Case 1:08-cv-00268-SM Document 25 Filed 05/24/10 Page 1 of 17
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Joseph Haniffy, Petitioner
v. Civil N o . 08-cv-268-SM Opinion N o . 2010 DNH 090 Richard Gerry, Warden, New Hampshire State Prison, Respondent
O R D E R
Respondent moves for summary judgment on Joseph Haniffy’s
petition for a writ of habeas corpus. 28 U.S.C. § 2254. Haniffy
objects. For the reasons given, respondent’s motion for summary
judgment is granted.
Background
Haniffy is currently serving a state-imposed sentence of
incarceration for aggravated felonious sexual assault.
Before trial, Haniffy filed a motion in limine seeking to
exclude the testimony of codefendants Cassidy Coburn and
Christopher Armstrong. Generally speaking, Haniffy was concerned
that the State would call Coburn and Armstrong to testify merely
to impeach them with hearsay evidence for the improper purpose of
establishing the victim’s alleged lack of consent to sexual
activity through evidence not admissible for that substantive Case 1:08-cv-00268-SM Document 25 Filed 05/24/10 Page 2 of 17
purpose. He based his motion on the following proposition of
law:
While [a witness’s] prior inconsistent statement may be admitted to attack [his] credibility even if the statement tends to directly inculpate the defendant, the State may not use a statement under the guise of impeachment for the primary purpose of placing before the jury otherwise inadmissible substantive evidence. See United States v . Hogan, 763 F.2d 697, 702 (5th Cir. 1985). This limitation prevents the State from using impeachment by prior inconsistent statement as a mere subterfuge to avoid the hearsay rule. See Id.
(Resp’t’s First Mot. Summ. J. (document n o . 1 4 ) , Ex. B , at A62
(quoting State v . Soldi, 145 N.H. 571, 574 (2000)). Haniffy did
not explicitly advance a federal constitutional claim before the
state court, and the authorities on which he relied, i.e., Soldi
and Hogan, were not based upon federal constitutional law. See
Soldi, 145 N.H. at 573-74; Hogan, 763 F.2d at 701-03.1 The trial
court denied Haniffy’s motion to exclude, but ordered that
“before the State will be permitted to attempt to impeach either
co-defendant, with their prior statements or any other evidence,
the parties shall be required to approach the bench.” (Resp’t’s
First Mot. Summ. J., Ex. B , at A68.)
1 Haniffy cited three other federal cases in his motion in limine (see Resp’t’s First Mot. Summ. J., Ex. B , at A 6 3 ) , but like Hogan, those cases applied the Federal Rules of Evidence, not the federal constitution. See United States v . Gomez- Gallardo, 915 F.2d 553, 555-56 (9th Cir. 1990); United States v . Crouch, 731 F.2d 621, 623-24 (9th Cir. 1984); United States v . Morlang, 531 F.2d 183, 188-90 (4th Cir. 1975).
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During a chambers conference on the fourth day of trial, the
trial judge instructed the prosecutor on how he was to examine
Coburn and Armstrong:
This is what you’re going to be allowed to d o . You highlight whatever portions of this transcript you want to deal with. You can show it to him and ask him what he meant by that. I don’t want it read to the jury. I don’t want it read out loud. You may show it to him and ask him to read it to himself and ask him to explain what he meant by that. This case is not coming in through improper hearsay, David. It’s just not going to happen.
(Trial Tr., Day 4 , at 34.) The State’s examination of Coburn
drew numerous objections from Haniffy’s counsel. At one point,
the trial judge appears to have agreed with defense counsel that
the prosecutor was ignoring his instructions on how to examine
Coburn in an attempt to draw repeated objections. (Id. at 97.)
The judge went on to tell the prosecutor that he was “very close
to drawing a mistrial.” (Id.) The State’s direct examination of
Armstrong went more smoothly, but did draw at least one
objection, which was sustained. (Id. at 157-58.) In addition,
during the State’s closing argument, defense counsel objected to
the manner in which the prosecutor referred to Coburn’s and
Armstrong’s out-of-court statements. (Id., Day 6, at 54-55.) As
noted above, Haniffy was eventually convicted.
