Hearns v NHSP, Warden

• Court: District Court, D. New Hampshire
• Decided: September 30, 2008
• Docket: CV-05-413-JL
• Status: Published

Opinion

Hearns v NHSP, Warden CV-05-413-JL 09/30/08 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Dwayne Hearns

v. Civil No. 05-cv-413-JL Opinion No. 2 008 DNH 180 Warden, New Hampshire State Prison

ORDER

The pro se petitioner, Dwayne Hearns, seeks habeas corpus

relief, see 28 U.S.C. § 2254 (2006), from his state court

convictions for aggravated felonious sexual assault ("AFSA"), see

N.H. Rev. Stat. Ann. § 632-A:2, I(j)(1)(Supp. 2001) (amended

2003), and simple assault, see N.H. Rev. Stat. Ann. § 631:2-a

(1996). Hearns alleges four grounds in support of his position:

(A) multiple instances of prosecutorial misconduct at trial, (B)

the state trial court abused its discretion by compelling him to

choose between his right to a speedy trial, and right to present

certain exculpatory evidence, see U.S. Const, amend VI, (C) trial

counsel provided constitutionally ineffective assistance, see

U.S. Const, amend VI, and (D) the trial court improperly imposed

consecutive sentences. U.S. Const, amends. V & XIV.

This court has jurisdiction over Hearns' petition under 28

U.S.C. § 1331 (2001) (federal question) and the Antiterrorism and

Effective Death Penalty Act of 1996 ("AEDPA"). See 28 U.S.C. §

2254(a) .

1 The parties filed timely cross motions for summary judgment.

See Fed. R. Civ. P. 56. Additionally, Hearns requests a hearing

and the Warden objects. See 28 U.S.C. § 2254 Rule 8 (2007). For

the following reasons, the court grants the Warden's motion and

denies Hearns' cross-motion. Hearns' request for an evidentiary

hearing is denied. Hearns' petition for a writ of habeas corpus

is likewise denied.

I. Standard of review

Review of this petition is governed by the AEDPA mandate

that a habeas relief will not be granted with respect to any

state court adjudication unless it "resulted in a decision that

was contrary to, or involved an unreasonable application of,

clearly established Federal law." 28 U.S.C. § 2254(d)(1), see

Price v. Vincent, 538 U.S. 634, 639-640 (2003). A high degree of

deference is accorded the state court decision. Dugas v. Coplan,

506 F.3d 1, 6 (2007); c f . Horton v. Allen, 370 F.3d 75, 80 (1st

Cir. 2004) ("if the petition presents a close call, it must be

rejected, even if the state court was wrong").

Under this standard, a state court decision is "contrary to"

established federal law "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

2 indistinguishable facts." Castillo v. Matesanz, 348 F.3d 1, 9

(1st Cir. 2003)(quotations and brackets omitted).

A state court adjudication involves an unreasonable

application of established law if the court correctly sets forth

the governing law, but unreasonably applies it to the facts of

the petitioner's case. McCambridqe v. Hall, 303 F.3d 24, 36 (1st

Cir. 2002). "[T]he state court's determination must be

unreasonable, not simply incorrect, and unreasonableness is an

objective standard." Castillo, 348 F.3d at 9; see Sanna v.

Dipaolo, 265 F.3d 1, 13 (1st Cir. 2001) . "[S]ome increment of

incorrectness beyond error is required. The increment need not

necessarily be great, but it must be great enough to make the

decision unreasonable in the independent and objective judgment

of the federal court." McCambridqe, 303 F.3d at 36 (quotations

and citation omitted); see Creighton v. Hall, 310 F.3d 221, 226

(1st Cir. 2002) (the test is whether the decision is "objectively

unreasonable" rather than "merely incorrect").

It is the petitioner's burden to show that the law was

unreasonably applied in his case. Price, 538 U.S. at 641, and "if

it is a close question whether the state decision is in error,

then the state decision cannot be an unreasonable application."

McCambridqe, 303 F.3d at 36. "[W]here reasoned application of

clearly established Supreme Court precedent to a particular set

of facts can lead to more than one outcome, the state court's

3 choice between those outcomes, whether right or wrong, cannot

constitute a basis for habeas relief." Sanna, 265 F.3d at 13

(quotations and ellipses omitted). Further, this court will not

inquire whether the state court decision is well reasoned, but

will focus instead on whether the outcome of that decision is

reasonable. See, e.g., Creighton, 310 F.3d at 226.

The AEDPA mandates this review, however, only to issues that

were adjudicated by the state court. See 28 U.S.C. § 2554(d),

DiBenedetto v. Hall, 272 F.3d 1, 6 (2001)(key trigger of AEDPA

review is whether "claim" was "adjudicated on the merits").

Federal courts "can hardly defer to the state court on an issue

that the state court did not address." Fortini v. Murphy, 257

F.3d 39, 47 (1st Cir. 2001). As such, "[w]hen the state court

has never addressed the particular federal claim at issue,

federal review is de novo." Dugas, 506 F.3d at 7; see Pike v.

Guarino, 492 F.3d 61, 67 (1st Cir. 2007). However, because the

purpose of AEDPA is to grant deference to state court

adjudications, "[t]o trigger the AEDPA standard, the state court

need not discuss the federal claim in detail." White v. Coplan,

399 F.3d 18, 23 (2005). "[A] mere recognition and rejection of

the federal claim without any further discussion still invokes

AEDPA deference." Id.

Summary judgment is appropriate in habeas corpus proceedings

"if the pleadings, the discovery and disclosure materials on

4 file, and any affidavits show that there is no genuine issue as

to any material fact and that the movant is entitled to judgment

as a matter of law." Fed. R. Civ. P. 56(c); see Fed. R. Civ. P.

81(4), 28 U.S.C. § 2254 Rule 11 (2007). A genuine issue is one

"that properly can be resolved only by a finder of fact because

[it] may reasonably be resolved in favor of either party."

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)

(decided under prior version of the rule). A material fact is

one that, under the prevailing substantive law, effects the

outcome of the case. Id. at 248.

II. Background

"We describe the facts pertinent to the grounds of decision

as they were found by the state court, fleshed out by other facts

contained in the record and consistent with the state court

findings." See McCambridqe, 303 F.3d at 26. This court is

"bound to accept the state court findings of fact unless [the

petitioner] convinces us, by clear and convincing evidence, that

they are in error." Id.; see Niland v. Hall, 280 F.3d 6, 11

(1st Cir 2002); Sanna, 265 F.3d at 7; 28 U.S.C. § 2254(e)(1).

"For this purpose, 'facts' are defined as basic, primary

historical facts: facts in the sense of a recital of external

events and the credibility of their narrators." Sanna, 265 F.3d

at 7 .

5 The procedural and factual history of this matter is

complicated and Hearns challenges myriad rulings. Thus, for

purposes of clarity, this court will summarize the very basic

background facts here and add specificity as needed in the

analysis of each claim. See United States v. DeColoqero, 530

F.3d 36, 47 (1st Cir. 2008)("We trace the general contours of the

case here and leave further recounting for the analysis of

particular arguments").

In 2001, FB, a fourteen-year-old girl, was living with her

mother in Maine. The petitioner, Dwayne Hearns, who was formerly

married to FB's mother, lived in Pittsfield, N.H.

FB's relationship with her mother was difficult and she was

anxious to spend less time in her mother's home. During that

summer, FB wanted a job and got a position working with Hearns at

a restaurant in Epsom. At first, Hearns drove FB to and from the

restaurant, but eventually she began sleeping at Hearns'

apartment in Pittsfield. It was during this time that FB alleges

that Hearns committed the two counts of simple assault. On

August 10, 2001, FB's mother allowed her to move in with Hearns.

FB alleges that Hearns committed the remaining four counts of

aggravated felonious sexual assaults soon after.

At trial, the State's case rested primarily on the

testimonial evidence provided by FB, and DNA evidence in the form

of three "mixed samples" of DNA consistent with Hearns and FB

6 retrieved from a satin sheet found in Hearns' apartment. The

defense countered with testimony challenging FB's credibility.

