Graf v. Warden, NHSP CV-00-124-JD 04/12/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Carl Graf
v. Civil No. 00-124-JD Opinion No. 2002 DNH 082 Warden, New Hampshire State Prison
O R D E R
The petitioner, Carl Graf, seeks habeas corpus relief,
pursuant to 28 U.S.C.A. § 2254, from his state court conviction
and sentence for sexual assault of a minor. Graf raises due
process issues arising from the state prosecutor's communication
with the state court's chief judge, the trial judge's rulings
made after his recusal from the case, the state supreme court's
delay in deciding his appeal, alleged police misconduct during
the preparation of his defense, and the trial court's decision to
exclude certain evidence from cross-examination. The parties
have filed motions for summary judgment and their objections.
Background
Carl Graf was indicted by a grand jury in September of 1994
on three counts of sexual assault, arising from charges made by a
an eleven-year-old boy. Trial was scheduled for April of 1995.
Prior to trial, Graf moved to dismiss the charges against him. contending in part that the state's contact with certain
witnesses interfered with his preparation for trial. The trial
court denied the motion, finding "that the scant facts submitted
by the defendant on this issue do not constitute an impermissible
interference with the defendant's right to prepare his case."
State v. G r a f , No. 94-S-180, 181, 182, April 6, 1995, at 2; Resp.
Ex. L.
Counsel for Graf requested a hearing before the trial judge
on the admissibility of privileged matters and a hearing was held
on April 10, 1995, to consider that issue, along with others.
After the hearing, Carroll County Attorney Carol Yerden called
the Chief Justice of the Superior Court to report that the trial
judge. Judge O'Neill, had not been civil to her during the
hearing.1 According to a letter written by Senior Assistant
Attorney General Cynthia White to the New Hampshire Supreme
Court, after oral argument on Graf's appeal of his convictions,
Yerden believed Judge O'Neill was fair to the state but was
concerned that others would interpret his conduct as being
unfair.
On April 12, 1995, Judge O'Neill held an in-chambers
conference with counsel for the state and Graf. Judge O'Neill
1Yerden had previously complained to the chief judge about Judge O'Neill's demeanor in other cases.
2 indicated that he intended to recuse himself from the case and
"asked all counsel whether there was any objection to his
rendering a decision on the defendant's motion. . . . The
defendant's counsel indicated that he had no objection, and the
court issued its order the next day." State v. G r a f , 143 N.H.
294, 302 (1999). Judge O'Neill issued both his recusal order and
his order denying the defendant's motion pertaining to the
admissibility of privileged matters on April 13. "Although the
defendant filed a motion to reconsider that order, the defendant
did not raise any objection to the order having been issued by
the recused judge." Id.
The trial was rescheduled to begin on May 8, 1995, before
Judge Fauver. Judge Fauver ruled on the defendant's motion to
reconsider Judge O'Neill's order on the admissibility of
privileged matters. The motion to reconsider was denied. Graf's
counsel was not permitted to introduce privileged information
about the victim of the charged sexual assaults during cross-
examination of the state's expert witness.
The jury found Graf guilty on all three sexual assault
counts and was sentenced to serve seven-and-one-half to fifteen
years in prison and two consecutive terms of six to twelve years,
suspended. Graf was sentenced on October 23, 1995, and filed his
notice of appeal in November of 1995. The New Hampshire Supreme
3 Court accepted his appeal on January 2 6 , 1 9 9 6 , and oral argument
was held on May 21, 1997. The supreme court affirmed Graf's
conviction in a decision issued on January 15, 1999, which was
modified by a decision issued on April 23, 1999.
Graf's first federal habeas petition was dismissed in August
of 1999 because it included unexhausted claims. Graf then filed
a state habeas petition, raising the unexhausted claims, which
was denied in December of 1999. After the New Hampshire Supreme
Court denied his appeal from the dismissal of his state habeas
petition, Graf again filed a petition in this court. In a
previous order (November 1, 2000), the court dismissed four
claims and parts of two others. The parties now move for summary
judgment with respect to the remaining issues.
Standard of Review
Summary judgment is appropriate in habeas proceedings, as in
other civil actions, 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); see also Fed. R.
