Grimard v . Warden 03-CV-392-SM 01/31/06 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Maurice Grimard, Petitioner
v. Civil N o . 03-cv-392-SM Opinion N o . 2006 DNH 011 Bruce W . Catell, Warden, New Hampshire State Prison, Respondent
O R D E R
Maurice Grimard, currently incarcerated in the New Hampshire
State Prison and appearing pro s e , petitions for a writ of habeas
corpus. 28 U.S.C. 2254. Before the court is respondent’s motion
for summary judgment. Petitioner objects. For the reasons
given, respondent’s motion for summary judgment is granted.
The Legal Standard
Passage of the Anti-Terrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), has significantly
limited the power of federal courts to grant habeas corpus relief
to state prisoners. A federal court may disturb a state
conviction only when: (1) the state court 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,” 28 U.S.C. § 2254(d)(2); or (2) the state court’s
resolution of the issues before it “resulted in a decision that
was contrary t o , or involved an unreasonable application o f ,
clearly established Federal law, as determined by the Supreme
Court of the United States,” 28 U.S.C. § 2254(d)(1); see also
Williams v . Taylor, 529 U.S. 3 6 2 , 399 (2000).
There is a distinction between decisions that are “contrary
to” clearly established federal law and those involving an
“unreasonable application” of federal law:
Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.
Williams, 529 U.S. at 412-13.
2 Background
After a four-day trial in the New Hampshire Superior Court,
Maurice Grimard was convicted on three counts of selling cocaine,
one count of possessing cocaine with intent to sell, and one
count of conspiracy to sell cocaine. For the possession and
conspiracy convictions, petitioner was sentenced to two terms of
not more than 15 years, nor less than 7 1/2 years, to be served
concurrently. For the three convictions for selling cocaine, he
was sentenced to three terms of not more than 20 years, nor less
than 10 years, to be served concurrently with one another but
consecutively to the sentences for possession and conspiracy.
The three cocaine sales took place on May 1 9 , June 2 , and
June 9, 1998. Grimard made all three sales to an undercover
police officer, Detective Ronald Dickerson of the New Hampshire
Drug Task Force. Dickerson was introduced to Grimard by a
confidential informant, Paul Vachon, on May 1 3 , 1998. After May
1 3 , Dickerson had only one contact with Vachon (a telephone
call), and Grimard was not charged with any conduct involving
Vachon. Grimard’s co-conspirator was Alfredo Vasquez (or some
3 other unknown individual). Neither the State nor petitioner
called Vachon as a witness at petitioner’s trial.
According to documents from the Drug Task Force’s
investigative file on Vachon,1 he was under investigation as
early as November 1997. He remained under investigation until he
was arrested, on May 1 , 1998, by Agent Mike Connolly,
Investigator Kevin McCarthy, and Det. John Boles, based upon
complaints sworn out by Det. Dickerson. Vachon was charged with
five counts of selling cocaine (on October 1 , 1 4 , and 3 0 , 1997,
and March 4 and April 2 8 , 1998) and one count of possessing
cocaine with intent to sell (on May 1 , 1998). In a negotiated
disposition, Vachon pled guilty to one count of selling cocaine
and one count of possessing cocaine with intent to sell. On
February 2 3 , 2000, he was given a deferred sentence of five to
twenty years on the former conviction and a consecutive suspended
sentence of three and one-half to seven years on the later
conviction.
1 The investigative file was not produced during the state prosecution. After Grimard was convicted, he obtained the Vachon file under the New Hampshire Right-to-Know law.