Counsel questioned her veracity by eliciting testimony from a

number of FB's friends that she hosted daytime parties attended

by multiple teenagers at the apartment while Hearns was at work,

despite her initial testimony that she spent the days virtually

alone. The defense also introduced the testimony of a pair of

siblings1 who testified that FB had fabricated the allegations of

assault in order to obtain Hearns' apartment and belongings.

Defense counsel also vigorously challenged the DNA evidence.

Counsel suggested that another source of the DNA consistent with

FB was her brother, NC, who sometimes stayed at the apartment.

The defense also challenged whether the satin sheet was actually

on the bed when the assaults occurred. The defense argued to the

jury that the sheets were a serological "mess," and given the

number of teenagers present in the apartment that summer, the

State's DNA evidence could not be trusted. The jury convicted

Hearns of two counts of simple assault and four counts of AFSA

and a series of state and federal appeals followed.

1 The siblings were acquaintances of FB and one was a cell mate of Hearns after he was arrested.

7 Ill. Analysis

A. Prosecutorial misconduct

Hearns contends that his due process rights were violated

because the prosecutor, during closing arguments, committed

multiple errors that rose to the level of misconduct justifying a

new trial. Improper argument violates a defendant's due process

rights only if the argument "so infected the trial with

unfairness as to make the resulting conviction a denial of due

process." Donnelly v. DeChristofaro, 416 U.S. 637, 643 (1974);

see, e.g., Olszewski v. Spencer, 466 F.3d 47, 59 (1st Cir. 2006);

see U.S. Const, amend XIV. "The touchstone of due process

analysis in cases of alleged prosecutorial misconduct is the

fairness of the trial, not the culpability of the prosecution."2

Amirault v. Fair, 968 F.2d 1404, 1406 (1st Cir. 1992)(quotations

and brackets omitted). Therefore, habeas relief is warranted

only if the prosecution's arguments to the jury were both

improper and harmful. See, e.g.. United States v. Levv-Cordero,

67 F.3d 1002, 1008 (1st Cir. 1995). If statements are determined

to be inappropriate, the First Circuit has set forth a list of

factors to consider to determine whether the prosecutor's

comments rendered the trial so unfair that the defendant's due

2 The Supreme Court has admonished courts not to grant relief in order to punish prosecutorial misconduct. See, e.g.; United States v. Vasguez-Botet, 532 F.3d 37, 58 (1st Cir. 2008), United States v. Auch, 187 F.3d 125, 133 (1999). process rights were denied. Olszewski, 466 F.3d at 59.

Specifically, the First Circuit has directed that:

[a]lthough we have used slightly varying terminology in describing these factors, the common denominators are (1) the severity of the misconduct; (2) the context in which it occurred; (3) whether the judge gave any curative instructions and the likely effect of such instructions; and (4) the strength of the evidence against the defendant.

United States v. Manning, 23 F.3d 570, 574 (1994); see Olszewski,

466 F.3d at 59 (severity of misconduct is viewed in terms of

intent and pervasiveness).

Accordingly, this court will first review each claim of

impropriety, and, if misconduct is found, analyze whether those

errors so tainted the trial process that Hearns is entitled to a

new trial.3 C f . United States v. Wihbev, 75 F.3d 761, 772-773

(1st Cir. 1996) (concluding that prosecutor's comment was

inappropriate, but concluding, after considering all the factors,

it did not rise to the level of a due process violation).

As a preliminary matter, Hearns asserts that de novo review

is proper, while the Warden assumes that the deferential standard

of review applies. After a review of the record, the court

3 In this case, Hearns contends that the prosecutor's comments rendered his trial so unfair that his conviction was a denial of due process. This issue does not involve a violation of a specific guarantee of the Bill of Rights, such as the Fifth Amendment's guarantee against self incrimination, which would be analyzed under a higher standard. United States v. Wilkerson, 411 F.3d 1, 8-9 (1st Cir. 2005); Wihbev, 75 F.3d at 771 n. 6, see Donnelly, 416 U.S. at 643.

9 concludes that although some of the claims of impropriety were

adjudicated by the state courts for purposes of AEDPA review,

many were not.4 It is unnecessary to painstakingly resolve the

issue either way, because even under the more difficult de novo

standard, the prosecutor's comments do not justify habeas relief.

Therefore, the court will conduct the analysis under the de novo

standard. See Obershaw v. Lanman, 453 F.3d 56, 65-66 (1st Cir.

2006).

a. Claims of impropriety

(i) Burden shifting

In his habeas petition, Hearns asserts that the prosecutor

impermissibly shifted the burden of proof during his closing

argument. The New Hampshire Supreme Court, citing state law,

concluded that this comment was improper, but was not so

prejudicial as to warrant a new trial. See State v. Hearns, 855

A.2d 549, 556-557 (N.H. 2004).

During closing arguments, the prosecutor, while discussing

FB's testimony stated: "[s]he never wavered as to what that man

did to her. Did you notice the defense didn't even cross-examine

her on it? Why is that? Why?" (Trial Tr. Vol. 3, 67, October

24, 2002.) The defense objected after the conclusion of closing

4 Specifically, claim a.(i) was adjudicated for purposes of AEDPA, but claims a.(ii) through a.(iv) are ultimately reviewable under a de novo standard. arguments, contending that the prosecutor had impermissibly

shifted the burden of proof. Id. at 84-85. Although the trial

court did not rule on the issue at that time, it gave the

following curative instruction:

during the course of the State's argument in this case, an improper comment was made. The State argued that you should somehow consider defense counsel's failure to cross-examine [FB] on several issues. Please keep in mind that a defendant does not have to prove his innocence. A defendant has no obligation to introduce any evidence whatsoever. The burden of proof is on the State of New Hampshire to present evidence which convinces you beyond a reasonable doubt of the defendant's guilt on every element of the offenses charged.

Id. at 102.

On direct appeal, the New Hampshire Supreme Court concluded

that the comment was indeed improper.5 State v. Hearns, 855 A. 2d

at 556-557. This court agrees with the state court that this

comment impermissibly shifted the burden of proof.6

5 The New Hampshire Supreme Court also concluded that a mistrial was not warranted because it was an isolated infraction, was cured by the trial court's instruction, and did not prejudice the outcome of the case. State v. Hearns, 855 A.2d at 556-557.

6 This court notes that the disputed remark was not a comment on Hearns' Fifth Amendment right not to testify. See Wihbev, 75 F.3d at 769. It was not "of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." Id. (Quotations omitted.) Rather, in the context of the trial, this comment dealt solely with Hearns' alleged failure to make his case stronger by cross-examining FB. See Wilkerson, 411 F.3d at 8-9 (prosecutor's comments could not be taken as comment on failure to testify but as failure to support his theory of the case). As such, it is not subject to higher standard on habeas review, see Wihbev, 75 F.3d at 771 n.6. Even assuming the statements did

11 It is well settled that a prosecutor must not suggest that a

defendant has the burden of proving his innocence. See, e.g..

United States v. Roberts, 119 F.3d 1006, 1015 (1st Cir. 1997).

This type of argument can take many forms, for example, it is

improper for the prosecution to ask if the defendant "can explain

the story that would be different" from the prosecution. United

States v. Skandier, 758 F.2d 43, 44 (1st Cir. 1985), or to

suggest that the defendant has a responsibility to offer evidence

or present a compelling case, Roberts, 119 F.3d at 1015; cf.

Wilkerson, 411 F.3d at 8 (improper for prosecution to assert that

defendant had burden to prove another set of facts).7 Here, the

prosecutor's comments were clearly intended to tell that jury

that it was Hearns' responsibility to cross-examine FB about

certain credibility issues and offer a plausible explanation

about why he failed to do so. This is simply a "how-does-he-

explain" argument that is disfavored in this circuit. Skandier,

758 F.2d at 45. Accordingly, this court concludes that this

comment was improper. See Wihbev, 75 F.3d at 769-70

implicate a specific right such as the right against self incrimination, it would not be error because at most the comment was ambiguous, the jury was instructed about the proper burden of proof, and as discussed supra, there was significant evidence of guilt. C f . Wilkerson, 411 F.3d at 9. Thus, it cannot be said that the guilty verdicts in this trial were attributable to this error. See Wihbev, 75 F.3d at 769.

7 As will be discussed infra, contemporaneous curative instructions can correct an improper remark of this kind. See Roberts, 119 F.3d at 1015.