Civ. P. 8 1 ( a ) (2). " [A]n issue is 'genuine' if the evidence
presented is such that a reasonable jury could resolve the issue
4 in favor of the nonmoving party and a ''material' fact is one that
might affect the outcome of the suit under governing law."
Fajardo Shopping Ctr. v. Sun Alliance Ins. C o . , 167 F.3d 1, 7
(1st Cir. 1999). The court considers cross motions for summary
judgment separately, "drawing inferences against each movant in
turn." Reich v. John Alden Life Ins. C o . , 126 F.3d 1, 6 (1st
Cir. 1997).
The standard of review of a petition seeking habeas relief
depends upon the nature of the state court's decision. If the
state court adjudicated the federal issue on the merits, a
deferential standard under § 2 2 5 4 ( d ) (1) applies. See Niland v.
H a l l , 280 F.3d 6, 11-12 (1st Cir. 2002). When the state court
did not address the federal issue, however, the federal court
applies a de novo standard of review. See Fortini v. M u r p h y , 257
F.3d 39, 47 ("After all, AEDPA imposes a requirement of deference
to state court decisions, but we can hardly defer to the state
court on an issue that the state court did not address."); accord
DiBenedetto v. H a l l , 272 F.3d 1, 7 (1st Cir. 2001) .
In this case, the respondent asserts that the deferential
standard of § 2 2 5 4 ( d ) (1) applies. Graf does not apply any
standard in his arguments in support of his own motion or in
opposition to the respondent's motion, contending that it is
enough to simply make his argument. In addition, Graf explicitly
5 states that he does not dispute that the deferential standard
under § 2 2 5 4 ( d ) (1) applies.
Contrary to the parties' positions, it appears that the
state court decisions did not adjudicate the federal issues on
the merits. The court will determine the appropriate standard
with respect to each claim separately.
Discussion
The following issues remain in this case: (1) whether the
conversation between the prosecutor and the Chief Justice
concerning complaints about the trial judge, which lead to the
trial judge's recusal, and the recused judge's rulings on pending
motions constituted structural error in violation of due process;
(2) whether the trial court's exclusion of good character
evidence violated the compulsory process clause of the Sixth
Amendment; (3) whether delay in deciding the appeal violated due
process; (4) whether police misconduct occurred that interfered
with the preparation of Graf's case in violation of due process;
and (5) whether the trial court's decision to exclude privileged
matters from cross-examination of the state's expert witness
violated due process. The parties' motions for summary judgment
on these issues are resolved as follows.
6 I. Ex Parte Contact by the Prosecutor and Recusal of the Judge
As pled in his original petition and his first amended
petition, Graf claimed that "[a]n ex parte conversation between
the prosecutor and the Chief Justice of the Superior Court
concerning complaints the prosecutor had about the trial judge's
handling of Mr. Graf's case, which lead to the trial judge's
recusal after the first jury had been selected, violated Mr.
Graf's right to due process." In his second amended complaint,
Graf began with the same claim and then added "and the trial
judge's subsequent rulings on pending motions after his
disqualification, violated Mr. Graf's right to due process of law
warranting automatic reversal as a 'structural error.'"
For purposes of summary judgment, Graf separates the events
into two parts. First, he contends that the prosecutor's call to
the Chief Justice was a due process violation because it was an
inappropriate ex parte communication with the court and an
improper attempt to "judge shop." Second, Graf contends that the
trial judge's decision on Graf's motion, after his recusal, was a
violation of due process constituting structural error. The
respondent argues that the issue of structural error is not
exhausted or is procedurally defaulted, that the New Hampshire
Supreme Court's decision was not contrary to due process, and
that no structural error occurred.
7 A. Exhaustion
Graf concedes that the issue of structural error was not
raised until this proceeding. He argues, however, that the
structural error issue need not have been exhausted because it
only affects the remedy he seeks. He also contends that the
respondent has waived the exhaustion issue by failing to raise it
immediately in response to his second amended complaint.
In a habeas proceeding, the respondent will not be deemed to
have waived the exhaustion requirement "unless the State, through
counsel, expressly waives the requirement." § 2 2 5 4 ( b ) (3). Since
there has been no express waiver of the exhaustion requirement
here, no waiver has occurred.
