UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Daniel Perez
v. Civil No. 19-cv-372-JD Opinion No. 2020 DNH 183 Warden, New Hampshire State Prison
O R D E R
Daniel Perez, proceeding pro se, seeks a writ of habeas
corpus under 28 U.S.C. § 2254. In support, he contends that,
during his criminal trial in state court, evidence was used
against him in violation of his Miranda1 rights, that the court
should have disclosed additional information that was reviewed
in camera, and that the court illegally changed his sentence.
The Warden moves for summary judgment on Perez’s claims. Perez
did not file a response to the motion.
Standard of Review
A court shall grant a writ of habeas corpus under § 2254
“only on the ground that [the petitioner] is in custody in
violation of the Constitution or laws or treaties of the United
States.” § 2254(a). As long as the claim was adjudicated on
the merits in state court, the writ cannot be granted based on a
1 Miranda v. Arizona, 384 U.S. 436 (1966). legal or factual error, and instead the court applies a
deferential standard. Gomes v. Silva, 958 F.3d 12, 19 (1st Cir.
2020). When a claim was properly presented to the state court
but not adjudicated on the merits, this court reviews the claim
under the de novo standard instead of the deferential review
provided under § 2254(d). Clements v. Clarke, 592 F.3d 45, 52
(1st Cir. 2010); Fortini v. Murphy, 257 F.3d 39, 47 (1t Cir.
2001).
A claim is adjudicated on the merits if the claim was
decided on the substance presented, rather than on a procedural
ground, and the decision has res judicata effect. Linton v.
Saba, 812 F.3d 112, 122 (1st Cir. 2016). Further, a claim is
adjudicated on the merits, although the decision is “framed in
terms of state law . . . as long as the state and federal issues
are for all practical purposes synonymous and the state standard
is at least as protective of the defendant’s rights as its
federal counterpart.” Id.
Under the deferential standard, a writ may be granted when
the state court’s adjudication of the petitioner’s federal
constitutional claims “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.” § 2254(d)(1). Alternatively, a writ may be
2 granted if the adjudication “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.”
§ 2254(d)(2). For purposes of that showing, “a determination of
a factual issue made by a State court shall be presumed to be
correct.” § 2254(e)(1).
A petition for a writ of habeas corpus under § 2254
ordinarily is decided based on the existing record. A hearing
will be held only in limited circumstances. § 2254(e)(2);
Jackson v. Marshall, 864 F.3d 1, 14 (1st Cir. 2017). Those
circumstances have not been shown to exist here, and therefore a
hearing was not held.
Background
The background facts are taken from the transcript of the
hearing on Perez’s motion to suppress, document no. 13 filed
conventionally; the New Hampshire Supreme Court’s decision,
State v. Perez, Case No. 2016-0271, 2017 WL 4341420 (N.H. Aug.
1, 2017); exhibits filed by Perez with the petition, document
no. 1, and documents filed by the Warden with the answer,
document no. 12.
When the events leading to his arrest occurred, Perez was
staying with his girlfriend and her children. His girlfriend’s
3 ten-year-old daughter, “Y”, accused him of sexually assaulting
her and provided accounts of sexual assault by Perez during an
interview at the Child Advocacy Center. Salem Police Detective
Geha investigated the allegations of sexual assault.
Geha called Perez on June 24, 2014, to arrange to speak
with him and asked Perez to come to the police station. Once
there, Perez was taken to an interview room. Detective Ryan
Sambataro joined them. Geha talked to Perez in English, and
Perez had no trouble understanding him. Perez also responded in
English, in complete sentences, and Geha had no trouble
understanding him. Although Geha can speak Spanish, he saw no
need to conduct the interview in Spanish.
Geha told Perez he was free to leave at any time. Geha
read the five rights stated on a Miranda form to Perez, line by
line, asking Perez if he understood each right as he read it,
and Perez responded that he did. Geha did not read the waiver
section of the form.2 Geha asked Perez if he were willing to
talk with him about the allegations of sexual assault. Perez
said he was and signed the waiver section of the form.
2 During the suppression hearing, an issue arose as to whether Geha remembered giving Perez the Miranda form to let him read the waiver section himself. The judge noted that it was a poorly documented interview. Whether or not Geha remembered giving the form to Perez for him to read the waiver section, it is undisputed that Perez signed the waiver, which shows that he was given the form and saw the waiver.
4 To begin the interview, Geha told Perez that Y had accused
him of touching her genitals, her chest, and her buttocks.
Perez responded by saying that he did not remember. Sambataro
left the interview room, and Geha continued the interview.
As the interview progressed, Perez seemed more comfortable.
After an hour to an hour and a half, Perez admitted that Y was
telling the truth. Geha then asked Perez if he could turn on
the recording equipment, and Perez agreed. Geha again asked
Perez, during the recorded part of the interview, if he
understood his rights, and Perez answered that he did.