12 (impermissible burden shifting to suggest that defense counsel

should "explain away" or offer alternative explanation).

(ii) Improper Vouching

Hearns next contends that the prosecutor impermissibly used

the prestige of his office to bolster his arguments at closing

and improperly vouched for the credibility of FB. Prosecutorial

vouching occurs when the state puts the prestige of the

government behind its case by imparting a personal belief in a

witness's truthfulness or implying that a jury should credit

certain evidence because the government is trustworthy. See

United States v. Vasquez-Rivera, 407 F.3d 476, 483 (1st Cir.

2005); United States v. Cruz-Kuilan, 75 F.3d 59, 62 (1st Cir.

1996). " [A]ny representation as to the prosecutor's personal

belief in the guilt of the accused is improper." United States

v. Smith, 982 F.2d 681, 684 (1st Cir. 1993). Improper vouching

does not occur, however, when the prosecutor asks the jury to

make certain inferences from the evidence. United States v.

Perez-Ruiz, 353 F.3d 1, 10 (1st Cir. 2003); Smith, 982 F.2d at

683, or argues that a witness has reasons to testify truthfully

without resort to the prestige of the office. See Perez-Ruiz at

10; Cruz-Kuilan, 75 F.3d at 62. Although the line between

legitimate argument and improper vouching "is often a hazy one,"

United States v. Innamorati, 996 F.2d 456, 483 (1st Cir. 1993),

13 in this instance, this court concludes that the prosecutor's

statements were improper.

Hearns references numerous statements in the prosecutor's

summation to make his claims of impropriety. He contends that the

prosecutor improperly used the pronoun "we" multiple times when

summarizing the evidence presented at trial, thus placing the

prestige of his office behind the evidence and improperly

vouching for FB's credibility.

First, he contends that it was improper for the prosecutor

to use the pronoun "we" during closing. For example, when

discussing FB's testimony about the specifics of the alleged

assaults the prosecutor stated:

[l]et's talk about why if you believe her you should convict. Well, she's given you testimony. She's given you evidence. She's given you the elements of each crime and every crime. She has told you about four different events. . . . [The prosecutor describes specific testimony about the assaults.] Those are simple assaults. We know it was unprivileged physical contact. She didn't want it to happen and she communicated that. And we know he did it knowingly.

(Trial Tr. Vol. 3, 60-61 (brackets and emphasis added).)

Further, when discussing the elements of the crime, he stated:

[w]e know from the evidence in the case she's between 13 and 16 years of age. We know she's not married to him. And we know . . . that she was living with him. . . . So you have from her all of the evidence that you need to convict if you believe her.

Id. at 62 (brackets and emphasis added). Later, when discussing

jury instructions he stated:

14 [t]he Judge's instruction that the word of the victim does not need to be corroborated, and the reason is because we understand that these types of crimes occur in secret. . . . And we know it does not need to be corroborated because we know that sometimes these things are not reported for a while.

Id. at 62-63 (brackets and emphasis added).

Later, the prosecutor stated:

. . . if you believe her, you should convict. It's as simple as that. Why should we believe her? . . . Why should we believe her? The Judge just gave you a number of different criteria to look to, to judge people's credibility. You do this each and every day using your common sense and judgment. You do this. You look at a person and decide whether they are telling the truth. But if we think about specific things in this case, we recognize that she's telling the truth about what he did to her.

Id. at 63 (emphasis added).

Finally, when discussing FB's motives the prosecutor stated

that "one of the things we always take into account . . . is the

motive to lie," id. at 64 (emphasis added), and later that "we

have heard no evidence whatsoever that there is any motive for

her to falsely accuse that man." Id. at 66 (emphasis added).8

Although the prosecutor's statements were not "vouching" in

the traditional sense, they were improper because by using the

term "we", he was not only putting the prestige of his office

behind the evidence, see Auch, 187 F.3d at 131 (noting that use

8 Hearns also takes issue with one "we" statement that is clearly not improper. That statement simply concerns the order of his summation in that he told the jury "We'll talk more about Nick in a little bit." (Trial Tr. Vol. 3, 62.)

15 of "I think" or "I can even imagine" to impart personal belief is

improper); United States v. Gonzalez Vargas, 558 F.2d 631, 632

(1st Cir. 1977) ("I believe" or "I have proven" is improper), but

he was inviting the jury to become part of the prosecutorial

team. The prosecutor's tactic in this case, "[w]hile not

vouching in the most familiar sense, . . . does invite the jury

to rely on the prestige of the government . . . rather than the

jury's own evaluation of the evidence; to this extent the

argument presents the same danger as outright vouching." United

States v. Torres-Galindo, 206 F.3d 136, 142 (1st Cir. 2000) . The

key problem here is that the prosecutor's comments were not

simply declarative statements about the evidence presented by the

prosecution at trial (for example "we played you a tape"), but

were comments on the evidence where the "we" clearly referred to

the prosecutor and the jury as a single entity evaluating

elements of the offense or the credibility of witnesses (for

example "we know he did it knowingly" or "why should we believe

her" or "we recognize that she's telling the truth"). This is

improper. See Auch, 187 F.3d at 131 (although argument did not

use the prohibited "I think" language, it conveyed a personal

opinion to the jury and was improper).

Next, he contends that the state impermissibly bolstered

FB's credibility through a series of statements where he used the

16 term "we"9 when discussing FB's testimony. It is improper for a

prosecutor to impart his personal belief that a witness is

credible, although it is permissible to urge the jury draw that

conclusion on the basis of the evidence. See e.g.. Smith, 982

F.2d at 683-84. Hearns takes issue with the statements that

"fwje've told you [FB] really has no motive to lie about what she

said that man did to her . . . ." (Trial Tr. Vol. 3, 69

(emphasis added).) Further, when discussing why FB would chose

to remain at Hearns' apartment after the assaults started, the

prosecutor stated "given the situation, given the fact that she

recognized that it was either put up with this or perhaps go

home, it makes sense given who we know Felicia is . . . ." Id.

at 73 (emphasis added). Finally that "[t]he version of events is

credible given who we know she is. She's a troubled kid." Id.

at 75 (emphasis added). Again, this is clearly improper

argument. The essential objection to vouching is it risks

distracting the jury from its "assigned task of assessing

credibility based solely on the evidence presented at trial and

the demeanor of the [witnesses]." Perez-Ruiz, 353 F.3d at 10.

9 Hearns also contends that a series of seven declarative statements made by the prosecutor also impermissibly bolstered FB's credibility. See Hearns Mem. of Law in Supp. of Claims 1,2,3, at 7. Because this court concludes that these statements were simply asserting reasonable inferences from the evidence at trial, they were not improper. See United States v. Martinez- Medina, 279 F.3d 105, 119 (1st Cir. 2002) (no impropriety where comment provides a reason, nota personal assurance, why the jury should believe a witness,there was no misconduct.)

17 Again, the prosecutor was not only putting the prestige of his

office behind FB's credibility, but, with the exception of his

first statement, inferred that he and the jury act as a unit in

concluding that she was telling the truth. This is improper. See

id.

(iii) Misrepresentation

Hearns next asserts that in his closing, the prosecutor

impermissibly misrepresented: (1) FB's testimony regarding the

alleged assaults, and (2) the DNA evidence presented at trial.

It is improper for a prosecutor to comment on facts not in

evidence, see Auch, 187 F.3d at 129, or misrepresent evidence

actually presented at trial. Donnelly, 416 U.S. at 646. Such

comments are improper because they "may profoundly impress a jury

and have significant impact on the jury's deliberations." Id.

First, Hearns asserts that the prosecutor misrepresented the

evidence at trial when he stated that FB "never wavered as to

what that man did to her. . . . She didn't waver," (Trial Tr.

Vol. 3, 67), and asked " [d]id she embellish or exaggerate? Isn't

that what liars do? They embellish or exaggerate." Id. at 67-

68. He contends that these statements are improper because there

were inconsistencies in her statements to investigators before

trial regarding the number of times she was allegedly assaulted10

10 The inconsistencies cited by the defendant concern the number of assaults (ranging from zero to ten, or "a few" to

18 and that the prosecutor's statements implied that she had given a

consistent account of the number of alleged assaults throughout

the investigatory process.

