. Accordingly, the Warden's motion for summary judgment
is granted with respect to grounds 1, 2, 4, 17, 22 and 23.
C. Prosecutorial Misconduct
Blackmer next presents several claims that the state
committed prosecutorial misconduct. His principal argument
(ground 7) is that the state improperly failed to produce the
Brady Material Answer. The New Hampshire Supreme Court addressed
this issue in disposing of Blackmer's speedy trial claim when the
court reasonably determined that the information Blackmer was
seeking was irrelevant to his 1999 conviction. Blackmer, 149
N.H. at 49-50. The state's alleged failure to produce irrelevant
information cannot serve as the basis for a Bradv violation.
United States v. Connolly. 504 F.3d 206, 212 (1st Cir. 2007).
Accordingly, this claim necessarily fails. To the extent that
Blackmer argues that the state interfered with his right to
counsel by refusing to produce the Brady Material Answer (ground
16), this argument also fails because the state is under no
obligation to produce irrelevant information.
The New Hampshire Supreme Court resolved Blackmer's
additional claims that the state improperly failed to produce a
memorandum from witness Jane Young (ground 6) and the identity of
- 18 - Grafton County Deputy Sheriff, Kenneth May, (ground 9) on
independent and adequate state law grounds. Blackmer raised both
arguments in a cursory way in his appellate brief but not in his
notice of appeal. The court declined to address these arguments
as well as several others on the ground that the arguments "were
review or were not raised in his notice of appeal." Blackmer,
149 N.H. at 49. Blackmer has failed to establish either cause or
prejudice for his failure to properly litigate these claims in
state court and he has also failed to demonstrate that failure to
review this claim will result in a fundamental miscarriage of
justice. Accordingly, the Warden's motion for summary judgment
is granted with respect to grounds 6, 7, 9 and 16.
D. Right to Counsel
Blackmer presents several claims that the state denied him
his Sixth Amendment right to counsel. His principal claim in
this area is that the New Hampshire Supreme Court improperly
denied him his right to counsel on appeal (grounds 10 and 15).
The Supreme Court explained in its order resolving Blackmer's
appeal that it declined to appoint new counsel after it allowed
his first appellate counsel to withdraw because it determined
- 19 - that such an appointment would be futile given Blackmer's
unwillingness to allow counsel to file a brief on his behalf
until the state produced the Brady Material Answer. I d . at 50.
The state court's finding on this point was reasonable under the
circumstances. Accordingly, Blackmer's right to appellate
counsel claims fail because he forfeited his right to counsel on
appeal.
Blackmer also argues that the court violated his right to
counsel by refusing to appoint counsel to represent him with
respect to his motion for new trial (ground 25). This argument
fails because a defendant does not have a Sixth Amendment right
to counsel with respect to a state post-conviction proceeding.
Pennsylvania v. Finley. 481 U.S. 551, 556-57 (1987).
Blackmer also alleges that the trial court interfered with
his right to effective assistance of counsel when it ordered
counsel to file a notice of appeal that was inadequate because
Blackmer had not yet received the Brady Material Answer (ground
19). This claim is meritless because, as discussed above, the
New Hampshire Supreme Court ruled that the Brady Material Answer
is irrelevant to Blackmer's charges. See Blackmer, 149 N.H. at
49-50 .
- 20 - Blackmer further argues that the trial court interfered with
his right to effective assistance of counsel when it denied
counsel's motion for a mistrial after a witness mis-stated the
fact that marijuana had been found in Blackmer's home when, in
fact, the vegetative matter found in Blackmer's home was never
confirmed by chemical testing to be marijuana (ground 24). Even
if Blackmer could characterize this as a Sixth Amendment claim,
Blackmer can demonstrate no prejudice resulting from the trial
court's denial of counsel's motion for a mistrial because the
court required the prosecutor to cure the witness's mistake by
eliciting a clarification from the witness, in front of the jury,
that the matter found in Blackmer's home was never chemically
analyzed or confirmed to be marijuana. Accordingly, the Warden's
motion for summary judgment is granted with respect to grounds
10, 15, 19, 24 and 25.
E. Eighth Amendment Claim
Blackmer claims that the punishment he received in this case
violates his Eighth Amendment right to be free from cruel and
unusual punishment (ground 12). This argument was never
litigated in state court, but it would be futile to require
exhaustion both because it is evident under the circumstances
- 21 - that the state courts would deem the claim to be procedurally
defaulted and because the claim is obviously meritless in any
event. Accordingly, the Warden's motion for summary judgment is
granted with respect to ground 12.
F. Defective Indictment Claim
Blackmer claims that the state obtained his conviction by a
defective indictment in violation of his Fifth Amendment due
process rights (ground 11). Blackmer attempted to raise this
claim on direct appeal, but the New Hampshire Supreme Court
declined to consider it on procedural grounds because it was
either not preserved, not sufficiently developed for appellate
review, or not raised in the notice of appeal. Blackmer, 149
N.H. at 49. Thus, the state court adjudication of this claim
rests on independent and adequate state grounds.
Blackmer has failed to establish either cause or prejudice
with respect to his procedural default on this claim, and he has
failed to demonstrate that this claim will result in a
fundamental miscarriage of justice. Accordingly, the Warden's
motion for summary judgment is granted with respect to ground 11.
- 22 - IV. CONCLUSION
For the reasons set forth in this Memorandum and Order, the
Warden's motion for summary judgment (Doc. No. 64) is granted.
The Clerk is directed to enter judgment accordingly.
SO ORDERED.
/s/Paul Barbadoro_______ Paul Barbadoro United States District Judge
January 28, 2008
cc: Paul Blackmer, pro se Elizabeth Baker, Esq.
- 23 -