Before his criminal trial, Perez moved to suppress the
statements he made to Detectives Geha. In support, he argued
that he did not knowingly, intelligently, and voluntarily waive
his Miranda rights. He argued that he had limited education and
a learning disability but did not present evidence to establish
those facts. The trial court denied the motion. Perez’s
statements to Geha were introduced into evidence at trial.
Although Perez did not testify during the suppression
hearing, he did testify at trial. There, Perez testified that
he could not read or write well and then said that he did not
know how to read. He testified that he told Geha that he could
not read, but Geha told him to sign the Miranda form anyway.
5 Perez was convicted on one count of aggravated felonious
sexual assault, one count of attempted aggravated felonious
sexual assault, and three counts of felonious sexual assault.
He was sentenced to three and a half to ten years in prison on
each charge of felonious sexual assault, to be served
concurrently. His sentence on attempted aggravated felonious
sexual assault was suspended.
On appeal, Perez argued that although Geha carefully read
the Miranda rights and determined that Perez understood them, he
did not read the waiver of rights section or determine that
Perez understood the waiver of his Miranda rights. He also
argued that the trial court erred in failing to disclose
documents that were reviewed by the court in camera. The New
Hampshire Supreme Court “address[ed] the suppression issued
under the State Constitution and rel[ied] upon federal law only
to aid [the] analysis.” Perez, 2017 WL 4341420, at *2. It
addressed the issue of in camera review under the state law
standard. Id. The trial court’s decision was affirmed.
The state filed an application for review of Perez’s
sentence. On January 2, 2019, the sentencing review board
increased Perez’s sentences to seven and a half to fifteen years
in prison on the felonious sexual assault charges, to be served
concurrently, and did not change the sentence on attempted
6 aggravated felonious sexual assault. His petition to the New
Hampshire Supreme Court for a writ of certiorari was denied on
May 3, 2019.
Perez filed his habeas petition in this court on April 11,
2019. On preliminary review and after amendment, the court
allowed the following claims:
(1) Statements he made to the Salem police were used against him, after his motion to suppress was denied, although he did not make a knowing, intelligent, and voluntary waiver of his Miranda rights.
(2) The trial court reviewed potentially exculpatory confidential information in camera but did not disclose it.
(3) The superior court illegally changed Perez’s sentence.
See Docs. nos. 7, 9, and 10.
The Warden moved to have this court review, in camera, the
documents that are the subject of Perez’s claim number 2. The
motion was granted. Doc. no. 15. Those documents were sent to
the court by the clerk of court of the Rockingham County
Superior Court and were docketed, under seal, on October 9,
2020. Doc. no. 21.
Discussion
The Warden moves for summary judgment on all three of
Perez’s claims. In support, he contends that the New Hampshire
7 Supreme Court applied the appropriate legal standards in
concluding that Perez’s statements were not used in violation of
his Miranda rights and that Perez’s sentence was not changed
illegally. With respect to the claim pertaining to the
documents reviewed in camera, the court will also review the
documents in camera to determine whether the New Hampshire
Supreme Court’s decision was contrary to or an unreasonable
determination of federal law.
A. Miranda Rights
Perez contends that his Miranda rights were violated
because the police ordered him to sign a Miranda waiver that he
could not read due to his severe learning disabilities and then
his statements were used against him at trial. More
specifically, Perez contends that he did not knowingly waive his
rights because Detective Geha did not read the waiver section to
him and he was unable to read it to himself. The government
moves for summary judgment on that claim, arguing that the New
Hampshire Supreme Court’s decision affirming denial of his
motion to suppress is neither contrary to nor an unreasonable
application of clearly established federal law.
Under clearly established federal law, “most statements
made by a suspect during a custodial interrogation are
8 inadmissible at trial absent a valid waiver of Miranda rights.”
United States v. Carpentino, 948 F.3d 10, 25 (1st Cir. 2020). A
waiver of Miranda rights is valid, if “appraised in light of all
the circumstances, the waiver was both knowing and voluntary.”
Id. at 26. To be a knowing waiver, the suspect must have “full
awareness of both the nature of the right being abandoned and
the consequences of the decision to abandon.” Id. That is,
“[t]o show a knowing waiver, the government need only
demonstrate that the defendant knew that he could remain silent
and request a lawyer and that his statements could be used
against him.” Id. at 30. The government bears the burden of
showing by a preponderance of the evidence that the suspect
knowingly waived his rights. Id. at 26.
In this case, there is no dispute that Perez understood his
protected rights, as provided on the Miranda form and read to
him. The issue is whether he knowingly waived those rights by
signing the waiver form, which was not read to him and which he
says he could not read himself.