Although the Warden, in his motion, concedes that the number

of incidents FB claimed occurred changed over the course of the

investigation, Hearns' claim is without merit. A prosecutor's

comments cannot be viewed in a vacuum, and must be analyzed in

the context they were presented. Cf. United States v. Robinson,

485 U.S. 25, 33 (1988) (stating general principle that

prosecutors comments must be viewed in context). The full text

of the statements were as follows:

Some of the things the Judge talked about is the appearance of the witness, the attitude of the witness, the behavior on the stand, the way the witness testified. She never wavered as to what that man did to her. Did you notice the defense didn't even cross- examine her on it? Why is that? Why?[11] She didn't waver. It became difficult for her to talk about it, but she told you what he did to her.

Did she embellish or exaggerate? Isn't that what liars do? They embellish or exaggerate. She gave you versions of these things that were very brief, very specific, but very brief.

"countless") and whether they occurred before or after FB moved in with Hearns. At trial, FB testified to three specific incidents.

11 As discussed supra, the statements about the defense's failure to cross-examine FB improperly shifted the burden of proof to the defense.

19 (Trial Tr. Vol. 3, 67-68.) Here, the prosecutor was not implying

that her story had been consistent throughout the investigation,

rather, he was specifically referring to her statements and

demeanor at trial. Prosecutors are allowed to suggest that the

jury make reasonable inferences from the evidence at trial.

United States v. Hernandez, 218 F.3d 58, 68 (1st Cir. 2000); see

Obershaw, 453 F.3d at 66. It is permissible to "call[] on the

jury to employ its collective common sense in evaluating the

evidence and to draw reasonable inferences therefrom."

Hernandez, 218 F.3d at 68. The comments at issue simply asked

the jury to draw an inference of credibility from the demeanor of

FB during her testimony and was not improper. Id., see Obershaw,

453 F.3d at 66 (comment that defendant lied was proper because

prosecutor was "simply urging the jury to draw a particular

conclusion from the evidence") .12

Hearns next asserts that the prosecutor mischaracterized the

DNA evidence presented by a criminalist with the New Hampshire

12 This case is easily distinguishable from Washington v. Hofbauer, 228 F.3d 689, 700 (6th Cir. 2000), relied on by Hearns. There, the prosecutor stated that a victim of sexual assault's account never changed during conversations with multiple individuals. The court found error because during trial, the prosecutor elicited no testimony on the specifics of a least three of four conversations noted during closing. Id. at 700-01. Here, the comments do not refer to specific conversations with others that were not part of the trial record, rather, they concern the demeanor of FB at trial.

20 State Police Forensic Laboratory. In his closing, the prosecutor

made the following statements about the DNA evidence:

What was interesting is those semen stains, if you remember, when they looked at them, were part of the nonsperm fraction, remember, which is consistent with an individual who has had a vasectomy. We learned it was his bed. They basically found the semen stains were consistent with his DNA. . . . His DNA comes back from the semen. Oh, you know what? It is consistent for hers as well. When the stains were tested, a mixed sample was found. The DNA was consistent with his DNA and the other source was consistent with hers.

(Trial Tr. Vol. 3, 70-71.) Essentially, Hearns contends that

"the DNA evidence was at best inconclusive," and thus, the

prosecutor's statement that the DNA found was consistent with

Hearns was "false and misleading" and constituted prosecutorial

misconduct. See Hearns Mem. of Law in Supp. of Claims 1, 2, 3,

at 13 .

Although it is misconduct for a prosecutor to misrepresent

facts in evidence, Donnelly, 416 U.S. at 646, Hearns' argument is

without merit. A prosecutor has the prerogative to summarize

facts supported by the record and argue reasonable inferences to

the jury. United States v. Martinez-Medina, 279 F.3d 105, 119

(1st Cir. 2002) . Here, the prosecutor was summarizing the DNA

expert's testimony regarding three semen stains found on Hearns'

bed sheets. See Obershaw, 453 F.3d at 66 (proper to summarize

evidence at trial). During trial, the criminalist testified that

there was a "mixed sample" of DNA consistent with Hearns and FB,

(Trial Tr. Vol. 1, 185, 187), and that there were three semen

21 stains consistent with Hearns. Id. at 187-88. Further, the

criminalist testified that when she analyzed the seminal

material, "I was not able to find any spermatozoa," id. at 183,

but that "[s]ometimes if you do not have sperm present, for

instance, sometimes a male cannot produce sperm, or if he's

vasectomized." Id. at 184. Accordingly, because the prosecutor

was fairly summarizing testimony at trial, Hearns' allegation of

misconduct is without merit. See, e.g., Martinez-Medina, 279

F.3d at 119 (prerogative of prosecutor to characterize evidence

presented at trial and argue inferences therefrom); Hernandez,

218 F .3d at 68.

(iv) Appeal to juror's emotions

Hearns next contends that the prosecutor impermissibly

appealed to the emotions of the jurors such that they were unable

to impartially decide his guilt or innocence. It is well settled

that "arguments urging a jury to act in any capacity other than

as the impartial arbiter of the facts in the case before it are

improper." Manning, 23 F.3d at 574. This court concludes,

however, that the prosecutor's comments in this instance were

permissible.

During the final moments of the prosecutor's closing, he

stated:

[n]o one was there to protect [FB] from that man's manipulation and from that man's taking advantage of a

22 situation. No one was there to protect her. But you are here now. You can tell her by your verdict that you believe her, that what he did to her was a crime. You can tell him that you recognize this is a crime, you know what happened and you're not going to tolerate taking advantage of children in our society.

(Trial Tr. Vol. 3, 82-83.)

Defense counsel objected and requested a mistrial with

prejudice. The trial court denied the defendant's motion,

concluding that "[i]t was not a direct appeal to sympathy." Id.

at 94. The court saw the prosecutor's comments as "a request to

the jurors to do the job as the State saw it under their role

which is to take the evidence, evaluate it and apply the law."

Id. On appeal, the New Hampshire Supreme Court concluded that:

[n]othing in the prosecutor's comments urged the jury to send a message, nor did the prosecutor play on the personal fears of the jurors concerning child molestation . . . . Rather, the prosecutor simply urged the jury to do its job - determine whether the victim was credible and, therefore, whether the defendant was guilty.

State v. Hearns, 855 A.2d at 556 (quotations omitted).

It is well settled that during summation a prosecutor may

not appeal to the passions or prejudices of a jury. See United

States v. Nelson-Rodriquez, 319 F.3d 12, 39 (1st Cir. 2003),

Martinez-Medina, 279 F.3d at 119. The Supreme Court has long

"counseled prosecutors to refrain from improper methods

calculated to produce a wrongful conviction . . . the adversary

system permits the prosecutor to prosecute with earnestness and

vigor . . . while he may strike hard blows, he is not at liberty

23 to strike foul ones." United States v. Young, 470 U.S. 1, 7

(1985)(citations, quotations, and ellipses omitted). The law in

this circuit is clear that " [a] prosecutor must refrain from

attempting to deflect the jury's attention from the narrow issue

of the defendant's guilt or innocence; any attempt to foist onto

the jury responsibility for the extrajudicial consequences of a

not-guilty verdict is improper." Auch, 187 F.3d at 132; see

Martinez-Medina, 279 F.3d at 119 (improper to appeal to jury's

role as conscience of community).

The government is not, however, restricted from arguing its

case vehemently and is not required to remain stoic or deliver

argument impassively. C f . Nelson-Rodriquez, 319 F.3d at 39 ("let

us make sure that . . . not one kilogram of cocaine more is

imported into Puerto Rico by these seven defendants" was not

improper). "Closing arguments traditionally have included

appeals to emotion. The outer limit on emotional appeals is

generally stated as a prohibition against arguments calculated to

inflame the passions or prejudices of the jury." Id.

Applying a de novo standard, this court concludes that the

prosecutor's statements, although close to the line,13 were not

13 This court is troubled by the prosecutor's statement during a subsequent bench conference that "there is nothing wrong with saying that by their verdict, they are telling her that they believe her and there is nothing wrong sending a message to the community in any way shape or form. I'm saying based on the evidence, tell him that you recognize what he did and that what he did was a crime." (Trial Tr. Vol. 3, 86 (emphasis added).)