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Haniffy appealed his conviction. His notice of appeal lists
ten issues, including these:
1 . Did the Court err in denying the defendant’s Motion in Limine #1 (Testimony of Armstrong and Coburn)?
2 . Did the Court err in allowing the State to ask questions of the co-defendants that were designed to elicit inadmissible hearsay?
(Status Report, Attach. 4 (document no 5 - 4 ) , at 3.)
In his appellate brief, Haniffy listed three issues, only
the third of which (“issue three”) is relevant here: “Whether the
trial court erred in denying [his] motion to preclude the
testimony of the co-defendants?” (Resp’t’s First Mot. Summ. J.,
Ex. A , at 1.) While the section of Haniffy’s brief devoted to
issue three is labeled “THE TRIAL COURT ERRED IN DENYING
HANIFFY’S MOTION TO PRECLUDE THE TESTIMONY OF THE CO-DEFENDANTS”
(id. at 2 7 ) , the brief itself discusses the denial of the motion
in limine and the manner in which the trial was conducted,
including both the prosecutor’s direct examinations of Coburn and
Armstrong and his closing argument. But, like his motion in
limine and his notice of appeal, Haniffy’s appellate brief does
not make a federal constitutional claim. Its table of
authorities lists no federal constitutional provisions (Resp’t’s
First Mot. Summ. J., Ex. A , at i i ) , and the only federal cases it
cites, Hogan and Morlang (id. at 33-34), resolved issues arising
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under the Federal Rules of Evidence, not the federal
constitution. Haniffy’s legal analysis with respect to issue
three begins in the following way: “Under New Hampshire Rule of
Evidence 607, a party may impeach its own witness. The rule,
however, ‘gives the trial court discretion to determine whether
to admit evidence under the rule, in part to protect timid
witnesses against overzealous prosecutors.’ ” (Resp’t’s First
Mot. Summ. J., Ex. A , at 32 (quoting Soldi, 145 N.H. at 573)).
In other words, the legal argument in Haniffy’s appellate brief
relies exclusively on the New Hampshire Rules of Evidence.
The New Hampshire Supreme Court affirmed Haniffy’s
conviction in an unpublished order. (See Status Report, Attach.
6 (document n o . 5-6).) The court characterized Haniffy’s appeal
as arguing “that the trial judge made three errors regarding the
admissibility of evidence” (id. at 1 ) , and its decision rested
exclusively on its interpretation of the New Hampshire Rules of
Evidence as set out in its earlier decision in Soldi (see id. at
2).
Haniffy’s petition for a writ of habeas corpus now consists
of the following two claims:
1. Haniffy’s due process and fair trial rights, guaranteed by the Sixth and Fourteenth Amendments, were violated when the Court allowed his
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codefendants to testify at his trial, which allowed the prosecution to improperly introduce the substance of hearsay statements of the codefendants into evidence.
2. Haniffy’s due process and fair trial rights, guaranteed by the Sixth and Fourteenth Amendments, were violated when the trial court allowed the prosecution to repeatedly violate its instructions regarding use of the codefendants’ hearsay statements at trial.
(Order (document n o . 9 ) , at 8-9.) While it is not entirely
clear, the court assumes that Ground One tracks issue one in
Haniffy’s state notice of appeal and issue three in his brief,
and thus pertains to the trial court’s denial of his Motion in
Limine # 1 . The court further assumes that Ground Two pertains
both to the prosecutor’s examination of Coburn and Armstrong and
to his references to that testimony in his closing argument.
Discussion
A . Ground One
Respondent says that Ground One is unexhausted, was
procedurally defaulted in the state courts, and fails on the
merits. Haniffy does not address the issue of procedural
default, other than by arguing that his claims were properly
exhausted. Respondent’s first two arguments are meritorious, and
dispositive.
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Federal habeas corpus relief may not be granted unless a
petitioner’s state-law remedies have been exhausted. See Janosky
v . S t . Amand, 594 F.3d 3 9 , 50 (1st Cir. 2010) (citing 28 U.S.C. §
2254(b)(1)(A); Picard v . Connor, 404 U.S. 270, 275 (1971)). “The
exhaustion doctrine honors hallowed principles of federal-state
comity. It serves to ensure that the state courts are
sufficiently apprised of a federal claim to have a meaningful
opportunity to address that claim.” Id. (quoting RaShad v .