On appeal, the New Hampshire Supreme Court noted that Perez
produced no evidence at the suppression hearing that he could
not read. Perez, 2017 WL 4341420, at *2. Although Perez
testified at trial about his inability to read, because he did
not renew his motion to suppress at trial, the review of the
9 denial of his motion to suppress was limited to the evidence
presented at the suppression hearing. Id. Based on that
record, the supreme court held that the government proved beyond
a reasonable doubt that Perez’s waiver of his Miranda rights was
intelligent, knowing, and voluntary. Id.
Perez does not challenge the factual basis of the New
Hampshire Supreme Court’s decision. He argues that on those
facts his waiver was not made knowingly. The record shows that
Perez understood his Miranda rights. Further, after Perez was
informed of those rights, Geha asked Perez if he were willing to
talk to him about the accusations and Perez agreed to do so.
Once Perez agreed to talk, Geha gave Perez the Miranda form to
sign, and he signed the form in the appropriate place.
The state standard applied by the supreme court requires a
higher burden of proof for the government than does the federal
standard. Based on that higher standard, the New Hampshire
Supreme Court concluded that Perez intelligently and knowingly
waived his Miranda rights. Perez has not shown that the supreme
court’s decision was an unreasonable application of or contrary
to federal law.
10 B. In Camera Review
The trial court ordered that Y’s school records and records
from the Massachusetts Department of Children and Family
Services be submitted for in camera review. The court then
reviewed the records, in camera, and the records that it deemed
to be essential and reasonably necessary to Perez’s defense.
Some of the records, which the trial court determined did not
meet that standard, were not disclosed. The New Hampshire
Supreme Court affirmed that decision after its own in camera
review of the undisclosed records.
Perez contends that the decision not to disclose those
records violated federal law because the undisclosed records
were potentially exculpatory in that they may have included
information that showed Y had a motive to lie. Specifically, he
contends that the undisclosed documents may have supported his
defense theory that Y falsely alleged the assaults in order to
be removed from her mother’s home.3 He sought information that
showed Y wanted to be removed, her knowledge about reasons for
removal, and her mood in late May of 2014.
A criminal defendant is entitled under the due process
clause of the Fourteenth Amendment to information that is
3 That argument was made in his appeal to the New Hampshire Supreme Court, and Perez submitted that brief in support of his habeas petition.
11 favorable to his defense and material to his guilt or
punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963). Such
information includes information that could be used to impeach a
government witness. United States v. Bagley, 473 U.S. 667, 676
(1985).
Under New Hampshire law, a criminal defendant is entitled
to have privileged or confidential materials reviewed in camera
by the court if he shows a reasonable probability that the
information is material and relevant to his defense. State v.
Gagne, 136 N.H. 101, 104 (1992). Privileged and confidential
materials will be disclosed only if they are “essential and
reasonably necessary to the defense at trial.” State v. Guay,
162 N.H. 375, 385 (2011); see also State v. Girard, Case No.
2018-0608 (N.H. Oct. 16, 2020). The standard of essential and
reasonably necessary was recently clarified to require the
reviewing judge to determine whether the materials in fact
contain material and relevant evidence. Id. at *8.
This court also has reviewed the in camera documents that
were not disclosed by the trial court, along with the documents
that were disclosed. The undisclosed documents do not include
any different information that is favorable and material to
Perez’s guilt or punishment or that could have been used to
impeach a government witness during his trial. Therefore, Perez
12 has not shown that the New Hampshire Supreme Court’s decision
affirming the trial court’s ruling following in camera review
was contrary to or an unreasonable application of federal law.
C. Sentence Increase
Perez contends that the state illegally changed his
sentence to a longer term of imprisonment. He raised that claim
in his petition for a writ of certiorari to the New Hampshire
Supreme Court, seeking to appeal the Sentencing Review Board’s
decision. In his brief in support of the petition, Perez
acknowledged that the sentence review process was
constitutional. He argued, however, that in his case there was
an impermissible delay in issuing the sentencing decision.4
The New Hampshire Supreme Court denied Perez’s petition,
referencing Rule 11 of the Rules of the Supreme Court of the
State of New Hampshire. Rule 11 provides the requirements for a
petition for original jurisdiction, which includes the provision
that such petitions “shall be granted only when there are
special and important reasons for doing so.” In addition to
4 Although the Warden provided a copy of the brief with his answer, he did not address the arguments raised there. Instead, the Warden addressed the claim as a challenge to the legality of the increase under New Hampshire sentencing laws. That does not appear to be the claim that Perez has raised.
13 substantive conditions, the rule requires that certain
procedures be followed.
The claim was not adjudicated on the merits by the New
Hampshire Supreme Court, which only would have occurred if the
petition had been granted so that the court heard the appeal.