24 impermissible. Here, the prosecutor was not exhorting the jury

to send a message to the greater community, but rather was

permissibly arguing that if they found FB credible, then the

result was that FB would understand that they believed her and

that Hearns would understand the consequences of his actions.

The prosecutor did not "impose a duty to decide one way or the

other," United States v. Mandlebaum, 803 F.2d 42, 44 (1st Cir.

1986), and as such, did not "distract [the] jury from its actual

duty: impartiality." Id.

Further, these comments were not the type of flagrant

appeals to emotion that the First Circuit has found problematic.

See generally, Vazquez-Botet, 532 F.3d at 58. It did not enlist

the jury to be crime fighters, see United States v. Arrieta-

Aqressot, 3 F.3d 525, 527-28 (1st Cir. 1993), or ask them to

protect the community by a guilty verdict, see United States v.

Whiting, 28 F.3d 1296, 1302 (1st Cir. 1994); United States v.

Moreno, 991 F.2d 943, 947 (1st Cir. 1993). Further, the comments

did not traverse into obviously forbidden territory like

conjuring up images of religious duty. C f . Levv-Cordero, 67 F.3d

at 1008.

Counsel should note that this circuit found error where the prosecutor urged the jury to "[t]ake responsibility for your community" by convicting the defendant. Manning, 23 F.3d at 572- 73. Although the prosecutor's stated belief is a concern, this court must analyze the issue in the context of comments actually heard by the jury. In that setting, the court finds no error.

25 Rather, "[i]n this case, the prosecutor's remarks were

confined to how [the parties] would react . . . ." and were thus

not improper comment. Auch, 187 F.3d at 133 (concluding that

comment that if jury found defendant not guilty, he would be

"laughing at you. He would be laughing all the way to the bank"

was not sufficiently flagrant to require reversal, even if

possibly improper). Simply put, FB would understand that she

testified credibly, and Hearns would understand that his actions

were criminal and not sanctioned by the jury. The statements did

not distract the jury from the issue of deciding whether the

evidence was sufficient to find Hearns guilty. Accordingly, this

court concludes these statements did not constitute prosecutorial

misconduct.

b. Effect of misconduct

Even though the court has concluded that the prosecutor

impermissibly shifted the burden of proof and engaged in improper

vouching,14 this court is required to determine whether these

misstatements "so infected the trial with unfairness as to make

the resulting conviction a denial of due process." Obershaw, 453

14 Hearns also objects to the introduction of paper towels containing evidence of nasal secretions and possibly semenal material, even though the paper towels were excluded from evidence pretrial. This argument fails because it could have no impact on the outcome of the case. The bodily fluids were never identified as to type or source and thus created no significant inference to the guilt or innocence of Hearns.

26 F.3d at 65. "It is not enough that the prosecutors' remarks were

undesirable or even universally condemned to constitute a

violation of the defendant's due process rights." Darden v.

Wainwriqht, 477 U.S. 168, 181 (1986); see Obershaw, 453 F.3d at

66. Even where multiple instances of improper summation occur,

due process is violated only if the improper arguments "had

substantial and injurious effect or influence in determining the

jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637, (1993)

(quotations omitted). In this case they did not.15 O f . Martinez-

Medina, 279 F.3d at 118 (in a direct appeal, although prosecutor

made several improper remarks, new trial not warranted).

Even if the prosecutor's arguments were improper and had

been deliberate and pervasive, see Olszewski, 466 F.3d at 59

(factors to consider include whether the statements were isolated

or deliberate), there would be no basis to conclude that they had

a substantial effect on the jury's verdict because the

testimonial and physical evidence of Hearns' guilt was so

strong.16 See id. at 61 (any prejudice outweighed by strength of

15 As noted supra, although I conclude that there were instances of misconduct, I remain mindful of the Supreme Court's admonition that it is improper to order a new trial "simply to punish prosecutorial misconduct." Vasquez-Botet, 532 F.3d at 59.

16 Further, at Hearns' request, the court instructed the jury on the proper burden of proof, thus dulling the prejudicial effect of at least the prosecutor's comment regarding the cross- examination of FB. O f . Roberts, 119 F.3d at 1015 (instructions can be sufficient to cure).

27 government's evidence). "The strength of the case against the

defendant often is the most significant factor to be balanced

against prosecutorial misconduct." Smith, 982 F.2d at 684; cf.

Darden, 477 U.S. at 182 (no relief based on improper argument

where evidence of guilt was heavy); Moreno, 991 F.2d at 948

(despite "patently improper" remarks, no prejudice where case

against defendant was "ample"). First, the DNA evidence

presented at trial revealed the presence of three separate mixed

samples stains of DNA consistent with both Hearns and FB. The

DNA expert testified that one explanation for such mixed samples

was sexual intercourse, and that the concentration of DNA present

could not be left by casual contact, but sexual intercourse. The

multiple stains and resulting inference of sexual intercourse

between FB and Hearns strongly supports the state's case and

renders less problematic any misstatements by the prosecutor.

C f . Olszewski, 466 F.3d at 61 (strength of government's evidence

outweighed effect of misstatements).

Further, FB gave vivid and detailed testimony about the

assaults. C f . Malone v. Clark, 536 F.3d 54, 65 (1st Cir. 2008)

(finding no prejudice in the ineffective assistance context,

despite lack of physical evidence where victim in a sexual

assault case gave a descriptive account of the abuse). Other

witnesses corroborated her testimony regarding the eventual

28 reporting of the assaults.17 Because the evidence at trial

strongly supported a guilty verdict, see Vazquez-Botet, 532 F.3d

at 58 (court found no prejudice in an extortion case where

government's case included testimony of multiple witnesses and

documentary evidence), there is no basis to conclude that Hearns

was denied due process even if the court deemed the prosecutor's

summation to be improper. The Warden is granted summary judgment

on this issue and Hearns' motion for summary judgment is

accordingly denied. C f . Amirault, 968 F.2d at 1406 (no habeas

relief despite extensive list of misconduct because petitioner

failed to make a showing that fairness of trial compromised).

B. Exculpatory evidence

Hearns next asserts that the trial court abused its

discretion when it denied his motion, within days of the

scheduled start of trial, to offer evidence, in the form of

testimony of two witnesses, of alternative sources of the DNA

found on bed sheets in the apartment. The court ruled that it

would grant Hearns' motion only if the State was allowed time to

17 As discussed, infra, the defense tried to undermine FB's credibility by eliciting testimony from two witnesses that FB and her brother planned to fabricate the allegations of sexual abuse. Thus, it is clear that the jury, which had the opportunity to observe and evaluate each witness, decided the question of credibility in favor of a guilty verdict and the court cannot easily discount that determination. C f . Malone, 536 F.3d at 65 (in evaluating strength of government's case, court viewed jury's credibility determination with great deference).

29 conduct further testing on the bed sheets. Hearns' counsel

objected, contending that he was being forced to choose between

his constitutional right to a speedy trial and right to present

exculpatory evidence, see U.S. Const, amend. VI. Accordingly,

Hearns asserts in his petition that because the court conditioned

admissibility on granting the State a continuance, he was

impermissibly required to choose between two constitutional

rights, requiring habeas relief.18 This claim also fails.

18 Hearns' habeas petition alleges that his rights were violated because the two witnesses who he hoped would offer alternative source evidence were also going to testify that FB and her brother fabricated the allegations of sexual abuse in order to steal Hearns' apartment and personal belongings. That testimony was eventually presented at trial by the two witnesses. This claim of error based on evidence that FB has a motive to lie is therefore without merit.

Further, in his motion for summary judgment, Hearns contends that the trial court's refusal to introduce this evidence affected his right to a fair trial. This claim has no merit. First, the court did not issue a blanket denial. He was given the opportunity to present the evidence had he agreed to the continuance. See Tavlor v. Illinois, 484 U.S. 400, 413 (1988)(noting that granting a continuance to provide the prosecution time for investigation is an option to preclusion where there is a late submission of evidence.) Further, this claim was not presented in his habeas petition. Rather, Hearns claimed only that being required to choose between a continuance and introduction of the evidence violated his constitutional rights. Accordingly, the claim that he was impermissibly forced to choose between constitutional rights was accepted by the Judge Magistrate, see Hearns v. Warden, 05-cv-413 (D.N.H. May 2, 2007) and this ruling was not objected to by Hearns. Accordingly, this court will not now address his additional claim that his fair trial rights were violated by improper exclusion of this alternative source evidence.