4 In his petition, Grimard asserts that he is being
incarcerated unconstitutionally because his conviction resulted
from:
(1) the prosecution’s failure to disclose exculpatory evidence, in violation of his right to due process, under Brady v . Maryland, 373 U.S. 83 (1963);
(2) the prosecution’s introduction of perjured testimony, in violation of his right to due process, under Albright v . Oliver, 510 U.S. 266 (1994);
(3) the prosecution’s failure to disclose an agreement between the State and a confidential informant, in violation of his right to due process, under Giglio v . United States, 405 U.S. 150 (1972);
(4) prosecutorial misconduct, in the form of misrepresenting and/or failing to disclose an agreement between the State and a confidential informant, in violation of his right to due process, under Darden v . Wainwright, 477 U.S. 168 (1986);
(5) the erroneous dismissal of his state habeas corpus petition based upon a ruling that he waived ineffective assistance of counsel claims arising from his trial attorney’s failure to raise a double jeopardy objection;
(6) the erroneous dismissal of his state habeas corpus petition based upon a ruling that he waived ineffective assistance of counsel claims arising from his trial attorney’s failure to object to the effective amendment of the indictment during jury instructions;
5 (7) the erroneous dismissal of his state habeas corpus petition based upon a ruling that he waived his right to object to a disproportionate and illegal sentence, in violation of his Eighth Amendment rights, under Harmelin v . Michigan, 501 U.S. 957 (1991); and
(8) the ineffective assistance of his trial counsel.
Discussion
A . Ground One
In his first ground for relief, petitioner asserts that his
conviction was obtained as a result of the State’s failure to
produce exculpatory evidence during discovery, that i s , the Drug
Task Force’s investigative file on Paul Vachon. According to
petitioner, information from that file would have allowed him to
impeach the State’s key witness, Det. Dickerson, and more
effectively mount an entrapment defense. Respondent moves for
summary judgment on grounds that the evidence is not exculpatory.
Petitioner first raised this issue in a pro se Motion to
Vacate Convictions and Bar Reprosecution which was denied in a
margin order dated July 1 9 , 2001. In an order following
reargument of that motion, by counsel, Judge Lynn reaffirmed his
denial of the motion and explained his reasoning:
6 The notion that anything contained in the reports related to the investigation of Paul Vachon could in any way be viewed as exculpatory of the defendant is chimerical. As the State aptly points out, assuming the “source” for drugs Vachon was talking about in his pre-May 1 2 , 1998 meetings with the police (when Vachon was a target, not someone working with the police) was in fact the defendant rather than Vachon’s other source, the substance of those discussions could not possibly be regarded as exculpatory or in any way lending the slightest credence to an entrapment defense. The fact that the defendant, as a conceded (under this theory) source for drugs “did not want to meet anyone new” or was “feeling warm” (i.e., concerned that law enforcement might be on to him) is inculpatory, not exculpatory, since it shows that the defendant had a predisposition to sell drugs to others and was only concerned that any new buyer he might meet would turn out to be a police officer.
By order dated December 1 8 , 2001, the New Hampshire Supreme Court
summarily affirmed Judge Lynn’s denial of petitioner’s motion to
vacate.
Under Brady, “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.”
373 U.S. 8 3 , 87 (1963). “[T]he materiality standard for Brady
claims is met when ‘the favorable evidence could reasonably be
7 taken to put the whole case in such a different light as to
undermine confidence in the verdict.’” Banks v . Dretke, 540 U.S.
668, 698 (2004) (quoting Kyles v . Whitley, 514 U.S. 419, 435
(1995)). Confidence in the verdict is undermined by a showing
that with the suppressed evidence, there is a “reasonable
probability of a different result.” Banks, 540 U.S. at 699.
The evidence petitioner characterizes as exculpatory Brady
material consists, generically, of the following: police reports
written by Det. Dickerson; approvals for one-party intercepts
granted by Brian Graf and Jane Young of the New Hampshire
Attorney General’s office; Drug Enforcement Agency reports
written by Special Agent Michael Connolly; reports from a PEN
register placed on Vachon’s telephone; and miscellaneous
surveillance reports. Substantively, those records document:
(1) Det. Dickerson’s March 4 , April 1 , and April 2 , 1998,
requests to tape record telephone conversations between himself
and Vachon; (2) telephone conversations between Det. Dickerson
and Vachon on March 3 and 4 , April 1 , 7 , and 9, 1998; (3) Det.
Dickerson’s purchases of cocaine from Vachon on March 4 and April
2 9 , 1998; (4) Det. Dickerson’s unsuccessful attempt to have
8 Vachon set up a meeting with an unnamed supplier on April 2 8 ,
1998; (5) Michael Connolly’s observation of an April 2 9 , 1998,
meeting between Vachon and a person that Special Agent Yerrington
identified as Grimard; (6) Det. Ganley’s observation of the April
29 meeting; (7) Investigator Kevin McCarthy’s April 3 0 , 1998,
discovery that a telephone number on Vachon’s PEN register
belonged to Grimard; (8) Vachon’s May 1 , 1998, arrest, after
which Vachon identified Grimard as his source of cocaine; (9) the
six criminal complaints against Vachon; and (10) the ultimate
disposition of the charges against Vachon.