Walsh, 300 F.3d 2 7 , 41 (1st Cir. 2002)). Unexhausted claims are
subject to dismissal. See Janosky, 594 F.3d at 5 1 .
“In order to exhaust a federal claim, a petitioner must
present that claim ‘fairly and recognizably’ to the state
courts.” Id. at 50 (quoting Adelson v . DiPaola, 131 F.3d 259,
262 (1st Cir. 1997)). “In other words, he must have tendered the
claim ‘in such a way as to make it probable that a reasonable
jurist would have been alerted to the existence of the federal
question.’ ” Id. (quoting Scarpa v . Dubois, 38 F.3d 1 , 6 (1st
Cir. 1994)).
A petitioner will satisfy the fair presentment requirement if he does any of the following in his [notice of appeal]: (i) cites a provision of the federal Constitution upon which the relevant claim rests; (ii) advances the claim in a manner that alerts the state court to its federal nature; (iii) cites federal constitutional precedents in support of the claim; or (iv) explicitly alleges a violation of a right specifically protected in the federal
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Constitution. Clements [v. Maloney], 485 F.3d [158, 162 [(1st Cir. 2007)]. In some situations, a petitioner may satisfy the presentment requirement by citing to state-court precedents, which themselves rely on federal constitutional law. Id. Similarly, he may achieve that result by asserting a state claim that i s , for all practical purposes, indistinguishable from a federal constitutional claim. Id.
Janosky, 594 F.3d at 5 0 . On the other hand, however, “[m]aking a
‘somewhat similar state-law claim’ is insufficient” to exhaust a
federal constitutional claim. Rivera v . Goode, 540 F. Supp. 2d
582, 591 (E.D. Pa. 2008) (quoting McCandless v . Vaughn, 172 F.3d
255, 261 (3d Cir. 1999)).
Haniffy did not present the constitutional claim described
in Ground One to the New Hampshire Supreme Court in any of the
ways described in Janosky. Rather, like the ALOFAR in Janosky,
which claimed violations of state evidentiary rules but not the
Sixth Amendment, see 594 F.3d at 5 0 , Haniffy’s notice of appeal,
and his state appellate brief, presented only a claim that the
trial court violated the New Hampshire Rules of Evidence by
admitting the testimony of Coburn and Armstrong — it made no
federal constitutional claim. Accordingly, the federal
constitutional claim in Ground One has not been exhausted.
28 U.S.C. § 2254(b)(2)(A).
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Haniffy does not claim to have met the presentment
requirement in any of the ways described in Janosky. Rather, he
relies solely on the discussion of exhaustion in the Magistrate
Judge’s October 1 3 , 2009, preliminary review order (document n o .
9). That is not enough. “[F]ailure to exhaust is an affirmative
defense under the PLRA.” Jones v . Bock, 549 U.S. 199, 216.
Respondent is entitled to raise and prove failure to exhaust,
notwithstanding the Magistrate Judge’s order on preliminary
review. That order was necessarily issued before respondent was
served; it cannot have res judicata effect. The situation might
be different if habeas petitioners were required to plead and
demonstrate exhaustion in their petitions, but that is not the
law. See Jones, 549 U.S. at 211-17. Accordingly, Haniffy’s
reliance on the Magistrate Judge’s order is unavailing.
Because the claim Haniffy raises in Ground One has not been
exhausted, Ground One must be dismissed. See Janosky, 594 F.3d
at 5 1 .
Review of Ground One is also precluded because the
constitutional issue raised therein was procedurally defaulted in
the state courts. See id. at 44 (“Federal habeas review of a
particular claim is precluded in circumstances in which a state
prisoner has defaulted on that claim in state court by virtue of
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an independent and adequate state procedural rule.”) (citation
omitted). “[A] claim is procedurally defaulted if it was not
presented to the state courts and it is clear that those courts
would have held the claim procedurally barred.” Pike v . Guarino,
492 F.3d 6 1 , 73 (1st Cir. 2007) (citing Coleman v . Thompson, 501
U.S. 722, 735 n.1 (1991); Perruquet v . Briley, 390 F.3d 505, 514
(7th Cir. 2004)).