30 As a preliminary matter, this court reviews this claim on a

de novo basis. As already noted, the deferential AEDPA standard

of review applies only to claims that were "adjudicated on the

merits" in the state court, see 28 U.S.C. 2554(d); DiBenedetto,

272 F.3d at 6; otherwise, review by this court is de novo. Id.;

see, Dugas, 506 F.3d at 7; Pike, 492 F.3d at 67. In this case,

it is not clear that the state courts adjudicated Hearns' federal

claim. Although the trial court noted the defendant's exception,

the Supreme Court on direct appeal only addressed the state

constitutional claim, even though Hearns arguably raised it in

his pro se brief. See State v. Hearns, 855 A.2d at 559-60. The

federal constitutional claim was raised in Hearns' motion for a

new trial, but the trial judge's order states only that "several

of the defendant's claims of error by the court have already been

considered by the Supreme Court and rejected." State v. Hearns,

Nos. Ol-S-1189 et. a l ., Order - Mot. for New Trial (N.H. Superior

Court 8/8/05). Hearns' discretionary appeal of that ruling was

likewise summarily rejected. State v. Hearns, No. 2005-0644,

Order (N.H. Supreme Court 10/28/05). The First Circuit has held

that AEDPA's deferential standard of review does not apply where,

as here, a petitioner raises a federal claim before the state

court, but that claim was left unresolved. Horton, 370 F.3d at

80. We thus review this issue de novo. DiBenedetto, 506 F.3d at

7.

31 Although this court's review of this claim is de novo, AEDPA

requires "a separate and exacting standard applicable to review

of a state court's factual findings," Pike, 492 F.3d at 67. The

state court's findings are presumed correct unless Hearns can

"rebut the presumption of correctness by clear and convincing

evidence." 28 U.S.C. § 2254(e) (1) . Shortly before trial,

Hearns filed an untimely motion pursuant to New Hampshire

Superior Court Rule 100-A19 seeking to offer testimony of two

friends of FB, namely "BB" and "SB", that there had been sexual

activity between FB and her boyfriend in Hearns' apartment while

he was a work. The State, at trial, offered testimony of a

criminalist with the New Hampshire State Police Forensic

Laboratory that bed sheets from Hearns' apartment contained a

mixed sample of Hearns' semen and FB's DNA that was consistent

with sexual intercourse. The defense intended to offer testimony

of BB and SB about FB's alleged sexual activity as an alternative

source of FB's DNA on the bed sheets. During the hearing, the

State requested more time to conduct testing on the bed sheets

19 New Hampshire Superior Court Rule 100-A states in pertinent part: "Not less than forty-five (45) days prior to the scheduled trial date, any defendant who intends to offer evidence of specific prior sexual activity of the victim with a person other than the defendant shall file a motion setting forth with specificity the reasons that due process requires that he offer such evidence . . . . If the defendant fails to file such a motion, he shall be precluded from relying on such evidence, except for good cause shown." It is uncontested that Hearns' motion was submitted less than 45 days before trial.

32 and to prepare to question the witnesses. When the trial court

indicated that it was inclined to grant a continuance, the

defense objected, contending that the defendant did not want any

more delay in the start of trial and therefore, the court's

proposed order would "force him to give up one right that he has

in order to exercise another right he has . . . in violation of

. . . his right to speedy trial and his right to due process."

(Mot. Hr'g Tr. at 7.) The trial court ruled:

I've heard nothing to indicate that the evidence which the State was presented with at the last minute could not have been obtained earlier and presented to them in a timely fashion not necessitating a continuance. But to maintain any sense of fairness to the State, they would have to have time to be entitled to rebut such evidence to fully investigate it. They were as well not aware of the other witnesses who potentially would corroborate or deny these matters. Therefore, if the defendant elects to proceed to trial as scheduled on Monday, the defendant will not be allowed to introduce evidence of potential alternative sources of the DNA.

(Mot. Hr'g Tr. at 12.) The defendant elected to continue with

the trial as scheduled and as such, the alternative source

evidence was not admitted into evidence.20

Hearns contends that his situation mirrors that in Simmons

v. United States, 390 U.S. 377, 394 (1968), where the Supreme

Court found that the defendant was impermissibly forced to choose

20 Although there was no testimony regarding FB's sexual activity, there was evidence presented at trial that there were many teenagers at the apartment, including FB's brother, and the defense argued at closing that therefore, "there's a lot of possibility of [DNA] transfer from different people." (Trial Tr. V o l . 3, 50 .)

33 between his Fifth Amendment right against self incrimination and

his Fourth Amendment Right against unlawful search and seizure

when he was forced to testify during a suppression hearing in

order to establish standing. The Court found it "intolerable

that one constitutional right should have to be surrendered in

order to assert another." Id.; see United States v. Doe, 628

F .2d 694, 696 (1st Cir. 1980) .

In this case, however, Hearns did not face the

constitutional "Hobson's choice" that the Supreme Court found so

offensive. See Simmons, 390 U.S. at 391. The rights at issue

are of a different nature, cf. United States v. Melanson, 691

F.2d 579, 584 (1st Cir. 1981) (finding no violation of the

"Simmmons Rule" in part because right at issue is not absolute)

and, unlike Simmons, the dilemma was, in part, of the defendant's

own making.

It is informative to briefly describe the constitutional

landscape underlying Hearns' claim. "Whether rooted directly in

the Due Process Clause of the Fourteenth Amendment, or in the

Compulsory Process or Confrontation Clauses of the Sixth

Amendment, the Constitution guarantees criminal defendants a

meaningful opportunity to present a complete defense." Crane v.

Kentucky, 476 U.S. 683, 690 (1986) (citations and quotations

omitted)(relying on Chambers v. Mississippi, 410 U.S. 284, 302

(1973); Washington v. Texas, 388 U.S. 14, 23 (1967); Davis v.

34 Alaska, 415 U.S. 308, (1974) and quoting California v. Trombetta,

467 U.S. 479, 485 (1984)). Due Process entitles a defendant to

the fair opportunity to mount a defense against the State's

accusations, see Chambers, 410 U.S. at 294, and although "[t]he

Constitution guarantees a fair trial through the Due Process

Clauses, ... it defines the basic elements of a fair trial

largely through the several provisions of the Sixth Amendment."

Strickland v. Washington, 466 U.S. 668, 684-685 (1984).21 These

rights, however, are not absolute. See Chambers, 410 U.S. at 295

(confrontation rights may appropriately "bow to accommodate other

legitimate interests in the criminal trial process"), Tavlor, 484

U.S. at 410-11 (Compulsory Process Clause of the Sixth Amendment

does not grant defendants the unfettered right to offer

testimony). Levy-Cordero, 67 F.3d at 1012-13. "The adversary

process could not function effectively without adherence to rules

of procedure that govern the orderly presentation of facts and

arguments to provide each party with a fair opportunity to

assemble and submit evidence to contradict or explain the

opponent's case." Tavlor, 484 U.S. at 410-11. In fact, the

Supreme Court determined that failure to comply with the notice-

and-hearing requirements of state rape shield statutes may even

21 The relevant provisions of the Sixth Amendment provide: "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, . . . to be confronted with witnesses against him; to have compulsory process for obtaining witnesses in his favor, . . . . " U.S. Const, amend VI.

35 justify preclusion of probative evidence. Michigan v. Lucas, 500

U.S. 145, 152-53 (1991). Thus, trial courts may constitutionally

impose reasonable restrictions on a defendant's right to present

evidence in the interest of maintaining an orderly and fair trial

process. See Lucas, 500 U.S. at 149; Tavlor, 484 U.S. at 410-11.