In petitioner’s view, that evidence is exculpatory because
it supports his entrapment defense and, had it been disclosed
prior to trial, would have assisted him and his counsel in
devising trial strategy and deciding whether or not to call
Vachon as a witness. That argument was resolved against
petitioner on the merits in the state court. Accordingly, the
deferential AEDPA standard of review applies. Judge Lynn’s
determination that the evidence was not exculpatory is neither
contrary t o , nor an unreasonable application o f , Supreme Court
9 precedent. Therefore, respondent is entitled to judgment as a
matter of law on Ground One.
B . Ground Two
In his second ground for relief, petitioner asserts that his
conviction was obtained as a result of the State’s solicitation
o f , and failure to correct, perjured testimony from Detective
Dickerson. In particular, petitioner claims that Det. Dickerson
perjured himself by testifying that the State first learned about
him on May 1 2 , 1998. That testimony was perjury, in petitioner’s
view, because the discovery material allegedly suppressed by the
State (i.e., the Vachon file) demonstrates that Vachon had been
cooperating with law enforcement officers since December 1997,
and that petitioner had been approached by Vachon several times
prior to May 1 2 , at Det. Dickerson’s behest, and had declined to
sell Vachon any drugs. Respondent moves for summary judgment on
grounds that Det. Dickerson did not commit perjury and that, even
if he was incorrect about when he first learned petitioner’s
name, any such mistake was entirely inconsequential.
10 Petitioner first raised the issue identified in Ground Two
in his pro se motion to vacate. When that motion was reargued,
counsel did not pursue the perjury issue and, as a result, Judge
Lynn did not address it in his order of September 2 8 , 2001.
Petitioner also did not raise it in his notice of appeal to the
New Hampshire Supreme Court. Petitioner raised the argument
again, in a May 1 5 , 2004, petition for a writ of habeas corpus,
his second such petition in the state courts. That petition was
denied in an order dated July 9, 2004, in which Judge Hicks
found, as a factual matter, that “the first time the petitioner’s
name came to the attention of law enforcement agents was at the
debriefing meeting subsequent to M r . Vachon’s arrest in May,
1998.” Judge Hicks further found “no evidence of perjury by
Detective Dickerson.” By order dated September 1 5 , 2004, the New
Hampshire Supreme Court summarily affirmed Judge Hicks’s denial
of Grimard’s second state habeas petition.
“[I]t is established that a conviction obtained through use
of false evidence, known to be such by representatives of the
State, must fall under the Fourteenth Amendment.” Napue v .
Illinois, 360 U.S. 2 6 4 , 269 (1959) (citations omitted). “The
11 same result obtains when the State, although not soliciting false
evidence, allows it to go uncorrected when it appears.” Id.
(citations omitted). Here, however, Judge Hicks determined, as a
factual matter, that Det. Dickerson did not perjure himself, and
that determination was not unreasonable.
At trial, Det. Dickerson testified, on direct examination,
in the following way:
Q How did that investigation [into Maurice Grimard] come about, Detective Dickerson?
A Through an informant.
Q And who was that informant?
A Paul Vachon.
Q How did you meet the defendant?
A Paul Vachon introduced me to him.
Q Did you have contact with the defendant on May 18th of 1998?
A Yes, I did.
Q What was the nature of that contact?
A A phone conversation.
Q How did that come about?
A I paged the defendant.
12 Q What was your purpose in paging the defendant?
A I was going to order up two ounces of cocaine.
Q When we talk about May 18th, if we use May 18th as the starting point, after May 18th was Paul Vachon ever with you when you were making contact with the defendant?
A N o , at that point in the investigation he was out of i t .
(Trial Transcript, Day 1 (hereinafter “Tr. I”) at 90-91.) Under
cross-examination, Det. Dickerson offered the following testimony
regarding his involvement with and knowledge of Grimard:
Q Yet actually your personal involvement in this case really commenced, insofar as it involved Mr. Grimard, on May 12th, right?