As discussed above, the constitutional claim described in
Ground One of Haniffy’s petition was not presented to the New
Hampshire state courts. Moreover, because Haniffy did not raise
that claim in the trial court, did not raise it in his notice of
appeal, and did not address it in his supreme court brief, the
New Hampshire Supreme Court would have held that claim to be
procedurally barred had he attempted to press it during the
appeal process.
In the first instance, Haniffy did not object to the
admission of testimony from Coburn and Armstrong, in
constitutional terms, in the trial court. For that reason, the
New Hampshire Supreme Court would not have reviewed that issue,
even if Haniffy had listed it in his notice of appeal and briefed
it. “The general rule in [New Hampshire] is that a
contemporaneous and specific objection is required to preserve an
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issue for appellate review.” State v . Ericson, 159 N.H. 379, 386
(2009) (quoting State v . Winstead, 150 N.H. 244, 246 (2003))
(emphasis added). Thus, the New Hampshire Supreme Court “will
not review any issue that the defendant did not raise before the
trial court.” State v . Bell-Rogers, 159 N.H. 178, 182 (2009)
(quoting State v . Blackmer, 149 N.H. 4 7 , 48 (2003)).
Here, it is clear that Haniffy objected to the State’s
elicitation of testimony from Coburn and Armstrong in his Motion
in Limine # 1 . But he only objected to the admission of evidence
barred by the New Hampshire hearsay rule; he never argued that
introduction of that evidence would violate his rights under the
federal constitution. That objection was not sufficient, under
New Hampshire law, to preserve the claim Haniffy makes in Ground
One, because “[t]he objection must state explicitly the specific
ground of objection.” Ericson, 159 N.H. at 386 (emphasis added).
Ericson provides a useful example of the degree of
explicitness and specificity necessary to preserve an issue for
appellate review. In that case:
the defendant objected [at trial] on the ground that to allow the victim to hold Silly Putty while testifying would make her appear “more helpless than she might otherwise be evaluated by the jury,” and that the State had failed to establish a “compelling need” to allow her to hold the Silly Putty. The defendant never made reference to “due process,” “fair trial,” “right to
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confront,” or any other phrase that might have alerted the trial court that he intended to raise a constitutional argument. Nor did he ever identify a constitutional provision that was allegedly violated.
Id. at 386. The New Hampshire Supreme Court held that the
defendant in Ericson failed to preserve his federal
constitutional claim for appellate review. Id. The New
Hampshire Supreme Court has also held that an objection that a
witness’s testimony constituted inadmissible hearsay was not
sufficient to preserve, for appellate review, a Confrontation
Clause claim under Crawford v . Washington, 541 U.S. 36 (2004).
See State v . Legere, 157 N.H. 746, 764 (2008).
Like the defendants in Ericson and Legere, Haniffy objected
at trial, but gave the trial court no indication, either express
or implied, that his objection had a federal constitutional
dimension. The New Hampshire Supreme Court would, if presented
with the question, deem Haniffy’s constitutional claim to have
been forfeited. See State v . Dodds, 159 N.H. 239, 244 (2009)
(“Any objection not raised at trial is deemed waived.”) (citing
State v . Ryan, 135 N.H. 587, 88 (1992)).
Moreover, even if Haniffy had adequately preserved his
constitutional claim in the trial court, and properly briefed i t ,
the Supreme Court would not have addressed i t , because he did not
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raise the issue in his notice of appeal. In New Hampshire, the
Supreme Court will not review an issue not raised in the
appellant’s notice of appeal. See N.H. Ball Bearings, Inc. v .
Jackson, 158 N.H. 421, 436 (2009) (citing Guyotte v . O’Neill, 157
N.H. 616, 623 (2008)); Dupont v . N.H. Real Estate Comm’n, 157
N.H. 658, 662 (2008) (“We decline to address both arguments,
however, because these issues were also not raised in the notice
of appeal. As a result, the issues were not properly preserved
and are deemed waived.”) (citing State v . Martin, 145 N.H. 313,
315 (2000)).
Finally, Haniffy also failed, completely, to develop or even
identify a federal constitutional claim in his appellate brief.