The New Hampshire Supreme Court’s general reference to Rule 11
does not show that the petition was denied on procedural
grounds. Therefore, the court will review the sentencing claim
under the de novo standard.
In his brief in support of the petition for a writ of
certiorari, Perez relied on State ex rel. McLellan v. Cavanaugh,
127 N.H. 33, 37-40 (1985), for the proposition that due process
and the right to a speedy trial (under both the state and
federal constitutions) require a speedy disposition of the case
after trial and that a delay in sentencing could violate those
rights. The United States Supreme Court, however, has since
held that the Sixth Amendment right to a speedy trial does not
pertain to post-conviction delays in sentencing. Betterman v.
Montana, 136 S. Ct. 1609, 1613 (2016). At that stage, “[t]he
primary safeguard comes from statutes and rules.” Id. at 1617
(citing, among other rules, N.H. Rule Crim. Proc. 29(a)(1)
(2016)). In addition, the due process clause of the Fourteenth
Amendment “serves as a backstop against exorbitant delay.” Id.
14 The Supreme Court did not apply the due process standard in
Betterman because the defendant had not raised that ground for
relief. The Supreme Court stated, however, that “[r]elevant
considerations may include the length of and reasons for delay,
the defendant’s diligence in requesting expeditious sentencing,
and prejudice.” Id. at 1618, n.12. In her concurrence, Justice
Sotomayor cited the same factors, which are provided in Barker
v. Wingo, 407 U.S. 514, 530 (1972), and stated that the Barker
factors would be the appropriate test for whether sentencing
delays violated due process. Id. at 1619.
Prior to the ruling in Betterman, the First Circuit used
the four Barker factors provided to determine whether a
sentencing delay violated the Sixth Amendment, but the First
Circuit has not had the opportunity to address the issue after
Betterman. United States v. Carpenter, 781 F.3d 599, 608 (1st
Cir. 2015). The Third Circuit has held, after Betterman, that
the four Barker factors apply to determine whether a delay in
sentencing caused a due process violation. United States v.
Lacerda, 958 F.3d 196, 219 (3d Cir. 2020); see also United
States v. Yupa Yupa, 796 F. App’x 297, 299 (7th Cir. 2020). The
four Barker factors are: “the length of the delay, the reason
for the delay, the defendant’s assertion of the right to a
speedy trial, and whether the defendant has been prejudiced by
15 the delay.” Carpenter, 781 F.3d at 608; accord Lacerda, 958
F.3d at 219-20.
Applying the Barker factors here, Perez has not shown that
the delay in the Sentencing Review Board’s decision violated his
right to due process. Perez argued in his brief in support of
his petition for a writ of certiorari that the delay in issuing
the decision to increase his sentence, which was imposed more
than two and a half years after his original sentencing, was too
long and was caused by the government.
To implicate due process rights, however, delay must be
“the product of bad faith reasons.” United States v. Irizarry-
Colon, 848 F.3d 61, 70 (1st Cir. 2017). While the delay between
Perez’s initial sentencing and the Sentence Review Board’s
decision was lengthy, Perez has not shown that it was caused by
the government’s bad faith. The government moved to stay the
proceeding before the Sentencing Review Board, pending the
outcome of Perez’s appeal, which was granted. The record does
not show that Perez objected to the stay, otherwise attempted to
move the proceedings along more quickly, or raised the issue of
a delay in the sentencing review proceeding at any time before
the decision issued. Because the appeal put the conviction in
question, it was reasonable to delay the sentence review until
after that proceeding concluded.
16 Perez argued that he suffered extreme prejudice as a result
of the increase in his sentence. In support, he states that,
when the Sentencing Review Board’s decision issued, he was
within four months of his minimum parole date and had been
changed to minimum security status so that he lived outside of
the prison. As a result of the increase in his sentence, his
parole date change, his inmate status was changed to a higher
security level, and he was returned to the prison.
As Perez plainly states, the changes in his parole date and
security status, which caused a change in his living situation,
were the result of his increased sentence. Perez does not
allege or show that the delay in issuing the decision that
increased his sentence caused those changes. Because Perez has
not shown that the delay in the Sentencing Review Board’s
decision violated his right to due process, that claim fails.
Conclusion
For the foregoing reasons, the Warden’s motion for summary
judgment (document no. 17) is granted. Perez’s claims brought
in support of his petition for a writ of habeas corpus are
dismissed.
17 Because Perez has not made a substantial showing of the
denial of a constitutional right, the court declines to issue a
certificate of appealability. 28 U.S.C. § 2253(c)(2).
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
______________________________ Joseph A. DiClerico, Jr. United States District Judge October 20, 2020
cc: Daniel Perez, pro se Elizabeth C. Woodcock, Esq.