Graf is also incorrect that his claim of structural error is
not subject to the exhaustion requirement. In order to be
entitled to habeas relief, Graf must show that he has exhausted
the remedies available in the state courts or that state process
is not available. See § 2254(b) (1). The purpose of the
exhaustion requirement is to " e n s u r e [] that state courts have the
opportunity fully to consider federal-law challenges to a state
custodial judgment before the lower federal courts may entertain
a collateral attack upon that judgment." Duncan v. W a l k e r , 533
U.S. 167, 178 (2001); accord Currie v. M a t e s a n z , 281 F.3d 261,
267 (1st Cir. 2002).
8 "Exhaustion obligations mandate that a habeas petitioner
present, or do his best to present, his federal claim to the
state's highest tribunal." Adelson v. DiPaola, 131 F.3d 259, 263
(1st Cir. 1997). Trial error, which is reviewed for prejudice,
and structural error, which is per se prejudicial, state
different violations based on different legal analyses. See,
e . g . . United States v. Moiic a - B a e z , 229 F.3d 292, 309 (1st Cir.
2000); Hardnett v. M a r s h a l l , 25 F.3d 875, 879 (9th Cir. 1994).
On appeal to the New Hampshire Supreme Court, Graf focused
on the prosecutor's conduct stating that "[a] long line of
federal cases recognize the fact that misdeeds on the part of
agents for the State can be so outrageous as to rise to the level
of a due process violation." S u p p . Br. at 3, Resp. Ex. G. The
cases Graf cites pertain to whether actions by the police or
other government agents may constitute a federal due process
violation. Although Graf discusses the circumstance of his
pending motion on the admissibility of the privileged materials,
which was decided by Judge O'Neill after recusal, he cites no
cases pertaining to judicial recusal or bias in support of that
argument. Graf also asserted that the prosecutor's conduct had
caused him extreme prejudice.
The New Hampshire Supreme Court characterized the claim as
follows:
9 The defendant argues that the county attorney's conduct in contacting the chief justice of the superior court constituted prosecutorial misconduct that was of such an egregious nature that his due process rights were violated. In addition, the defendant contends that his due process rights were violated when, inter a l i a , after recusing himself, the judge ruled on the defendant's motion seeking admissibility of privileged matters relating to the victim.
G r a f , 143 N.H. at 302. The court considered the due process
claims under New Hampshire law rather than federal law, ruling
that the federal constitution provided no greater protection than
the state constitution. See i d .
The court held that the prosecutor's conduct did not violate
Graf's due process rights. The court then reviewed the history
of the recusal issue, noting that the failure of Graf's counsel
to object initially to having the decision made by Judge O'Neill
after recusal and Graf's subsequent failure to raise an issue
about the decision being made after recusal in his motion for
reconsideration and motion to dismiss. The court concluded that
"if we assume that the defendant properly preserved for appeal
the issue of whether the recused judge's ruling upon the
defendant's motion violated due process, we conclude that the
defendant has not demonstrated any prejudice and we find no
violation of his due process rights." I d . at 303. The record
confirms, and Graf does not argue otherwise, that the issue of
structural error was not presented to the New Hampshire Supreme
10 Court. Therefore, the claim was not exhausted.
Ordinarily, the inclusion of an unexhausted claim along with
exhausted claims would require appropriate disposition of the
unexhausted claim before the case could proceed. See, e.g.,
Duncan v. W a l k e r , 533 U.S. 167, 182-83 (2001); Rose v. L u n d v , 455
U.S. 509, 510 (1982). Instead, the respondent urges the court to
dismiss the unexhausted claim pursuant to § 2 2 5 4 ( b ) (2). Under §
2 2 5 4 ( b ) (2), the court may deny an unexhausted claim on the merits
without the delay otherwise required in dealing with a mixed
petition. See Rudenko v. C o s t e l l o , 2002 WL 449468, at *4 (2d
Cir. March 20, 2002); Gattis v. S n y d e r , 278 F.3d 222, 237 (3d
Cir. 2002).
