Graf v. Warden, NHSP

2000 DNH 235

• Court: District Court, D. New Hampshire
• Decided: November 1, 2000
• Docket: CV-00-124-JD
• Status: Published

Opinion

Graf v. Warden, NHSP CV-00-124-JD 11/01/00 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Carl Graf

v. Civil No. 00-124-JD Opinion No. 2000 DNH 235 Warden, New Hampshire State Prison

O R D E R

Carl Graf petitions for a writ of habeas corpus pursuant to

28 U.S.C.A. § 2254, raising ten claims of constitutional error in

his criminal trial.1 The respondent moves to dismiss five of the

claims and part of a sixth claim on the ground that the claims

were procedurally defaulted. The petitioner objects, contending

that most of the claims were not defaulted and that he can

demonstrate cause and prejudice or a substantial miscarriage of

justice as to the defaulted claims.

Background

Carl Graf was convicted in May of 1995 on three counts of

felonious sexual assault. Graf was a friend of the family of the

ten-year-old boy whose allegations of sexual contact with Graf

1Although the petition lists nine claims, the first claim has two parts which the petitioner apparently accepts as two separate c l a i m s . led to the sexual assault charges brought against Graf. Graf was

sentenced to seven and a half years to fifteen years imprisonment

on one count, and to consecutive suspended sentences on the other

two counts.

On appeal, Graf argued:

that the trial court violated his rights to due process, confrontation, and to produce all favorable proofs under both the State and Federal Constitutions when it precluded him from: (1) introducing character evidence that he was not the type of person who would sexually assault children or take advantage of them; and (2) introducing privileged information during the cross-examination of the State's expert witness regarding the victim's sexual history and punishments the victim may have received. The defendant also contends that a communication between the county attorney and the chief justice of the superior court that led to the recusal of the original judge assigned to the defendant's trial denied him due process. Finally, the defendant argues that the trial court erred in admitting hearsay statements made by the victim to his pediatrician without first determining the victim's intent in making those statements.

State v. Graf. 726 A . 2d 1270, 1273 (N.H. 1999). His conviction

was affirmed. See i d . at 1278.

After Graf's first federal habeas petition was dismissed

because it included unexhausted claims, see Graf v. W a r d e n , No.

98-379-JD, (Aug. 18, 1999), Graf filed a habeas petition in state

court, raising the unexhausted claims. The state habeas court

denied his petition, finding that all but two of the new claims

were procedurally waived. Graf v. W a r d e n , 99-E-0377 (Dec. 3,

2 1999), at 4. The court found that the issue of appellate delay

was moot, and that Graf had not shown by a preponderance of the

evidence that statements made by a former police chief supported

his conspiracy theory of police misconduct. After the New

Hampshire Supreme Court denied his appeal from the dismissal of

his state habeas petition, Graf filed a habeas petition in this

court.

Discussion

The respondent moves to dismiss five of Graf's claims and

part of a sixth, contending that because the claims were

procedurally defaulted in the state actions, Graf is barred from

seeking relief on those claims here. Graf contends that five of

the challenged claims were not defaulted. As to one of those

claims, he argues that if it were defaulted, he can show cause

and prejudice for the default or a miscarriage of justice. As to

the default of the sixth claim, he argues a miscarriage of

justice overcomes the default.

A. Procedural Default

A claim is procedurally defaulted if the petitioner did not

give the state court a fair opportunity to pass on the claim due

to the petitioner's failure to abide by a state procedural rule.

3 See Coleman v. T h o m p s o n , 501 U.S. 122 , 732 (1991) . A procedural

default in state court based on independent and adequate state

grounds bars review by a federal court absent a showing of cause

for the default and resulting prejudice or a miscarriage of

justice. See i d . at 1 3 2 , 751; accord Edwards v. Carp e n t e r , 120

S. C t . 1587, 1591 (2000). To constitute a bar to federal habeas

review, the state procedural rule must be "''firmly established

and regularly followed' at the time it was applied." I d . at 1590

(quoting Ford v. G e o r g i a , 498 U.S. 411, 423-24 (1991)).

In 1999, when Graf's direct appeal and state habeas action

were decided, it was well-established under New Hampshire law

that a defendant waives any issue not raised in the notice of

appeal. See State v. Jac k s o n . 738 A . 2d 354, 356 (N.H. 1999) . In

addition, it has long been settled that a timely and specific

objection is necessary to preserve an issue for appeal. See

State v. R v a n , 135 N.H. 587, 588 (1992); State v. G u a v , 130 N.H.

413, 418 (1988). Issues that are raised in the notice of appeal

but not briefed are also waived. S e e , e . g . . State v. P o r t e r , 738

A . 2d 1271, 1276 (N.H. 1999). A petitioner who had knowledge of

an issue and an opportunity to raise the issue on direct appeal,

but failed to do so, procedurally waives the issue for state

collateral review. See Avery v. C u n n ingham, 131 N.H. 138, 143

(1988) .