A That is correct. That’s correct.
(Tr. II at 25.) And on the same topic, Det. Dickerson testified
on redirect examination:
Q We had some discussion on your cross about your – the first time you heard the defendant’s name. What date was that?
A The first time I heard his name?
Q Yes.
A May 12th.
13 (Tr. II at 180.)
The earliest date on which petitioner’s name appears in the
Vachon file is April 2 9 , 1998. In reports bearing that date,
Special Agent Connolly and Det. Ganley stated that Special Agent
Yerrington identified a person meeting with Vachon as Grimard.
In a report dated April 3 0 , Investigator McCarthy stated that
when he called a particular telephone number from Vachon’s PEN
register, a person on the other end answered “This is Mo.” In a
report dated May 1 , 1998, Det. John Boles indicated that Vachon,
after his arrest, identified Grimard as his source for cocaine.
And at the hearing on petitioner’s second state habeas petition,
Det. Boles testified that Det. Dickerson was not present at
Vachon’s post-arrest debriefing. Finally, petitioner has
produced no police reports written by Det. Dickerson before May
12 that contain petitioner’s name.
Based upon the established record, it was hardly
unreasonable for Judge Hicks to determine, as a factual matter,
that Det. Dickerson did not commit perjury. While the Vachon
file suggests that some members of the Drug Task Force knew
14 petitioner’s name as early as April 2 9 , there is no evidence to
suggest that Det. Dickerson knew petitioner’s name before May 1 2 .
And, importantly, Dickerson never testified about what the Task
Force knew collectively; he testified based upon his own personal
knowledge. Because Judge Hicks did not unreasonably determine
that Det. Dickerson did not testify untruthfully, respondent is
entitled to judgment as a matter of law on Ground Two.
C . Ground Three
In his third ground for relief, petitioner asserts that his
conviction was obtained as a result of the State’s false
representation, during pre-trial hearings, that Paul Vachon had
not been offered a deal by the State. Petitioner’s claim rests
upon Vachon’s February 2000 sentencing as well as the State’s
decision to nol pros four charges of selling cocaine. Vachon was
not sentenced to imprisonment. Petitioner argues that had he
known of the alleged deal with Vachon, he would have called
Vachon as a witness to support his entrapment defense.
Respondent moves for summary judgment on grounds that
petitioner has produced no evidence that there was a deal with
15 Vachon prior to petitioner’s trial and that, even if there was,
disclosure of it would not have resulted in a different outcome
at trial because, in contrast to the factual situation in Giglio
v . United States, 405 U.S. 150 (1972), Vachon was not a witness.
Petitioner first raised the issue identified in Ground Three
in his pro se motion to vacate. In an order following reargument
of that motion, by counsel, Judge Lynn reaffirmed his denial of
the motion and explained his reasoning:
In addition, with respect to the alleged “deal” between the State and Vachon, even if it were true that there was such a “deal” which the State failed to disclose, the defendant fails to articulate how such [a] deal would have been relevant to any issue other than Vachon’s credibility. And since Vachon did not testify at the trial, his credibility was not at issue.
By order dated December 1 8 , 2001, the New Hampshire Supreme Court
summarily affirmed the denial of petitioner’s motion to vacate.
In Giglio, the Supreme Court held that a criminal defendant
was entitled to a new trial when the government “failed to
disclose an alleged promise made to its key witness that he would
not be prosecuted if he testified for the Government,” id. at
16 151, and “the Government’s case depended almost entirely on [the
witness’s] testimony,” id. at 154.
Petitioner presented the state court with no evidence of a
Vachon deal; he offered only his own surmise that such a deal
must have been in place, given the sentence that Vachon received.
But the dispositive point is that identified by Judge Lynn -
Vachon did not testify, so Giglio doesn’t apply. Judge Lynn’s
ruling was neither contrary to nor an unreasonable application of
Giglio. Accordingly, respondent is entitled to judgment as a
matter of law on Ground Three.
D. Ground Four
In his fourth ground for relief, petitioner asserts that his
conviction was obtained as a result of prosecutorial misconduct,
in the form of suppressing discovery material, suborning (and
failing to correct) perjury, and misrepresenting the deal the
State gave Vachon. Ground Four i s , in form and substance,
derivative of the first three asserted grounds. Thus, respondent
is entitled to judgment as a matter of law on Ground Four.
