Fletcher v. NH Dept. Corrections CV-95-506-M 04/07/97 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Daniel Fletcher
v. Civil No. 95-506-M
Commissioner, New Hampshire Department of Corrections, et al.
O R D E R
Daniel Fletcher, appearing pro se, petitions for a writ of
habeas corpus pursuant to 28 U.S.C.A. § 2254 on three grounds:
(1) whether he was denied his right to a speedy trial; (2)
whether his sentence was excessive and thus in violation of his
Eighth Amendment right not to be subjected to cruel and unusual
punishment; and (3) whether the New Hampshire Sentence Review
Board panel impartially reviewed his sentence. The defendants
have moved for summary judgment, and Fletcher has not objected.
For the following reasons, summary judgment is granted in favor of the defendants,1 and Fletcher's habeas corpus petition is
denied.
BACKGROUND
The incident resulting in the conviction and sentence
Fletcher challenges in his habeas petition occurred on April 5,
1988, while Fletcher was an inmate at the New Hampshire State
Prison. On that day, Fletcher was transferred from one tier to
another in the secure housing unit. He was upset because he was
not allowed to pack his own belongings for the move. When the
guard who accompanied Fletcher during his transfer returned to
deliver his lunch, Fletcher threw a bowl of hot soup back through
the food opening, hitting the guard in the face, neck, and
1 Fletcher is a New Hampshire prisoner, convicted and sentenced by a New Hampshire state court, but is presently incarcerated at the Wagner Youth Correctional Facility in Bordentown, New Jersey. For that reason, apparently, Fletcher has included New Jersey Department of Corrections officials as defendants in his petition for habeas corpus. The New Jersey Corrections Department defendants have notified the court, by means of a letter (copied to Fletcher and the New Hampshire Attorney General) that they are not proper parties and ask to be dismissed. In this district, the Local Rules reguire that motions, such as the New Jersey defendants' reguest to dismiss them from the case, must be filed in proper form or may be stricken from the record. See LR 5.2 and 7.1. Because Fletcher's petition for habeas relief is resolved on the merits, however, it is unnecessary to separately address the status of the New Jersey defendants or reguire them to comply with local procedural rules at this stage.
2 shoulder. The guard was treated in the hospital for first degree
burns.
Fletcher was indicted on May 20, 1988, for assaulting a
prison guard. His trial was originally scheduled for October 3,
1988, but was delayed until June 26, 1990. Following a jury
trial, he was convicted of assault by a prisoner in violation of
New Hampshire Revised Statute Annotated § 642:9 and was sentenced
on December 7, 1990, to serve three and one half to seven years
in the New Hampshire State Prison. He appealed his conviction on
grounds that he was denied his right to a speedy trial, and
challenged his sentence on grounds that it was excessive in
relation to the crime. The New Hampshire Supreme Court accepted
appeal on the speedy trial issue and denied, without explanation,
appeal of his sentence, and then affirmed his conviction. See
State v. Fletcher, 135 N.H. 605 (1992).
In the meantime, on April 19, 1991, Fletcher's sentence was
affirmed by New Hampshire Superior Court Judges DiClerico,
Murphy, and Cann, serving as a panel of the Superior Court's
Sentence Review Board. Thereafter, Fletcher moved to recuse all
three judges on grounds that they had participated in earlier
matters involving Fletcher; he also asserted other alleged
biases. While Judges Murphy and Cann found no bases to justify
3 their recusal. Judge DiClerico recused himself from the panel
because he had presided at Fletcher's arraignment, although
Fletcher failed to raise the issue at the sentence review
hearing. As a result, a rehearing before Judges McHugh, Mangones
and Perkins was held and on July 19, 1991, that panel also
affirmed Fletcher's sentence. Fletcher, through counsel, then
moved to set aside the decision due to bias based on Judge
McHugh's previous participation in the case. When his motion was
denied, Fletcher, again represented by counsel, filed a second
notice of appeal to the New Hampshire Supreme Court which was
dismissed as having been untimely filed.
DISCUSSION
In his petition for habeas relief, Fletcher again contends
that he was unconstitutionally denied a speedy trial, that his
sentence was excessive, and that bias infected the panel of the
Sentence Review Board that affirmed his sentence. Defendants
move for summary judgment asserting that Fletcher cannot prevail
on any of the grounds he asserts for habeas relief.
