Hammell v. Warden, NHSP

2001 DNH 149

• Court: District Court, D. New Hampshire
• Decided: August 9, 2001
• Docket: CV-00-181-B
• Status: Published

Opinion

Hammell v. Warden, NHSP CV-00-181-B 08/09/01 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Michael L . Hammell

v. Civil No. 00-181-B Opinion No. 2001 DNH 149 Warden, New Hampshire State Prison

MEMORANDUM AND ORDER

Michael Hammell raises the following eight claims in his

habeas corpus petition:

(i) his procedural due process rights were violated when he was certified as an habitual motor vehicle offender; (ii) his Sixth Amendment right to effective assistance of counsel was violated when his trial lawyer failed to collaterally challenge his habitual offender status; (iii) his right to effective assistance of counsel was violated when his trial lawyer failed to properly investigate the case; (iv) his right to effective assistance of counsel was violated when his trial lawyer failed to challenge the probable cause for his arrest; (v) his right to effective assistance of counsel was violated when his trial lawyer impeached a defense witness; (vi) his right to effective assistance of counsel was violated when his lawyer failed to cross-examine, or introduce evidence to impeach, one of the State's witnesses; (vii) his right to effective assistance of counsel was violated when his lawyer failed to take a direct appeal; and (viii) his due process rights were violated when the State failed to disclose exculpatory evidence.

The Warden of the New Hampshire State Prison challenges all

eight claims in a motion for summary judgment. I address each

claim in turn.

A. Habitual Offender Certification

Hammell's first and second claims are related. He argues

first that the State violated his right to procedural due process

when it certified him as an habitual offender. He next claims

that his lawyer was ineffective for failing to collaterally

challenge his status as an habitual offender. The short response

to both arguments is that Hammell cannot collaterally attack an

habitual offender determination after having chosen not to appeal

it. See State v. Cannev, 132 N.H. 189, 191 (1989). Moreoever,

even if Hammell could have successfully attacked his habitual

offender certification, the expungement of the certification

would not have given him a defense to the charge of operating a

motor vehicle after having been certified as an habitual

offender. See State v. St. Hilaire. 543 A. 2d 824, 826-27 (Me.

- 2 - 1988). Accordingly, Hammell's first two claims have no merit.

B. Failure to Obtain Photographs of Store Windows

Hammell claims that his lawyer was ineffective because he

failed to obtain photographs of the windows that one of the

witnesses looked through when he identified Hammell as the driver

of the vehicle. I disagree.

Counsel's decision not to obtain photographs of the windows

obviously was a matter of trial strategy. Such judgments cannot

serve as the basis for an ineffective assistance of counsel

claim. See Strickland v. Washington, 466 U.S. 668, 689 (1984)

("Judicial scrutiny of counsel's performance must be highly

deferential ... a court must indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable

professional assistance; that is, the [petitioner] must overcome

the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy." (internal

quotation marks and citation omitted)).

C. Failure to Contest Probable Cause

Hammell next argues that counsel was ineffective because he

failed to require the State to prove that it had probable cause

- 3 - to arrest Hammell. This argument has no merit because the record

demonstrates that Hammell made a knowing and intelligent waiver

of his right to a probable cause hearing. Moreover, any failure

by counsel to demand a probable cause hearing was harmless

because the State had ample evidence to justify its decision to

arrest Hammell.

D. Preemptive Impeachment of Defense Witness

Hammell faults his lawyer for cross-examining a defense

witness. Counsel's decision to preempt an attack on the

credibility of a defense witness by anticipating issues that the

State might raise in cross examination is sound trial strategy

that cannot support an ineffective assistance of counsel claim.

See Strickland, 466 U.S. at 689-90. Thus, I reject Hammell's

argument that his counsel was ineffective for this reason.

E. The Incident Report

Hammell claims that his attorney was ineffective because he

failed to obtain and use at trial a police incident report

describing his arrest. He also asserts that the State violated

his right to due process by withholding the report from his

attorney. Neither argument has merit.

- 4 - Hammell claims that the police incident report would have

been helpful to his defense because it could be read to suggest

that the arresting officer was with Hammell for only

approximately three minutes before he arrested him rather than

the approximately 15 minutes that the officer testified it took

from the time he drove into the parking lot until he left the lot

with Hammell in custody. Even if this were true, it could not

have affected the outcome of the case. The State established

that Hammell was the driver of the vehicle primarily through the

testimony of an eyewitness and undisputed evidence that Hammell

had the keys to the vehicle in his pocket when he was arrested.

The amount of time that the arresting officer spent at the scene

before he arrested Hammell has no bearing on the question of

whether Hammell was the operator of the vehicle. Since Hammell

suffered no prejudice as a result of the State's failure to

produce the report and/or his counsel's failure to obtain the

report, he is not entitled to habeas corpus relief on this basis.

See United States v. Wilkerson, 251 F.3d 273, 279 (1st Cir. 2001)

(stating that, in order to prove ineffective assistance of

counsel, the claimant must demonstrate "that there was a

reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"

(quoting Strickland, 466 U.S. at 693-94)); United States v.

Rosario-Peralta, 199 F.3d 552, 559 (1st Cir. 1999), cert, denied,

121 S.Ct. 241 (2000) (holding that, in order to establish a Bradv

violation, the claimant must demonstrate "a reasonable

probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different" (internal

F. Failure to File an Appeal

Hammell's final argument is that his counsel was ineffective

because he failed to file an appeal on Hammell's behalf. Again,

I disagree.

The Supreme Court recognized in Roe v. Flores-Qrtega, 528

U.S. 470 (2000), that when a defendant claims that his attorney

was ineffective because he failed to file an appeal without the

defendant's consent, he must prove both that counsel's

performance was deficient and that the defendant was prejudiced

by counsel's failure to file the appeal. See i d . at 476-80. In

this case, Hammell has failed to demonstrate how he was

prejudiced by counsel's failure to file an appeal. The evidence

of his guilt is overwhelming and he has identified no issue of

- 6 - law on which he would have had even a remote chance of prevailing

on appeal. Accordingly, he is not entitled to habeas corpus

relief because his attorney failed to appeal his conviction.

G. Conclusion

For the reasons set forth in this Memorandum and Order, I

grant the State's motion for summary judgment, (Doc. No. 17).

The Clerk shall enter judgment accordingly.

SO ORDERED.

Paul Barbadoro Chief Judge

August 9, 2001

cc: Michael L. Hammell, pro se N. William Delker, Esq.

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