17 E . Ground Five, Six, and Seven
In his fifth, sixth, and seventh grounds for relief,
petitioner merely asserts that New Hampshire Superior Court Judge
(Mohl, J.) got it wrong when he determined that, under state law,
petitioner’s ineffective assistance and unlawful sentence claims
had been procedurally defaulted. However,
[o]rdinarily a federal court may not issue a writ [of habeas corpus] “based on a perceived error of state law,” although there may be an exception “if an error of state law could be sufficiently egregious to amount to a denial of equal protection or of due process of law.”
Brown v . Maloney, 267 F.3d 3 6 , 44 (1st Cir. 2001) (quoting Pulley
v . Harris, 465 U.S. 3 7 , 41 (1984); citing Barclay v . Florida, 463
U.S. 939, 957-58 (1983) (plurality opinion) (“[M]ere errors of
state law are not the concern of this Court unless they rise for
some other reason to the level of a denial of rights protected by
the United States Constitution.”)). Here, petitioner does not
assert that Judge Mohl’s allegedly erroneous application of the
state’s procedural default rule, see Avery v . Cunningham, 131
N.H. 138 (1988), denied him equal protection or due process.
Thus, he has failed to raise claims that are cognizable in the
18 context of a federal habeas petition. Accordingly, respondent is
entitled to summary judgment on grounds five, six, and seven.
F. Ground Eight
In his eighth ground for relief, petitioner asserts that his
conviction was obtained as a result of the ineffective assistance
of counsel. Specifically, he contends that his counsel was
prevented from performing effectively by the misconduct of the
prosecutor, and also performed ineffectively by failing to raise
the issue of double jeopardy and by failing to object when the
trial judge constructively amended the indictment against him.
In his first state habeas petition, petitioner contended
that he had received ineffective assistance of counsel because
his trial attorney failed to object to the jury instructions on
two grounds: double jeopardy and impermissible amendment of the
indictment. Petitioner did not raise the issue of ineffective
assistance in either his direct appeal or his post-appeal motion
to vacate the conviction. Similarly, he raised no claim, in
either proceeding, based upon double jeopardy or impermissible
amendment of the indictment.
19 As noted earlier Judge Mohl, relying on Avery v . Cunningham,
131 N.H. 1 3 8 , 143 (1988) (“New Hampshire has adopted the common
law rule that habeas corpus is not a substitute for an appeal.”)
(citation omitted), denied relief based upon petitioner’s failure
to raise the issues identified in his habeas petition in either
his direct appeal or his motion to vacate his convictions. It is
not clear from Judge Mohl’s order whether the procedural bar was
imposed as a result of Grimard’s failure to raise claims
concerning double jeopardy and amendment of the indictment, or
his failure to raise ineffective assistance claims. Because
Grimard framed his state habeas claim in terms of ineffective
assistance it is likely that Judge Mohl applied the state’s
procedural default rules to the claims as raised - that i s , to
the ineffective assistance of counsel claims. Petitioner
appealed the denial of his habeas petition, and the New Hampshire
Supreme Court declined the appeal in an order dated August 1 ,
2003.
A state court’s determination that federal claims have been
procedurally defaulted constitutes an “independent and adequate
20 state ground” for dismissal that ordinarily bars federal review,
absent a showing of “cause” for the default and prejudice:
Generally, habeas review is precluded when a state court reaches its decision on an independent and adequate state law ground. See Coleman v . Thompson, 501 U.S. 7 2 2 , 729 (1991). A state court’s decision to find a forfeiture . . . is an independent and adequate ground for decision so long as the state court consistently applies its [forfeiture] rule and has not waived it in the particular case by basing the decision on some other ground. See Burks v . Dubois, 55 F.3d 712, 716 (1st Cir. 1995). . . .
Horton v . Allen, 370 F.3d 7 5 , 80-81 (1st Cir. 2004) (parallel
citations omitted).
Here, there is a problem with the state’s procedural default
finding. New Hampshire does not consistently apply the Avery
rule to ineffective assistance of counsel claims. See Merritt v .
Warden, N o . Civ. 03-311-JD, 2004 WL 443363, at *3 (D.N.H. Mar.