Summary judgment is appropriate if the parties' submissions
show that "there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter oflaw."
4 Fed. R. Civ. P. 56(c); see Fed. R. Civ. P. 81(a)(2)(Federal Rules
of Civil Procedure apply in habeas proceedings to the extent not
inconsistent with practice established by statute); Rules
Governing § 2254 Cases, Rule 11 (same). In a § 2254 action, "a
determination after a hearing on the merits of a factual issue,
made by a State court of competent jurisdiction in a proceeding
to which the applicant for the writ and the State or an officer
or agent thereof were parties, evidenced by a written finding,
written opinion, or other reliable and adeguate written indicia,
shall be presumed to be correct, unless the applicant shall
establish or it shall otherwise appear, or the respondent shall
admit" listed deficiencies in the state proceeding. 28 U.S.C.A.
§ 2254(d).2 The petitioner carries the burden to prove by
Section 2254 was amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L . No. 104-132, 110 Stat. 1218 (April 24, 1996). The parties do not address the amendment, apparently assuming that the pre-amendment version of the statute applies in this case, which was filed before April 24, 1996. Retroactive application of the amendment is an unsettled guestion of law. See, e.g., Berryman v. Morton, 100 F.3d 1089, 1103-04 (3d Cir. 1996)(discussing difference in circuits' opinions on the issue); Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996)(en banc)(holding amendment applied retroactively in non-capital cases), cert, granted,117 S. C t . 726 (1997). It is unnecessary to resolve that issue in this case, however, because the amendment makes habeas relief more difficult, see Pettiwav v. Vose, 100 F.3d 198, 200 n.l (1st Cir. 1996), and even under the more lenient pre-AEDPA rules petitioner is not entitled to relief.
5 "convincing evidence" that the state court's factual findings are
erroneous. § 2254(d); see also Sumner v. Mata, 449 U.S. 539, 551
(1981). While the state court's findings of historical fact are
presumed to be correct, legal conclusions and determinations
based on mixed guestions of law and fact are subject to de novo
review. See Thompson v. Keohane, 116 S. C t . 457, 464-67 (1995);
Scarpa v. Dubois, 38 F.3d 1, 9 (1st Cir. 1994), cert, denied, 115
S. C t . 940 (1995). Fletcher's asserted grounds for habeas relief
are reviewed in light of the applicable standard.
A. Speedy Trial
Once charged with a crime, a criminal defendant is
guaranteed a "speedy" trial. U.S. Const, amend. VI. Whether the
right to a speedy trial has been violated reguires examination of
four factors: "whether delay before trial was uncommonly long,
whether the government or the criminal defendant is more to blame
for that delay, whether, in due course, the defendant asserted
his right to a speedy trial, and whether he suffered prejudice as
the delay's result." Doggett v. United States, 505 U.S. 647, 651
(1992)(citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). The
speedy trial analysis is generally triggered when at least a year
6 elapses between the time of accusation and trial for the crime
accused. See Doggett, 505 U.S. at 652 n.l.
On appeal of the speedy trial issue in Fletcher's case, the
New Hampshire Supreme Court made the following factual findings,
see Fletcher, 135 N.H. at 606-607, which Fletcher has not
challenged nor do they appear to suffer from any of the
deficiencies listed in § 2254(d). Fletcher was indicted on May
20, 1988, and trial was scheduled for October 3, 1988. The day
of trial, Fletcher filed a pro se motion in which he asked for a
continuance and waived his right to a speedy trial for the delay
caused by the continuance. The trial was then reset for March
28, 1989. On that day, however, Fletcher's appointed attorney,
acting on Fletcher's direction, moved to withdraw, and his motion
was granted. The trial was rescheduled for the week of July 10,
1989, and a new attorney was appointed to represent Fletcher. On
July 10, this attorney filed a motion withdraw because she had
not been able to meet with Fletcher due to his hospitalization.
Her motion was granted and a third attorney was appointed to
represent Fletcher.