B. The Prosecutor's Call to the Chief Justice
Graf contends that the prosecutor's call was an
inappropriate ex parte communication with the court, which
amounts to structural error. He asserts that he is not raising
an issue of prosecutorial misconduct, the issue addressed by the
New Hampshire Supreme Court on appeal. Instead, Graf states:
"Mr. Graf's argument is that the ex parte communication, the
resulting recusal by Judge O'Neill, and the resulting p o s t
recusal acts by Judge O'Neill, constitute due process
violations." O b j . at 6. Although far from clear, it appears
11 that Graf's argument is that the prosecutor's call to the Chief
Justice was an ex parte communication with the court relating to
the merits of the case, which Graf contends was structural error,
requiring dismissal of the charges against him.2
Because the claim of structural error was not adjudicated on
the merits by the state court, the issue is reviewed de novo.
See F o r t i n i , 257 F.3d at 47; see also Daniel v. C o c k r e l l , 283
F.3d 697 (5th Cir. 2002) (publication pages not a v a i l a b l e ) . In
order to be entitled to habeas relief in this context, Graf must
show that "he is in custody in violation of the Constitution or
law or treaties of the United States." § 2254(a).
Graf cites Carroll v. President & Comm'rs of Princess A n n e ,
393 U.S. 175 (1968), in support of his claim. In C a r r o l l . the
Supreme Court held that an ex parte restraining order preventing
a political rally violated the First Amendment. See i d . at 181-
82. As such, Carroll appears to have no relevance to Graf's
claim, and Graf offers no analysis based on C a r r o l l .
Graf also cites Yohn v. L o v e , 76 F.3d 508 (3d Cir. 1996),
and Haller v. R o b b i n s , 409 F.2d 857 (1st Cir. 1969). In Y o h n ,
21he respondent understood Graf's claim as asserting prosecutorial misconduct in violation of due process, the issue addressed by the New Hampshire Supreme Court. As noted above, the structural error issue was not exhausted and is reviewed pursuant to § 2 2 5 4 (b) (2) .
12 after the trial judge ruled that a tape recorded conversation
with the defendant was inadmissible, during a recess, the
prosecutor called the chief justice of the Pennsylvania Supreme
Court to discuss the ruling. See Yohn, 76 F.3d at 512-13. The
chief justice called back and talked by telephone with the trial
judge and the prosecutor while defense counsel was present but
lacked a telephone. See i d . In response to the discussion, the
trial judge changed his ruling and allowed the tape recording
into evidence. See i d . at 514. The Third Circuit ruled that the
conversation, which involved the merits of the admissibility of
the tape without the participation of defense counsel, denied the
defendant's due process right to notice and an opportunity to be
heard. See i d . at 517. The court also concluded that the error
was not structural but instead required a showing of prejudice.
See i d . at 522-23.
In H a l l e r , "the prosecutor reported to the sentencing judge
in the absence of petitioner and his counsel a highly detrimental
hearsay statement as to petitioner's conduct." 409 F.2d at 858.
The First Circuit concluded that the ex parte communication by
the prosecutor with the sentencing judge, on the merits of the
sentencing decision, violated due process. See i d . at 859-60.
The resulting trial error was subject to the harmlessness
13 analysis.3 See i d . at 860.
The record does not support Graf's suggestion that the
prosecutor engaged in ex parte communication regarding the merits
of Graf's case, unlike the circumstances in Yohn and H a l l e r . In
addition, such communication, even if it had occurred, would
constitute trial error subject to harmlessness review, not
structural error. Since nothing in the record indicates that
Graf was prejudiced by the prosecutor's call to the Chief
Justice, or that the call might have influenced the outcome in
any way, no basis exists on that ground for granting habeas
relief.
To the extent Graf argues that the prosecutor's call to the
Chief Justice was a form of "judge shopping," that claim would
also fail. Graf cites no legal authority in support of that
theory. Courts that have considered the argument of judge
shopping by a prosecutor have concluded that any such error is
not structural and is subject to a showing of prejudice. See
United States v. Pearson, 203 F.3d 1243, 1262-63 (10th Cir.
2000); United States v. E r w i n , 155 F.3d 818, 825 (6th Cir. 1998).