4 The petitioner's first question in his notice of appeal from

his criminal conviction asked, "Did the Court deny the defendant

his right to due process of law, as well as his right [to] all

proofs favorable under both the State and Federal Constitutions

when it denied the defendant the opportunity to introduce

character evidence?" In his brief, the petitioner stated the

question, but then argued that the proffered character evidence

should have been admitted under New Hampshire Rule of Evidence

4 0 4 ( a ) (1) and the New Hampshire Constitution, Part I, Art. 15.

The New Hampshire Supreme Court interpreted the favorable proofs

part of the question to raise an issue under the state

constitution, as cited, and the compulsory process clause of the

federal constitution. See G r a f . 726 A . 2d at 1273. The court

ruled that the brief also addressed an evidentiary issue, with

respect to the character evidence, but not a right to due

process, and therefore addressed only the evidentiary argument.

See i d . at 1274. The state habeas court ruled that the

petitioner procedurally defaulted his due process claim, arising

from the exclusion of his good character evidence. See Graf v.

Cunningh a m , No. 99-E-0377, slip op. at 4.

In response to the respondent's motion that the due process

issue as to the court's exclusion of the petitioner's good

character evidence was procedurally defaulted, the petitioner

5 argues that the issue was sufficiently briefed because it was

stated in a caption and because one case cited in that section

articulated a due process argument.2 The petitioner's argument

is unavailing because both the supreme court and the habeas court

found that the issue was defaulted based on state law. This

court is barred from reviewing the state courts' decisions, based

on independent and adequate state law grounds, absent a showing

of cause and prejudice for the default or a miscarriage of

justice. See, e . g . , Edwards, 120 S. C t . at 1591.

Similarly, the petitioner's claim that the trial court's

decision to admit the victim's statements to his treating

physician violated due process was procedurally defaulted. The

due process issue as to statements made to the physician was

neither raised nor briefed before the New Hampshire Supreme

Court, and the state habeas court ruled that it was procedurally

defaulted. See Graf, No. 99-E-0377, slip op. at 4.

The due process issue as to the admissibility of privileged

matters relating to the victim's prior sexual activity and

2The United States Supreme Court case, which the petitioner relies on as having presented his due process argument, was included in the appeal brief only as part of the cite to a New Hampshire case. State v. R a m o s , 121 N.H. 863, 868 (1981), without any mention of the due process argument. The appellate brief cited Ramos in support of an argument under New Hampshire law, not for a federal due process right.

6 knowledge was raised in the notice of appeal, but was briefed

only to a limited extent. In his brief, the petitioner focused

on the need to use the evidence in cross-examination of the

state's expert witness, which is the issue that was addressed by

the supreme court. See Graf, 726 A . 2d at 1275-76. The broader

question as to whether the exclusion of the privileged matters

violated the petitioner's due process rights was not briefed on

direct appeal and was not raised in the state habeas action.

Therefore, the broader due process issue was procedurally

defaulted, which bars review here, absent a showing of cause and

prejudice or a fundamental miscarriage of justice. See Edwards,

120 S. Ct. at 1591.

The petitioner admits that his claims that the trial court's

competency finding and decision to permit evidence of the

victim's memories of abuse by the petitioner violated due process

were not articulated to the New Hampshire Supreme Court on direct

appeal. The petitioner argues, however, that those issues

"clearly and obviously flow" from the petitioner's argument that

his due process rights were violated by not being permitted to

use evidence of the victim's history, including prior sexual

activity, on cross examination of the state's expert witness.

Since those issues were neither raised in the notice of appeal,

nor briefed as subsidiary issues, see N.H. Supr. C t . R. 16(3) (b),

7 the issues were waived. The state habeas court ruled that those

issues were procedurally defaulted, which bars consideration of

the issues here. See Graf, 99-E-0377, slip op. at 4.

At the petitioner's criminal trial, the prosecutor argued in

closing that the victim's only possible source of knowledge about

the petitioner's alleged sexual activity with him was from that

activity itself. The petitioner asserts that the argument was

improper because the prosecutor knew that the victim had other

possible sources for such knowledge. The petitioner acknowledges

that the issue of alleged prosecutorial misconduct, pertaining to

the prosecutor's closing argument, was procedurally defaulted

because his trial counsel did not object to the argument and the

issue was not raised on appeal. The petitioner argues, however,

that he can show cause and prejudice for the default. The

petitioner also contends that he can show a miscarriage of

justice as to the alleged prosecutorial misconduct and the trial

court's decision to exclude from evidence privileged matters

pertaining to the victim's prior sexual activity.

B. Cause and Prejudice; Miscarriage of Justice

A petitioner who has procedurally defaulted claims in the

state court system, which deprived the state court of an

opportunity to review the alleged errors, must show sufficient cause for the default and resulting prejudice to overcome the bar

to federal review of those claims. See E d w a r d s , 120 S. C t . at

1591. Alternatively, a petitioner may overcome the bar if he can

show "a sufficient probability that [the federal court's] failure

to review his federal claim will result in a fundamental

miscarriage of justice." Id.