On August 2, 1989, Fletcher filed a pro se motion to dismiss
the indictment against him asserting that he had been denied his
right to a speedy trial. Fletcher's third appointed attorney
7 moved to withdraw from the case on September 11 on grounds that
as a sole practitioner, he lacked time and resources to
effectively represent Fletcher. His motion to withdraw was
granted on October 31, 1989, and a fourth attorney was appointed
on December 20. The case was scheduled for trial the week of
March 19, 1990, but was delayed until June 26 because of a
scheduling conflict with the judge to whom the case was assigned.
After trial, on August 14, 1990, the court addressed Fletcher's
motion to dismiss the indictment for lack of a speedy trial and
denied the motion.
In all, there was a twenty-five month delay between the date
of Fletcher's indictment and his trial, which delay gualifies as
presumptively prejudicial. See United States v. Mala, 7 F.3d
1058, 1062 n.3 (1st Cir. 1993), cert, denied, 511 U.S. 1086
(1994). However, eleven months of that delay was caused by
Fletcher. Fletcher, 135 N.H. at 608. As the remaining fourteen
months still reguire examination, see Doggett, 505 U.S. at 652
n.l, that period must be examined in light of the remaining
Barker/Doggett factors.
The remaining fourteen month period consists of the four and
one- half months that elapsed between the May 20, 1988,
indictment and the original trial date of October 3, 1988; a six- month delay between September 11, 1989, to March 19, 1990, after
Fletcher's third appointed attorney withdrew due to the pressures
of his practice; and the three-and-a-half month delay between
March 19 and the date of trial on June 26, 1990, due to a
conflict in the assigned judge's schedule. The New Hampshire
Supreme Court found that while all fourteen months might be
attributed to the state, most of remaining delay was due to the
"practical administration of justice" which, under state law, is
not to be weighed heavily against the state. See Fletcher, 135
N.H. at 608.
This court accepts the factual determinations previously
made that all fourteen months are attributable to the state and
that Fletcher asserted his right to a speedy trial. Applying
federal law to assess the cause of the delay, it is clear that
the remaining delay was not deliberately caused by the state; at
most it was the result of mere administrative inattentiveness and
competing demands upon the court's schedule, and thus it is
weighted less heavily in balancing the Barker factors. Barker,
407 U.S. at 531.
The fourth factor, prejudice caused by the delay, is to be
assessed in light of defendants' interests served by the speedy
trial right: " (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to
limit the possibility that the defense will be impaired."
Barker, 407 U.S. at 532. When a defendant is incarcerated for
reasons other than pretrial detention on the charged crime,
prejudice may still arise from other effects of delay such as
impairment of defendant's parole opportunity. See Moore v.
Arizona, 414 U.S. 25, 27 (1973). However, to implicate a
defendant's speedy trial right, prejudice resulting from delay
must be at least significant, not minimal. See Barker at 534;
see also United States v. Loud Hawk, 474 U.S. 302, 314 (1986).
Fletcher contends that he was prejudiced by the fourteen
months of delay because the parole board refused to consider his
eligibility for parole during the pendency of the indictment.
The state argued, in its objection to Fletcher's motion to
dismiss the indictment, before the state trial court3 that
Fletcher's prison disciplinary record would not have permitted
parole in any case. The state court found: "since there was no
3 The trial court was the last state court to consider and present a judgment on the prejudice issue as the New Hampshire Supreme Court affirmed the judgment without explicitly addressing prejudice. See Fletcher, 135 N.H. at 608. Thus, as the trial court's factual findings on the prejudice issue represent the last reasoned state judgment on the issue and the issue was not procedurally barred later, the trial court's findings remain in place. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
10 guarantee that defendant would be granted parole had the parole
board considered his case during the time his indictment for
second degree assault was pending, any prejudice to defendant as
a result of this delay is speculative." While it may not be
necessary under a federal standard to show that parole was
otherwise "guaranteed" in order to demonstrate prejudice, a
defendant must be able to point to some reasonable chance of
achieving parole that was lost due to the delay in trial to
establish that the delay was significantly prejudicial. See,
e.g.. United States v. Henson, 945 F.2d 430, 438 (1st Cir. 1991);
United States v. Cyphers, 556 F.2d 630, 636 (2d Cir.), cert.
denied, 431 U.S. 972 (1977).