3The harmless error analysis applicable to habeas corpus has changed since Haller was decided. S e e , e . g . , Calderon v. C o l e m a n , 525 U.S. 141, 145-46 (1998); California v. R o v , 519 U.S. 2, 4-5 (1997); O'Neal v. M c A n i n c h , 513 U.S. 432, 437 (1995); Brecht v. A b r a h a m s o n , 507 U.S. 619, 637 (1993) .
14 _____ No legal or factual basis exists in the record to conclude
that the prosecutor's call to the Chief Justice, which lead to
the recusal of the trial judge, is grounds to grant a writ of
habeas corpus. Therefore, that claim is denied pursuant to
§ 2 2 5 4 (b) (2) .
C. Decisions by the Trial Judge after Recusal
Graf invokes his federal due process right to a neutral and
detached trial judge and asserts that Judge O'Neill's rulings
after recusal constitute structural error necessitating reversal
without a consideration of prejudice. He cites Ward v.
M o n r o evi l l e , 409 U.S. 57 (1972) (holding that mayor serving as
judge was presumed to be biased due to revenue produced for town
by fines, fees, and costs); Chapman v. California. 386 U.S. 18
(1967) (establishing strict harmless error standard for federal
constitutional error); and Turney v. O h i o , 273 U.S. 510 (1927)
(holding that judge's personal pecuniary interest in imposing
fines supported presumption of b i a s ) .
To maintain his claim of structural error, however, Graf
must show that Judge O'Neill was either actually biased against
him when he ruled on the pending motions after recusal, or that
he had some basis for rendering a biased judgment that would
support a presumption of bias. See Vasquez v. H i l l e r v , 474 U.S.
15 254, 263 (1986); T u m e v , 273 U.S. at 532. The mere appearance of
partiality, without circumstances showing "a possible temptation
. . . to forget the burden of proof," is not enough. W a r d , 409
U.S. at 60; see also Cartalino v. W a s h i n g t o n , 122 F.3d 8, 11 (7th
The record shows no personal, financial, or other improper
interest that Judge O'Neill had in Graf's case, and Graf does not
argue that such interests existed. Instead, Graf relies on the
fact that Judge O'Neill recused himself and was disqualified from
making decisions in the case when he decided the pending motion,
apparently assuming that the fact of recusal establishes bias.
The record shows, however, that Judge O'Neill recused himself
because of a possible appearance of a lack of impartiality due to
a personal conflict perceived by the prosecutor.
Graf provides no factual support for presuming that Judge
O'Neill was biased against him.4 Even taking the facts in the
light most favorable to Graf, no trialworthy issue remains as to
whether Judge O'Neill was biased when he ruled on the pending
motion after recusal. Therefore, Graf's claim that Judge
O'Neill's decision on his pending motion constituted structural
4In addition, after discussing the recusal issue with counsel and indicating that he would likely recuse himself. Judge O'Neill asked counsel if they objected to having him decide the pending motions and they told him that they did not object.
16 error is denied on the merits pursuant to § 2254(b) (2)
II. Character Evidence
Graf contends that his due process rights were violated by
the trial court's decision to exclude evidence of his good
character. The court previously ruled that Graf procedurally
defaulted a due process claim based on the exclusion of character
evidence. See Order, Nov. 1, 2000, at 6. The court also ruled
that Graf had exhausted his Sixth Amendment claim that the trial
court violated the Compulsory Process Clause by excluding the
character evidence. Graf, however, does not pursue the Sixth
Amendment claim either in support of his own motion for summary
judgment or in opposition to the respondent's motion.5
The New Hampshire Supreme Court decided the character
evidence issue under state law, holding that the New Hampshire
Constitution is at least as protective as the federal
constitution of the asserted Sixth Amendment right. See Graf,
143 N.H. at 296. Therefore, this court's review is de novo. See
F o r tini, 257 F.3d at 47.
"Under the Sixth Amendment Compulsory Process Clause,
5Although Graf may have intended to abandon his Sixth Amendment claim, the court will address the claim as an unopposed motion for summary judgment by the respondent.