S o , even if he had properly preserved that claim at trial, and
raised it in his notice of appeal, the New Hampshire Supreme
Court, if asked to rule on i t , would have deemed it forfeited or
waived. See State v . Kelly, 159 N.H. 390, 394 (2009) (“To the
extent that the defendant implied at oral argument that the
process he received at the deferred sentence hearing was
constitutionally infirm, he has not briefed this argument, and we
deem it waived.”) (citing State v . Fortier, 146 N.H. 784, 792
(2001)); see also Blackmer, 149 N.H. at 49 (citing State v .
Chick, 141 N.H. 503, 504) (1996) (passing reference to
constitutional claim renders argument waived); Keenan v . Fearon,
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130 N.H. 494, 499 (1988) (“off-hand invocations” of
constitutional rights supported by neither argument nor authority
warrant no extended consideration)). Here, Haniffy’s state brief
provided neither argument nor authority for a federal
constitutional claim and, indeed, did not even include a passing
reference or an off-hand invocation.
At three different points, i.e., at trial, in his notice of
appeal, and in his appellate brief, Haniffy failed to alert the
New Hampshire state courts to his current claim that impeachment
of Coburn and Armstrong would violate his federal due-process and
fair-trial rights. Thus, had the New Hampshire Supreme Court
been asked to rule on that claim, it would have deemed the claim
forfeited (waived) under well-established rules of procedure. In
other words, the claim was procedurally defaulted.
A procedural default “can be excused if ‘the prisoner can
demonstrate cause for the default and actual prejudice as a
result of the alleged violation of federal law, or . . . a
fundamental miscarriage of justice.’ ” Yeboah-Sefah v . Ficco,
556 F.3d 5 3 , 66 (1st Cir. 2009) (quoting Coleman, 501 U.S. at
750). Haniffy, however, advances no argument on cause and
prejudice.
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Because Haniffy has procedurally defaulted the
constitutional claim in Ground One, and has not established the
requisite basis for having that default excused, this court is
precluded from reaching the merits of the claim raised in Ground
One. See Pike, 492 F.3d at 7 3 .
B . Ground Two
Respondent makes essentially the same argument for Ground
Two that he advances for Ground One. The analysis of Ground One
applies with equal force to Ground Two. The claims advanced in
Ground Two are both unexhausted and procedurally defaulted, which
precludes federal habeas corpus review.
C . Merits
Respondent is entitled to judgment as a matter of law, due
to both lack of exhaustion and procedural default. Even if the
merits were considered, however, respondent would still be
entitled to summary judgment.
In federal habeas practice, review of the application of
state evidentiary rules is “severely limited.” Abrante v . S t .
Amand, 595 F.3d 1 1 , 19 (1st Cir. 2010). “To be a constitutional
violation, a state evidentiary error must so infuse the trial
with inflammatory prejudice that it renders a fair trial
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impossible.” Id. (quoting Petrillo v . O’Neill, 428 F.3d 4 1 , 44
n.2 (1st Cir. 2005)).
Here, there are two problems with Haniffy’s claims. First,
it is not at all clear that any evidentiary errors occurred.
Before and during trial, Haniffy was concerned about the
admission of hearsay but, in fact, the portions of the trial
transcript he identifies as illustrating the unfairness of his
trial document the admission of very little, if any, hearsay.
Plainly, the prosecutor’s examinations of Coburn and Armstrong
drew objections from defense counsel and admonitions from the
trial judge. But, hardly any hearsay actually made its way to
the jury. S o , it is not at all clear that any state evidentiary
errors occurred at trial. Because evidentiary errors at trial,
if any, were very minor, Haniffy cannot show that his trial was
so infused with inflammatory prejudice that it was not possible
for the trial to have been fair. Accordingly, even if the court
were to consider the merits of Haniffy’s claims, he would not
prevail under the federal standard.
Conclusion
For the reasons given, respondent’s motion for summary
judgment (document n o . 22) is granted. The clerk of the court
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shall enter judgment in accordance with this order and close the
case.
SO ORDERED.
May 2 4 , 2010
cc: Joseph Haniffy, pro se Elizabeth C . Woodcock, Esq.