Similarly, although the Sixth Amendment provides that "[i]n

all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial," a defendant's right to a speedy trial is

not absolute. See Doqqett v. United States, 505 U.S. 647, 651

(1992)(despite breadth of language, the Supreme Court has

qualified the scope of the right); Barker v. Winqo, 407 U.S. 514,

522 (1972)(speedy trial right is necessarily relative and does not

"preclude the rights of public justice").22 A defendant cannot

claim constitutional error where the delay is a result of his own

actions. See Rashad v. Walsh, 300 F.3d 27, (1st Cir. 2002); cf.

Barker, 407 U.S. at 529. In fact, the Supreme Court's "speedy

trial standards recognize that pretrial delay is often both

inevitable and wholly justifiable. The government may need time

to collect witnesses against the accused, oppose his pretrial

22 The Supreme Court, in Barker v. Winqo developed a four part balancing test to evaluate speedy trial claims. Barker, 407 U.S. at 530-33. Specifically whether: (1) the delay was unusually long, (2) the state or defendant is responsible for the delay, (3) the defendant asserted his right, and (4) whether the defendant was prejudiced by the delay. See, e.g., Doqqett, 505 U.S. at 651.

36 motions or, if he goes into hiding, track him down." Doqqett, 505

U.S. at 656.

Hearns' claim that he was forced into making what he viewed

as an unacceptable choice is without merit because the choice was

not fundamentally unfair, and was necessitated by his own actions.

First, even though Hearns' disclosure of new witnesses was

untimely under Superior Court Rule 100-A, the trial court did not

reject Hearns' motion outright, but, out of fairness to the

prosecution, appropriately conditioned the testimony on a

continuance. See United States v. Scheffer, 523 U.S. 303, 308

(1991)(alternative options to exclusion are usually appropriate);

Tavlor, 484 U.S. at 413 (noting that granting a continence to the

prosecution when faced with late disclosure of a witness is

appropriate); c f . Lucas, 500 U.S. at 150 (noting that rape shield

notice requirements protect against surprise to the prosecution).

Further, the right under the Compulsory Process Clause to

present testimony to rebut the state's case lies uniquely with the

defendant. Tavlor, 484 U.S. at 410. "The very nature of the

right requires that its effective use be preceded by deliberate

planning and affirmative conduct." Id. Here, Hearns wanted to

introduce testimony of FB's friends who, according to the evidence

at trial, were known to Hearns before he was arrested.23 Thus, the

23 Testimony at trial by both SB and BB indicated that they spent time at Hearns' apartment, were known to Hearns, and had conversations with Hearns prior to his arrest. (Trial Tr. Vol.

37 defense was in a position to interview these witnesses well before

trial, negating any need for the continuance that Hearns desired

to avoid. C f . Rashad, 300 F.3d at 40-41 (in evaluating the

prejudice prong of the Barker test, the court noted that to "the

extent that a defendant bears responsibility for causing periods

of delay, . . . any prejudice resulting therefrom is his own fault

and cannot redound to his benefit"). In light of the applicable

precedent, Hearns' contention that he is entitled to habeas relief

2, 53-53, 58, 112, 116-118.) Hearns contends that although he knew the witnesses, he had no knowledge of the alleged sexual activity of FB until after counsel had interviewed them and therefore he is not responsible for the late Rule 100-A motion. Even assuming this court would accept this argument, it does not resolve the fact that it is constitutionally acceptable for a trial court to grant a continuance out of concern for surprise to the prosecution where proffered testimony falls under the rape shield statute. See Lucas, 500 U.S. at 150.

38 on this claim is without merit.24 The court grants the Warden's

motion and denies Hearns' cross-motion on this claim.

C. Ineffective assistance of trial counsel

Hearns claims that errors made by counsel rendered their

performance constitutionally deficient and provides a basis for

habeas relief. See U.S. CONST, amend. VI; Strickland, 466 U.S.

668 (1984). Specifically, he claims that counsel: (1) failed to

interview a number of FB's friends, conduct interviews of other

witnesses in a timely manner, and properly investigate the source

of the silk sheet, (2) failed to file a motion to suppress the

entire contents of Hearns' apartment based on a claim it had been

ransacked by family members before the local police executed the

24 Hearns makes a final contention that he is not responsible for the late discovery of the testimony regarding alternative source evidence because one of FB's friends had contacted the police about a potential plot to "frame" Hearns shortly after Hearns was arrested. He claims, therefore, because the State allegedly did not follow up on that information, the defense was tardy in discovering the witness and therefore "should have been allowed unfettered use of it at trial." Hearns Mot. for Summ. J. at 25. This court disagrees. Although the prosecution has a duty to turn over exculpatory evidence to the defense, see Bradv v.Maryland, 373 U.S. 83 (1983), that duty does not encompass a duty to follow every investigatory avenue for the benefit of the defense. Cf. Ellsworth v. Warden, 333 F.3d 1, 6 (1st Cir. 2003) ("evidence is not suppressed if the defendant either knew, or should have known the essential facts permitting him to take advantage of any exculpatory evidence" (quotations and brackets omitted)). More importantly, the information that Hearns claims was presented to, and then ignored, by the State involving an alleged plot by FB to falsely accuse Hearns, was admitted at trial.

39 search warrant, (3) failed to properly challenge two witnesses and

the DNA evidence, and (4) objected only to one of the prosecutor's

alleged misstatements during closing arguments.

It is well settled that to demonstrate ineffective assistance

of counsel, a defendant bears the "very heavy burden," Lema v.

United States, 987 F.2d 48, 51 (1st Cir. 1993), of demonstrating

"that counsel's performance was deficient. This requires showing

that counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment. . . . [and] the defendant must show that the deficient

performance prejudiced the defense." Castillo, 348 F.3d at 11

(citing Strickland, 466 U.S. at 687). Courts must strongly

presume that "counsel's performance falls within the wide range of

professional assistance." Kimmelman v. Morrison, 477 U.S. 365,

381 (1986). When reviewing counsel's performance, a habeas

court's review is highly deferential, see Sleeper v. Spencer, 510

F.3d 32, 38 (1st Cir. 2007), and as such, "[t]he habeas court must

evaluate the challenged conduct from counsel's perspective at the

time, making every effort to eliminate the distorting effects of

hindsight." Horton, 370 F.3d at 86 (quotations and ellipses

omitted). To demonstrate prejudice, Hearns must show "a

reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would be different."

Strickland, 466 U.S. at 694; see United States v. De La Cruz, 514

40 F.3d 121, 140 (1st Cir. 2008). "A reasonable probability is a

probability sufficient to undermine confidence in the outcome."

Sleeper, 510 F.3d at 39.

As a preliminary matter, AEDPA's deferential standard is

applicable here. Although Hearns' motion for a new trial raised

numerous federal claims of deficient performance, the trial court

denied his motion in a summary fashion. It did not address each

claim individually, but concluded: "There is no basis for an

ineffective assistance of counsel claim as the evidence was so

overwhelming that there is no likelihood that counsel's

performance would have affected the outcome; however, the court

does not find counsel's performance deficient in any way." State

v. Hearns, Nos. Ol-S-1189, Order - Mot. for New Tr. (N.H. Superior

Court 8/8/05).25 As noted supra, mere recognition and disposition

25 The Superior Court's finding that there was "no likelihood" that the outcome of the case was affected is different from the standard in Strickland, 466 U.S. at 694, that a petitioner needs to show a "reasonable probability" that the errors resulted in a different outcome. This court is confident that the Superior Court was conducting a federal analysis because Hearns' motion cited Strickland and federal law exclusively. The Superior Court's use of language more favorable to the defendant ("no likelihood") appears intended simply to emphasize its finding of no prejudice given the evidence at trial. Therefore, this court will analyze whether the state court applied federal law in an objectively unreasonable manner. C f . Malone, 536 F.3d at 63 (because the state court "did not apply a legal rule that contradicts an established Supreme Court precedent," First Circuit conducted a deferential review despite the fact that state court relied on state standard); Sleeper, 510 F.3d at 38 (if resolved under standard more favorable than federal standard, federal court will presume federal adjudication is subsumed).