17 criminal defendants generally have the right to present
'competent, reliable . . . exculpatory evidence.'" D i Benedetto,
272 F.3d at 7-8 (quoting Crane v. K e n t u c k y , 476 U.S. 683, 690
(1986)). The right to present evidence is not unlimited,
however. See Chambers v. M i s s i s s i p p i , 410 U.S. 284, 302 (1973) .
"The accused does not have an unfettered right to offer testimony
that is incompetent, privileged, or otherwise inadmissible under
the standard rules of evidence." Taylor v. Illinois, 484 U.S.
400, 410 (1988). States have broad latitude to adopt rules of
evidence to govern criminal prosecutions. See i d .
Graf "sought to introduce testimony, through opinions and
specific instances of conduct as testified to by other witnesses,
to show that: (1) he was not the type of person who would engage
in aggravated felonious sexual assault; and (2) he was not the
type of person who would take advantage of children." G r a f , 143
N.H. at 296. The trial court granted the state's motion in
limine to preclude the evidence, under New Hampshire Rule of
Evidence 4 0 4 ( a ) (1), and the New Hampshire Supreme Court affirmed.
New Hampshire Rule 4 0 4 ( a ) (1) provides: "Evidence of a
person's character or a trait of character is not admissible for
the purpose of proving that the person acted in conformity
therewith on a particular occasion, except: (1) Character of
Accused - - Evidence of a pertinent trait of character offered by
18 an accused . . . ."6 As the trial court discussed, general
evidence of Graf's good character and of the absence of
pedophilia tendencies does not tend to disprove the charges
against him because sexual assault on a child is not performed in
public nor is it likely to be known by others. As the supreme
court concluded, the trial court's ruling that the evidence did
not relate to a pertinent trait of character was in conformity
with the rule.7
The record does not show that the trial court's ruling
prevented Graf from presenting admissible and exculpatory
evidence in violation of the Compulsory Process Clause.8 The
respondent is entitled to summary judgment on Graf's Sixth
Amendment claim pertaining to the exclusion of character
evidence.
6Graf makes no argument that Rule 404(a) (1), which is substantially similar to Federal Rule of Evidence 4 0 4 ( a ) (1), is either outmoded, arbitrary, or not a legitimate evidentiary limitation. See United States v. Scheffer, 523 U.S. 303, 308 (1998) .
7The supreme court decided the application of Rule 404(a) (1) in the context of Graf's evidentiary argument on appeal.
8Further, even if a constitutional violation occurred, Graf has not shown that any error had a substantial and injurious effect on the jury's verdict in his case. See Brecht v. A b r a h a m s o n , 507 U.S. 619, 637 (1993)
19 III. Delay in Deciding the Appeal
Graf contends that the more than three years that elapsed
between his sentencing and the decision on his appeal constitutes
a due process violation. Graf's state habeas petition was
decided after the New Hampshire Supreme Court issued its decision
affirming Graf's conviction. The state habeas court ruled that
the issue was, therefore, moot. Since the issue was not
adjudicated on the merits, de novo review applies once again.
The Supreme Court has not clearly recognized a due process
right to a speedy appellate process. S e e , e . g . , Codv v.
H e nderso n , 936 F.2d 715, 718 (2d Cir. 1991); Dias v. M a l o n e y , 156
F. Supp. 2d 104, 136 (D. Mass. 2001). Lower federal courts that
have inferred a due process right to a timely resolution of the
appellate process have required a showing of prejudice. See,
e . g . . United States v. Luciano-Mosauera, 63 F.3d 1142, 1158 (1st
Cir. 1995); Harris v. C h a m p i o n , 15 F.3d 1538, 1559 (10th Cir.
1994); Latimore v. Spe n c e r , 994 F. Supp. 60, 67 (D. Mass. 1998).
When a petitioner's conviction has been affirmed, even after a
lengthy delay, he cannot show prejudice unless the delay affected
the appeal process. See Luciano-Mosquera, 63 F.3d at 1158; C o d v ,
936 F.2d at 720. Graf has not provided any evidence that his
appeal was tainted by the delay in the appellate process.
