Cole v. Warden, NHSP

2001 DNH 145

• Court: District Court, D. New Hampshire
• Decided: August 7, 2001
• Docket: CV-00-296-B
• Status: Published

Opinion

Cole v. Warden, NHSP CV-00-296-B 08/07/01 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Alexander Cole

Civil No. 00-296-B .Opinion No. 2001 DNH 145 Warden, NH State Prison

MEMORANDUM AND ORDER

Alexander Cole raises three groups of claims in his habeas

corpus petition: (1) claims based on the alleged insufficiency

of the evidence; (2) claims based on alleged misconduct by the

prosecution; and (3) claims that his trial counsel was

ineffective. The Warden has challenged the petition in a motion

for summary judgment. I address the Warden's challenge to each

category of claims in turn.

A. Sufficiency of the Evidence Claims

The Supreme Court has held that where a habeas corpus

petitioner who has been convicted in state court fails to

properly preserve a claim by complying with state procedural

requirements, he is not entitled to have his claim reviewed in federal court unless he either satisfies the familiar "cause and

prejudice" standard or demonstrates that a failure to address the

merits of his claim will result in a miscarriage of justice. See

Edwards v. Carpenter, 529 U.S. 446, 451 (2000). While the

ineffective assistance of counsel may satisfy the "cause"

requirement of the cause and prejudice test, the ineffective

assistance of counsel claim must itself have been properly

presented in state court. See i d . at 453.

Cole presented his sufficiency of the evidence claims to the

state court in a motion for a new trial but failed to challenge

the court's rejection of his claims in his notice of appeal.

Because New Hampshire has a firmly established rule that claims

raised in the trial court are forfeited unless they are included

in the notice of appeal, see State v. Jackson, 144 N.H. 115, 118

(1999), Cole's failure to raise his sufficiency of the evidence

arguments in his notice of appeal bars me from reviewing his

claims unless he can satisfy either the cause and prejudice test

or the miscarriage of justice test. The only possible "cause"

for Cole's failure to include his insufficiency of the evidence

claims in his notice of appeal is that his counsel was

ineffective.

-2- Because Cole failed to raise this ineffective assistance claim in

state court, however, he cannot rely on it to satisfy the "cause"

prong of the cause and prejudice test. Further, given the

substantial evidence presented at trial demonstrating Cole's

guilt, he also cannot satisfy the miscarriage of justice test.

Accordingly, I grant defendant's motion for summary judgment with

respect to these claims.

B. Prosecutorial Misconduct Claims

Cole next alleges that he is entitled to a new trial because

the state: (1) denied him an opportunity to take a deposition

from the victim; (2) failed to take a written statement from the

victim; (3) denied Cole his right to confront the victim at a

probable cause hearing; and (4) failed to produce a copy of a

videotaped statement that the police took from the victim.1

With respect to the first three of these claims, the record

demonstrates that Cole was aware of his potential claims prior to

trial, but he took no action to litigate them either in the trial

court or on direct appeal. Further, he cannot claim that his

1 Cole also claims that the state knowingly offered false testimony on the issue of identity. He waived any claim concerning the issue of identity, however, during proceedings regarding his motion for a new trial.

-3- failure to preserve the claims was the fault of his counsel

because he failed to raise this ineffective assistance of counsel

claim on appeal in state court. Nor can Cole claim the benefit

of the miscarriage of justice exception because, for the reasons

set forth in the Warden's summary judgment motion, his claims

simply have no merit.

Cole also is not entitled to relief with respect to his

claim that the state engaged in prosecutorial misconduct because

it lost or destroyed the victim's videotaped statement.

In order to establish a claim that the state violated Cole's

constitutional rights by losing or destroying evidence, he must

demonstrate that the state: "(1) acted in bad faith when it

destroyed evidence, which (2) possessed an apparent exculpatory

value and which (3) is to some extent unreplaceable." United

States v. Dumas, 207 F.3d 11, 15 (1st Cir. 2000). The state

court judge who reviewed Cole's case found that the state did not

act either in bad faith or negligently when it lost the videotape

of the victim's interview. I have no reason to question this

finding. Thus, Cole cannot succeed with his prosecutorial

misconduct claims.

-4- C. Ineffective Assistance of Counsel Claims

The Warden has filed a detailed memorandum demonstrating

that Cole cannot succeed on his ineffective assistance of counsel

claims because he procedurally defaulted certain claims and the

remaining claims have no merit. I agree with the Warden's

analysis. Thus, I grant the Warden's motion for summary judgment

with respect to these issues.

CONCLUSION

For the reasons set forth in this order, I grant the

Warden's motion for summary judgment, (doc. no. 14).

SO ORDERED.

Paul Barbadoro Chief Judge

August 7, 2001

cc: Alexander Cole, pro se N. William Delker, Esq.

-5-