On the record presented here, Fletcher has not made the
necessary showing that his parole opportunity was significantly
prejudiced. As Fletcher has offered no reason to discount the
state court's factual finding, it is presumed to be reliable.
See § 2254(d). A speculative chance at parole, as found by the
state trial court, that was delayed by fourteen months, is
insufficient to establish that Fletcher was prejudiced by that
delay in the speedy trial context. Moreover, a fourteen month
delay, unjustified but not deliberate, is not sufficiently
protracted to constitute the kind of persistent neglect from
11 which evidentiary prejudice might be presumed. See Doggett, 505
at 657; see also, e.g.. United States v. Clark, 83 F.3d 1350,
1353-54 (11th Cir. 1996) (fourteen and one-half month delay due
to government negligence insufficient to allow prejudice
presumption); Hakeem v. Beyer, 990 F.2d 750, 764 (3d Cir. 1993)
(same).
As there is no genuine dispute as to material facts, and on
this record Fletcher's right to a speedy trial was not violated
by the state court proceedings, the defendants are entitled to
judgment as a matter of law on Fletcher's speedy trial claim.
B. Length of Sentence in Relation to Crime
Fletcher contends that his sentence is so disproportionate
to his crime — assaulting a prison guard — that it violates the
Eighth Amendment. The Eighth Amendment, however, in proscribing
cruel and unusual punishments, "forbid[s] only extreme sentences
that are significantly disproportionate to the underlying crime."
United States v. Graciani, 61 F.3d 70, 76 (1st Cir. 1995) (citing
Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (opinion of
Kennedy, J.)). In addition, statutorily mandated sentences are
to be accorded substantial deference as the constitution does not
reguire legislatures to achieve perfect balance between crimes
12 and legislated punishments. United States v. Saccoccia, 58 F.3d
754, 788 (1st Cir. 1995), cert, denied, 116 S.Ct. 1322 (1996).
Fletcher was convicted of an assault by a prisoner, a Class
B felony. N.H. Rev. Stat. Ann. § 642:9, III (1986). His
sentence, three and one-half years to seven years, is mandated
for Class B felonies. N.H. Rev. Stat. Ann. § 651, 11(b) (1986).
Under the applicable standard, Fletcher's sentence is neither
extreme nor so significantly disproportionate to his crime as to
overcome the deference allowed the legislature to establish
fitting sentences for particular criminal behavior.
The defendants are entitled to summary judgment as to
Fletcher's Eighth Amendment claim.
C. Impartiality of the Sentence Review Panel
Fletcher's last ground for habeas relief is that the panel
of the Sentence Review Board that affirmed his sentence was not
impartial because one of the three judges had previously
participated in a proceeding in the same case. The defendants
first argue that Fletcher's claim does not state a federal
constitutional basis for habeas relief since federal law does not
reguire that states even provide postconviction review of state
convictions (or sentences) . While the defendants are correct
13 that many circuits, including the Eighth Circuit cited by the
defendants, have taken that position, the First Circuit has
apparently followed a different course. Compare Williams-Bev v.
Trickev, 894 F.2d 314,317 (8th Cir.) ("Section 2254 only
authorizes federal courts to review the constitutionality of a
state criminal conviction, not infirmities in a state post
conviction relief proceeding."), cert, denied, 495 U.S. 936
(1990), with Dickerson v. Walsh, 750 F.2d 150, 153 (1st Cir.
1984) (declining to follow other circuits in denying habeas
review of state postconviction proceedings).
Nevertheless, the issue of impartiality of the Sentence
Review Board, as raised by Fletcher both here and in his notice
of appeal to the New Hampshire Supreme Court, makes no mention of
any federal statutory or constitutional ground for relief. See
28 U.S.C.A. § 2254(a). Instead, Fletcher attached, and now
attacks again, the sentence review process as having violated
state law.4 Although a habeas petition may challenge the
4 Specifically, Fletcher raises the following grounds in support of his habeas petition, which are identical to those listed in his state notice of appeal from the decision of the Sentence Review Board: "Whether RSA 651:57, the Rules of the Superior Court, and the so-called reasonableness standard which prohibits any appearance of Bias compel a Judge who has previously entered an order in a criminal case to recuse himself from sitting on a Sentence Review Panel in the same matter." State law only reguires that judges on the Review Board not
14 constitutionality of the state's administration of its own laws,
such as the sentence review process, see Dickerson, 750 F.2d at
153, Fletcher does not seem to have done so.