20 IV. Police Misconduct
Graf contends that the police chief of the town where the
incidents took place directed the development of the case against
him and that the chief was biased against him. Graf argues that
the chief interfered with his defense by instructing witnesses
not to talk to defense investigators. The issue of police
misconduct apparently was first raised in a pretrial motion to
dismiss, which was denied due to a lack of evidence of
interference with his preparation for trial. Graf did not pursue
the issue on appeal.
Graf raised the police misconduct issue again in his state
habeas proceeding, claiming newly discovered evidence concerning
the police chief's alleged statement about Graf to a third party.
The state habeas court ruled as follows:
Finally, the petitioner has raised a newly discovered claim concerning a statement made by the former chief of police in the town where the crimes occurred. However, the State argues that the former chief was not involved in the petitioner's case, another officer investigated and testified at trial, and that there was no plot afoot against the petitioner. The court finds that the petitioner has not met its [sic] burden of proving, by a preponderance of the evidence, that reliable evidence of this allegation exists.
Graf v. Warden, 99-E-377, at *4 (N.H. Sup. C t . Dec. 10, 1999),
Resp. Ex. J.
Without addressing the state court's factual finding, Graf
21 continues to argue that his trial was unfair due to the actions
of the allegedly biased police chief. In support of his theory,
Graf offers a copy of a note from one "Gary Crabtree" to Graf's
counsel. Crabtree states that he believes the charges and
evidence against Graf were manufactured by the chief because he
heard the chief say in reference to Graf, "I'm going to get that
son of a bitch." Pet. Ex. N. Graf submitted the same evidence
to the state habeas court, which ruled that the evidence was
insufficient to demonstrate police misconduct.
" [A] determination of a factual issue made by a State court
shall be presumed to be correct. The applicant shall have the
burden of rebutting the presumption of correctness by clear and
convincing evidence." § 2254(e) (1) . Since Graf has not carried
his burden of rebutting the presumption in favor of the state
court's finding that he failed to provide reliable evidence of
police misconduct, the respondent is entitled to summary judgment
on the police misconduct claim.
V . Decision to Prohibit Use of Privileged Matters During _____ Cross-Examination of State's Expert Witness
Graf contends that the trial court's decision not to allow
his counsel to introduce privileged information during his cross-
examination of the state's expert witness violated Graf's federal
22 due process rights.9 Graf presented the federal due process
issue to the New Hampshire Supreme Court, but the court decided
the issue under the state constitution, without reference to
federal constitutional law. See Graf, 143 N.H. at 300-01.
Therefore, the de novo standard of review applies. See Fortini,
257 F .3d at 47.
"The right of an accused in a criminal trial to due process
is, in essence, the right to a fair opportunity to defend against
the State's accusations. The rights to confront and cross-
examine witnesses and to call witnesses in one's own behalf have
long been recognized as essential to due process." Chambers, 410
U.S. at 294. The right, however, is not absolute, and states
retain "broad latitude" in establishing evidentiary rules. See
S cheffer . 523 U.S. at 308. Therefore, a state evidentiary rule
does not violate due process "unless it is 'arbitrary or
disproportionate' and 'infringe[s] upon a weighty interest of the
accused.'" For t i n i , 257 F.3d at 46 (quoting S c h e f f e r , 523 U.S.
at 308).
During the criminal trial, the state called an expert
witness to testify about delayed disclosure by child victims of
9Although Graf raised both due process and Sixth Amendment confrontation clause rights on appeal to the New Hampshire Supreme Court, he has pursued only the due process issue for habeas relief here.
23 sexual abuse. See G r a f , 143 N.H. at 300. The expert's testimony
was presented through a series of hypothetical questions. See
id. Defense counsel was permitted to ask hypothetical questions,
during cross-examination, which incorporated some facts from
privileged matters that were not in evidence. See i d . In
particular, defense counsel asked questions that included the
following information:10
[1] hearsay statements of the victim to his therapist that he had engaged in what he believed to be inappropriate sexual contact with his younger brother and the resulting punishments he had received from his parents; and [2] that the victim did not disclose the allegations in question to his therapist at the time the acts were alleged to have occurred, notwithstanding the fact that he was disclosing the perceived inappropriate contact with his brother.