1 1 , 2004) (citing Humphrey v . Cunningham, 133 N.H. 7 2 7 , 732-33
(1990); Avery, 131 N.H. 1 3 8 , 144-45; State v . Riendeau, Nos. 98-
S-329 and 98-S-1316, 2001 WL 34013567, at 4 n.4 (N.H. Super. C t .
Nov. 1 4 , 2001)). For example, in Humphrey, decided two years
after Avery, the New Hampshire Supreme Court rejected the State’s
21 argument that a habeas petitioner had procedurally defaulted his
ineffective assistance claim by failing to raise it on appeal.
Humphrey, 133 N.H. at 733. Because New Hampshire does not
consistently apply the Avery rule to ineffective assistance
claims, Judge Mohl’s procedural default ruling does not, for
federal habeas purposes, constitute an independent and adequate
state law ground warranting dismissal of petitioner’s claims.
Consequently, petitioner is entitled to raise his federal
ineffective assistance claims here.
“A criminal defendant claiming a Sixth Amendment ineffective
assistance violation must establish that (1) ‘counsel’s
representation fell below an objective standard of
reasonableness,’ and (2) ‘a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.’” Smiley v . Maloney, 422 F.3d 1 7 , 20
(1st Cir. 2005) (quoting Strickland v . Washington, 466 U.S. 6 6 8 ,
694 (1984); citing Mello v . DiPaulo, 295 F.3d 1 3 7 , 142 (1st Cir.
2002)).
22 Counsel’s failure to raise a particular issue constitutes
ineffective assistance only when the issue “was so obvious and
promising that no competent lawyer could have failed to pursue
it.” Cirilo-Munoz v . United States, 404 F.3d 5 2 7 , 530 (1st Cir.
2005) (quoting Arroyo v . United States, 195 F.3d 5 4 , 55 (1st Cir.
1999)). In assessing objective reasonableness, the standard of
review is highly deferential. A court “must indulge a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that i s , the [petitioner]
must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.”
Strickland, 466 U.S. at 689. Thus, to prevail on his ineffective
assistance claims, petitioner must establish that the alleged
errors by counsel were “so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Smullen v . United States, 94 F.3d 2 0 , 23 (1st
Cir. 1996) (quoting Strickland, 466 U.S. at 6 8 7 ) . Petitioner’s
trial counsel’s performance was not objectively unreasonable.
23 1 . Double Jeopardy
Petitioner first claims that his trial counsel provided
ineffective assistance by failing to object to the jury
instructions on double jeopardy grounds. Specifically,
petitioner argues that each of his convictions for selling
cocaine constitutes a successive punishment for the same conduct
that supported his conspiracy conviction. In other words, he
argues that sale of cocaine is a lesser-included offense of
conspiracy to sell cocaine, and that his attorney provided
ineffective assistance by failing to raise that issue at trial.
Petitioner is wrong. Counsel was not required to present
incorrect legal argument. Conspiracy to commit a substantive
offense and commission of the substantive offense itself are two
distinct crimes:
[I]t has long been established that “conspiracy to commit a crime is not the same offense as the substantive crime for double jeopardy purposes,” [United States v.] Lanoue, 137 F.3d [656,] 662 [(1st Cir. 1998)], because “the agreement to do the act is distinct from the [completed] act itself,” United States v . Felix, 503 U.S. 3 7 8 , 390-91 (1992) (internal quotation marks omitted) (adhering to line of cases holding that separate prosecutions for conspiracy and for underlying substantive offenses do not violate the Double Jeopardy Clause).
24 United States v . Fornia-Castillo, 408 F.3d 5 2 , 69 (1st Cir. 2005)
(parallel citations omitted). Petitioner’s double jeopardy claim
is without merit, therefore his inadequate assistance claim is
without merit to the extent the latter depends on the former.
Respondent is entitled to judgment as a matter of law on the
portion of petitioner’s ineffective assistance claim related to
the double jeopardy issue.