The petitioner here contends that the cause for the default

of his claim based on the prosecutor's alleged misconduct was his

trial counsel's error in not objecting to the prosecutor's

closing argument. The petitioner argues that ineffective

assistance of counsel was the cause for the default. He also

contends that prejudice exists because there is a reasonable

probability that the result would have been different if his

counsel had properly objected.

As the respondent argued in support of his motion to

dismiss, ineffective assistance of counsel cannot serve as cause

to excuse a procedural default unless the ineffective assistance

of counsel claim is itself properly before the federal court.

See Edwards, 120 S. C t . at 1591-92. In this case, the petitioner

has not brought an ineffective assistance of counsel claim in

support of his habeas petition and did not bring such a claim in

either his direct appeal or his state habeas action. Therefore,

his trial counsel's alleged constitutional deficiency in failing

9 to object to the prosecutor's closing argument is not adequate

cause to excuse the procedural default of the claim in state

court. See i d .

The petitioner alternatively argues that this court's

failure to review the trial court's decision to exclude

privileged matters relating to the victim's prior sexual activity

and victimization and the related alleged prosecutorial

misconduct "will result in a fundamental miscarriage of justice."

E d w a r d s , 120 S. C t . at 1591. A fundamental miscarriage of

justice is an "'extraordinary instance[s] when a constitutional

violation probably has caused the conviction of one innocent of

the crime.'" United States v. B a r r e t t , 178 F.3d 34, 48 (1st Cir.

1999) (quoting McCleskev v. Z a n t , 499 U.S. 467, 494 (1991)). The

miscarriage of justice exception requires proof of actual

innocence, meaning "'that it is more likely than not that no

reasonable juror would have found petitioner guilty beyond a

reasonable doubt.'" Simpson v. M a t e s a n z , 175 F.3d 200, 210 (1st

Cir. 1999) (quoting Schlup v. D e l o , 513 U.S. 298, 321 (1995));

see also Calderon v. T h o m p s o n , 523 U.S. 538, 559 (1998) .

The petitioner here offers no new evidence of his innocence.

Instead, he asserts his innocence and argues that the excluded

evidence would have resulted in a different verdict. The

petitioner contends that he is innocent of the charges of

10 conviction, and as a result, he has not participated in the

sexual offender program, despite a possible reduction in his

sentence if he did participate. He argues that his conviction is

based entirely on the testimony and statements of the victim,

which were uncorroborated by any physical evidence or eye

witnesses. He also challenges the credibility of the victim's

testimony.

In contrast, he argues, evidence exists in the privileged

matters, which the trial court excluded, that would show that the

victim had sources of sexual knowledge other than the

petitioner's charged conduct. That evidence would undermine the

victim's allegations against him and prevent the prosecutor's

argument that the victim's alleged sexual activity with the

petitioner was the only possible source of his knowledge of such

activity. The petitioner also contends that the privileged

matters would permit him to undermine the victim's credibility.

The privileged matters, as evidenced in the materials

submitted in support of the petitioner's motion to dismiss, do

not support his claim that the jury would likely have found him

not guilty if the privileged matters concerning the victim's

prior sexual experience were admitted at trial. The state trial

court judge reviewed the privileged matters in camera and

permitted the petitioner's trial counsel to review the matters

11 for purposes of the motion to admit the evidence. After a

hearing on admissibility, the trial court ruled that the adoptive

mother's statement that she was concerned that the victim might

have been abused in foster homes was "completely unsubstantiated"

and had no probative value with respect to the charges against

the petitioner. The trial judge also ruled that the evidence of

other sexual activity had been represented as normal behavior by

the psychiatrist who interviewed the victim and that no

substantiation existed as to any prior sexual assaults. The

trial judge explained that he had reviewed documents that might

arguendo be probative of the victim's prior sexual knowledge but

found that "the documents, themselves, do not supply insight into

the knowledge the alleged victim may have acquired in regard to

the type of acts which he now accuses the defendant of doing."

State v. G r a f . No. 94-S-180-181-182, slip op. at 6 (April 13,

1995) . The trial judge granted the petitioner's request to use

evidence pertaining to the victim's credibility.

This court also has reviewed the state court filings and

orders, pertaining to the admissibility of the privileged matters

and a transcript of the hearing on admissibility, submitted by

the petitioner in support of his objection. The materials

submitted suggest nothing that would so undermine the court's

confidence in the conviction as to suggest the conviction of one

12 who was actually innocent. As the petitioner has not

demonstrated the likelihood of a miscarriage of justice if his

claims were not reviewed here, he has not overcome the procedural

bar to review.

Conclusion

For the foregoing reasons, the respondent's motion to

dismiss (document no. 18) is granted. The following issues

raised in the petitioner's first amended petition (document no.

7) at paragraph 12 are dismissed: b, c, d (due process claim), e,

f, and i (except as pertinent to cross examination of the expert

witness).

SO ORDERED.

Joseph A. DiClerico, Jr District Judge

November 1, 2000

cc: Michael J. Sheehan, Esquire Neals-Erik W. Delker, Esquire