In addition, although the parties have not addressed the
question, the record shows that the New Hampshire Supreme Court
denied Fletcher's appeal of the Sentence Review Board's decision
as untimely filed. More specifically, the court denied the
"motion for late entry of appeal" and then, treating the notice
as a petition for writ of certiorari, dismissed it "as untimely
filed." Thus, it would appear that the issue pertaining to the
Sentence Review Board (if it were construed to include a federal
constitutional ground) was procedurally defaulted.
"In all cases in which a state prisoner has defaulted his
federal claims in state court pursuant to an independent and
adequate state procedural rule, 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."
Coleman v. Thompson, 501 U.S. 722, 750 (1991). For a state
review sentences that they imposed. N.H. Rev. Stat. Ann. § 651:57 (Supp. 1995).
15 procedural rule to constitute independent and adequate state
grounds sufficient to bar federal habeas review, the state must
have applied the rule consistently and must not have waived it in
the particular case by relying on other alternative grounds.
Burks v. Dubois, 55 F.3d 712, 716 (1st Cir. 1995). It is likely
that the New Hampshire Supreme Court's requirements for filing
appeals and for suspension of the requirements. Supreme Court
Rules 7(1) and I,5 are consistently applied and would meet the
standard for independent and adequate state grounds. See, e.g..
Prime Financial Group, Inc. v. Masters, 676 A.2d 528, 529-30
(N.H. 1996); Germain v. Germain, 137 N.H. 82, 84-85 (1993); see
also Wise v. Williams, 982 F.2d 142, 143-44 (4th Cir. 1992)
(discussing Virginia's time limit for notice of appeal including
that exceptions to the requirement do not defeat the conclusion
that it is consistently applied), cert, denied, 508 U.S. 964
(1993). Because this issue has not been addressed by the parties
and because Fletcher cannot succeed on the merits of his claim of
bias, the court will not rest denial of habeas relief upon what
appears to be a procedural default.
5 It is unclear what timeliness requirement the court applied to alternatively deny the notice of appeal as a petition for writ of certiorari.
16 Broadly interpreting Fletcher's description of the
Sentencing Review Board panel's lack of impartiality to include a
due process claim under the Fourteenth Amendment, his petition
suggests a cognizable federal ground for habeas relief. To show
unconstitutional bias, however, Fletcher must "overcome a
presumption of honesty and integrity in those serving as
adjudicators" by identifying an influence strong enough that it
"poses such a risk of actual bias or prejudgment that the
practice must be forbidden if the guarantee of due process is to
be adeguately implemented." Withrow v. Larkin, 421 U.S. 35, 47
(1975). A speculative, contingent, or remote interest does not
violate the due process reguirement. Aetna Life Ins. Co. v.
Lavoie, 475 U.S. 813, 826 (1986).
Fletcher asserts that Judge McHugh was biased against him
because he previously participated in his case by issuing an
order to the New Hampshire Department of Corrections to prepare a
new pre-sentence investigation report after Fletcher refused to
meet with a probation officer for that purpose. As described by
Fletcher, any possible bias is speculative, at best, and Judge
McHugh's prior contact with Fletcher was remote. As the record
does not support any suggestion of bias, much less establish even
a potential for actual bias or prejudgment against Fletcher by
17 the panel of the Sentence Review Board, or any of its members,
defendants are also entitled to summary judgment on this asserted
basis for habeas relief.
CONCLUSION
After careful review of Fletcher's petition for a writ of
habeas corpus and defendants' motion for summary judgment,
defendants' motion (document no. 21) is granted, Fletcher's
petition (document no. 3) is denied. The clerk of court is
directed to enter judgment accordingly.
SO ORDERED.
Steven J. McAuliffe United States District Judge
April 7, 1997
cc: Daniel Fletcher, pro se Richard J. Lehmann, Esg.