2 . Constructive Amendment
Petitioner also claims that his trial counsel provided
ineffective assistance by failing to object to the state court’s
alleged constructive amendment of the conspiracy indictment while
instructing the jury. Petitioner argues that the trial court
told the jury that the overt act element of the conspiracy charge
could be met by proof that petitioner had committed any of the
acts charged in the indictments against him, rather than any of
the overt acts alleged in the conspiracy indictment. This
matters, according to petitioner, because the conspiracy
indictment listed, as overt acts, only two of the three drug
sales with which he was charged by separate indictment. In his
view, the trial judge impermissibly amended the conspiracy
25 indictment by adding an uncharged overt act to i t , namely the May
1 9 , 1998, cocaine sale for which he was indicted, but that was
not included as an overt act in the conspiracy indictment. He
says his trial was unconstitutionally unfair because he was not
put on notice that in order to defend himself against the
conspiracy charge, he had to defend himself against allegations
concerning the May 19 sale.
Respondent moves for summary judgment on grounds that:
(1) the alleged amendment that petitioner identifies, in the
trial transcript, was the result of either a misstatement by the
judge or a transcription/typographic error by the stenographer;
(2) any erroneous impression that might have been conveyed by the
allegedly improper instruction was corrected by a subsequent
accurate statement delivered orally by the judge, and by the
written instructions, which were provided to the jury and which
do not include the alleged error; and (3) any error was
ultimately harmless.
According to the trial transcript, Judge Lynn instructed the
jury, regarding the third element of the conspiracy charge, that
26 the State was obligated to prove “that at some time during the
existence or life of the conspiracy one of its members performed
one of the overt acts alleged in the indictments for the purpose
of furthering or advancing the objectives of the conspiracy.”
(Tr. IV at 75.) In the written instructions, which were provided
to the jury, the word “indictment” was used rather than the word
“indictments.” When offering further oral instruction on the
overt act element, Judge Lynn said:
In order to sustain its burden of proof, the State must also prove beyond a reasonable doubt that during the life of the conspiracy one of the members of the conspiracy knowingly performed at least one of the overt acts alleged in the indictment and that this overt act was performed for the purpose of advancing the goals of the conspiracy.
(Tr. at 78.)
I f , in fact, Judge Lynn did misread his instruction on the
third element of conspiracy, substituting “indictments” for
“indictment,” petitioner’s trial counsel did not provide
constitutionally deficient (that i s , objectively unreasonable)
assistance by failing to object. Judge Lynn’s slip of the tongue
– if any – was innocuous. Moreover, by the time petitioner’s
27 counsel could have made an objection, the error had been
corrected orally, by Judge Lynn’s subsequent use of the term
“indictment” rather than “indictments,” and, as petitioner’s
counsel well knew, the jury was to be provided with a written
copy of the jury instructions which used the singular throughout.
Thus, it would have been perfectly reasonable for petitioner’s
counsel to determine that an objection would serve no useful or
practical purpose since a correct statement and provision of the
written instructions were already in place. Because petitioner’s
failure to object to Judge Lynn’s putative misstatement was not
objectively unreasonable – the issue was hardly a “promising
one.” Respondent is entitled to judgment as a matter of law on
the portion of petitioner’s ineffective assistance claim related
to the issue of constructive amendment of the indictment.
Moreover, even if trial counsel’s failure to object might be
deemed objectively unreasonable, petitioner’s claim would still
fail on the second prong of the Strickland test. There is little
chance, much less a reasonable probability, that the outcome of
the trial would have been different absent the erroneous use of
the plural “indictments” rather than the singular “indictment”
28 when the judge instructed on the conspiracy indictment, under
these circumstances. Even if the jurors had treated the May 19
sale as an overt act for purposes of the conspiracy charge, they
also found petitioner guilty of two other cocaine sales and of
possessing cocaine with intent to sell, and all three of those
acts were listed as overt acts in the conspiracy indictment. So,
the jury unquestionably found multiple qualifying overt acts,
beyond a reasonable doubt, sufficient to support the conspiracy
conviction. Thus, even without the May 19 sale, the jury found,
beyond a reasonable doubt, that petitioner had committed three of
the overt acts listed in the conspiracy indictment.
Conclusion
For the reasons given, respondent’s motion for summary
judgment (document n o . 26) is granted. The clerk of the court
shall enter judgment in accordance with this order and close the
case.
29 SO ORDERED.
Steven J. McAuliffe Chief Judge
January 3 1 , 2006
cc: Maurice Grimard, pro se Nicholas P. Cort, Esq.