Gra f . 143 N.H. at 300. The trial court did not permit defense
counsel to introduce substantive evidence to support the
hypothetical q u e s t i o n s .
On appeal, the New Hampshire Supreme Court concluded that
the privileged information would not have helped Graf's case.
The court noted that in response to defense counsel's
hypothetical questions which included the privileged information.
10The court did not consider the third subject of excluded evidence, the victim's mother's statements, because Graf did not contest the trial court's ruling as to that evidence, and therefore, that issue is procedurally defaulted. See Graf, 143 N.H. at 300.
24 the expert witness testified "that his first impression was that
the victim probably would not disclose the abuse." G r a f , 143
N.H. at 301. Therefore, the court concluded, "even if the trial
judge had permitted the defendant to admit substantive evidence
on the issues in question, the expert's opinion was that such
information would lead him to believe that the victim would be
less likely, as opposed to more likely to disclose the abuse--a
fact that would contradict the theory of defense at trial." Id.
In this action, Graf argues that the privileged matters that
were excluded would show that the boy had other sources of
advanced sexual knowledge, that he had a trusting relationship
with his therapist to whom he had made other similar disclosures,
that he was in counseling in part because of lying, and that he
did not mention the charged assaults until almost a year after
they occurred. Graf also submits the opinion of a psychologist.
Dr. Eric G. Mart, to bolster his argument. The respondent
asserts that Graf did not raise the issues of advanced sexual
knowledge or lying in the state court proceedings, that the state
supreme court properly determined that exclusion of the
privileged matters was not prejudicial, and that the opinion of
Dr. Mart should not be considered.
This court may expand the record to include "additional
materials relevant to the determination of the merits of the
25 petition."11 Rule 1 , Rules Governing § 2254 Cases. Graf
previously filed a motion to expand the record, seeking in part
to include an opinion by an expert witness that attacked the
opinions of the state's expert witness. See Order, Feb. 21,
2001. The court declined to expand the record to include the
opinion because it was not relevant to the issue of the
privileged information.
With respect to the new opinion by Dr. Mart, Graf simply
submitted the opinion with his motion for summary judgment. He
did not move to expand the record, as is required by Rule 7.
Therefore, Dr. Mart's opinion is not part of the record before
the court and will not be considered.
In addition, even if the opinion had been offered in an
appropriate motion, the motion would be denied, because Dr.
Mart's opinion, like the previously offered opinion, primarily
attacks the opinion of the state's expert witness. To the extent
that Dr. Mart's opinion addresses privileged matters at all, he
discusses the boy's cognitive abilities, not the privileged
matters that were at issue at trial.
Graf claims that the exclusion of the evidence left the jury
11As the issue was not raised, the court does not consider the relationship between Rule 7 and § 2254(e) (2) . S e e , e . g . , Bovko v. P a r k e . 259 F.3d 781, 790 (7th Cir. 2001); Hollowav v. Horn, 161 F. Supp. 2d 452, 510 n.49 (E.D. Pa. 2001) .
26 with an inaccurate picture of the boy and of why he might have
delayed disclosing the abuse. The issue before the court,
however, is whether a due process violation occurred when the
trial court excluded from cross-examination the information that
the boy had disclosed to his therapist inappropriate sexual
contact with his brother and did not disclose the charged abuse
for almost a year. The state's expert gave his opinion that the
referenced privileged information would not change his view and
that the information actually supported his opinion that the boy
would have delayed his disclosure of the abuse. The supreme
court concluded that because the excluded information would not
have affected the expert's opinion, no prejudice occurred. Graf
has not shown that he had a weighty interest in admitting the
evidence or that the trial court's decision was arbitrary or
disproportionate in relation to such an interest.
Therefore, the respondent is entitled to summary judgment on
the issue of whether the privileged matters were excluded in
violation of due process.
27 Conclusion
For the foregoing reasons, the petitioner's motion for
summary judgment (document no. 55) is denied. The respondent's
motion for summary judgment (document no. 62) is granted.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
Joseph A. DiClerico, Jr. United States District Judge
April 12, 2002
cc: Michael J. Sheehan, Esquire Neals-Erik W. Delker, Esquire