41 of the federal claim is sufficient to trigger AEDPA review. See

White, 399 F.3d at 23. Deferential review is appropriate even

though the New Hampshire Supreme Court summarily denied Hearns'

discretionary appeal, see State v. Hearns, No. 2005-0644, Order

(N.H. Supreme Court 10/28/05), because in conducting an AEDPA

analysis, courts "look through [to] the last reasoned decision,"

Gunter v. Maloney, 291 F.3d 74, 80 (1st Cir. 2002), in this case

that of the superior court.26

Hearns alleges multiple errors by trial counsel. In the

interest of judicial economy, the court assumes without deciding

that counsel's performance was deficient,27 yet still concludes

26 Analysis of ineffectiveness is a mixed question of law and fact, Gonzalez-Soberal v. United States, 244 F.3d 273, 274 (1st Cir. 2001), and therefore, federal courts are not bound by the state court's conclusions regarding prejudice and competence to the extent required by 28 U.S.C. § 2254(d). See Kimmelman, 477 U.S. at 388-89.

27 The record reveals, however, that Hearns' multiple complaints of error were either unsupported by the evidence or were permissible trial tactics on the part of defense counsel. Thus, the trial court reasonably concluded that counsel's performance was competent.

The court, however, must briefly dispense with one claim of error affecting a key piece of evidence: the satin bed sheet containing the mixed DNA samples. Hearns asserts that trial counsel was ineffective because it failed to file a motion to suppress the bed sheet on the basis that FB's brother and mother had access to Hearns' apartment and ransacked it for certain possessions--other than the bed sheet--before the local police executed the search warrant that resulted in collection of the bed sheet as evidence. Therefore, Hearns asserts that the evidence was tainted and should have been the subject of a motion to dismiss. This argument fails. First, FB's mother and brother were not state actors, thus their actions did not implicate

42 Hearns has not satisfied his burden of showing prejudice. The

First Circuit has held "that a reviewing court need not address

both requirements if the evidence as to either is lacking. That

is, if it is easier to dispose of an ineffectiveness claim on the

ground of lack of sufficient prejudice, which we expect will often

be so, that course should be followed." Malone, 536 F.3d at 64

(citations, quotations and brackets omitted).

To show prejudice, Hearns must establish that but for

counsel's alleged errors, there is a reasonable probability that

the result of his trial would have been different. See

Strickland, 466 U.S. at 694. Habeas courts "must consider the

Hearn's Fourth Amendment rights. See United States v. Momoh, 427 F.3d 137, 140 (1st Cir. 2005). Second, such activities go to the weight of the evidence, not the admissibility. C f . United States v. Barandica, 960 F.2d 143 (1st Cir. 1992); State v. Wall, 910 A.2d 1253, 1260 (N.H. 2006). Third, there was no factual basis for assuming that the bed sheet was taken or corrupted. Defense counsel did present evidence to FB's brother and mother entering the apartment before the search warrant was executed, but there was no testimony that a bed sheet was taken. (Trial Tr. Vol. 2, 33-39.) Counsel also argued that there were alternative sources of DNA, (Trial Tr. Vol. 3, 50), that the satin sheet may not have been on the bed when FB alleged sexual activity, id. at 44-45, and finally that the sheet was "a mess", and given the number of people in the apartment, "there was a lot of opportunity for contamination" id,, at 51-52. Counsel performance is not ineffective if he does not engage in futile tactics. Vieux v. Pejqe, 184 F.3d 59, 64 (1st Cir. 1999) . Consequently, I conclude that counsel exercised reasonable professional judgment in this context, see Sleeper, 310 F.3d at 39, and find no error. Cf. Kimmelman, 477 U.S. at 384-86 (although failure to file a suppression motion does not per se constitute ineffectiveness, counsel was constitutionally deficient where he conducted no pre­ trial discovery and there was "a complete lack of pretrial preparation").

43 strength of the evidence in deciding whether the Strickland

prejudice prong has been satisfied." De La Cruz, 514 F.3d at 140.

"In making this determination, a court hearing an ineffectiveness

claim must consider the totality of the evidence before the judge

or jury. . . . Moreover, a verdict or conclusion only weakly

supported by the record is more likely to have been affected by

errors than one with overwhelming record support." Gonzalez-

Soberal , 244 F.3d at 278 (quotations omitted).

The superior court was not unreasonable in its determination

that there was overwhelming evidence of guilt. As noted earlier,

the evidence included three mixed DNA samples consistent with

Hearns and the victim, c f . Malone, 536 F.3d at 67 (absence of

corroborating evidence other than testimony is factor in favor of

prejudice), as well as the victim's own detailed testimony about

the assaults. Further, in making a prejudice analysis, the First

Circuit has indicated that courts should give weight to a jury's

determination of credibility, especially where the witness's

credibility has been challenged. See Malone, 536 F.3d at 67.

Here, defense counsel impeached her credibility with testimony of

the alleged plot to frame Hearns and testimony about "parties" at

the apartment, even though she denied having them. Still, the

jury found FB credible regarding the allegations of sexual abuse.

C f . Malone, 563 F.3d at 67 (finding important that jury found

44 victim credible despite impeachment in determination of

prejudice).

The court acknowledges that in undertaking a prejudice

analysis, district courts must decide if any claims of error

"would have shaken the jury's beliefs in the essential elements of

the government's case at trial." Dugas, 506 F.3d at 9 (quotations

omitted). In order to succeed on an ineffectiveness claim,

however, it is not enough for Hearns to show that his claims of

error had "some conceivable effect on the outcome." Strickland,

466 U.S. at 693. Although Hearns makes multiple claims of

attorney error, many of these claims are unsupported by the record

or contend that counsel erred in investigating or proffering

testimony attacking the victim's credibility that most likely

would have been inadmissible or cumulative. See Vieux, 184 F.3d

at 64 (counsel not required to make specious arguments). Thus,

even assuming that additional testimony may have had a marginal

effect on the jury's view of FB's credibility, it would have been

unlikely to persuade the jurors to discredit the overwhelming DNA

evidence. Accordingly, Hearns has not undermined this court's

confidence in the outcome of the trial. See Dugas, 506 F.3d at 9.

Although "unreasonableness may, at times be difficult to

define" Malone, 536 F.3d at 67 (quotations omitted), this court

concludes that the superior court's finding of lack of prejudice

was reasonable. Accordingly, the state court did not unreasonably

45 apply the Strickland standard to this case. Therefore, this court

grants the Warden's motion for summary judgement and denies

Hearns' motion as to this issue.

D. Consecutive sentences

The petitioner challenges the legality of the sentences

imposed for his AFSA convictions. See N.H. Rev. Stat. Ann. § 632-

A:2, I(j)(1); N.H. Rev. Stat. Ann. § 632-A:10-a (Supp.

2001)(amended 2006); N.H. Rev. Stat. Ann. § 651:2 (1996 & Supp.

2001) (amended 2006), N.H. Rev. Stat. Ann. § 651:3, I (2007) . The

petitioner was sentenced to consecutive terms of 20-40 years for

two of the AFSA convictions. For the remaining two AFSA

convictions, he was sentenced to consecutive terms of 20-40 years,

to be suspended for 20 years from the date of his release.

The petitioner asserts that the state court erred when it

imposed the two consecutive AFSA sentences. Specifically, he

claims that these sentences violate federal law because: (a) the

state court lacks statutory authority to impose consecutive

sentences, (b) the state court violated his due process right to

fair notice because the statue is vague as to whether the

sentences may be imposed consecutively, and that due process

requires courts to apply the Rule of Lenity in his favor, and (c)

46 imposition of consecutive sentences violates the separation of

powers doctrine.28

The procedural posture of Hearns' claims is complex and

requires some discussion. Hearns' claims regarding his sentences

were raised in a "Petition to Correct Illegal Sentence or for

Habeas Relief" filed in the state court in November 2005. His

federal habeas petition was stayed in December 2005, pending

resolution of his state court claim. The trial court denied

Hearns' state court petition and he appealed that decision to the

New Hampshire Supreme Court in February 2006. That court deferred

screening of his appeal pending its decision in another case, see

Duquette v. Warden, 919 A.2d 767 (N.H. 2007), that presented

identical sentencing claims as Hearns. N.H. v. Hearns, No. 2006-

0076 (N.H. March 15, 2006). Hearns filed a brief as amicus curiae

in the Duquette appeal, along with seventeen other amici subject

to consecutive sentences, in June 2006. The New Hampshire Supreme

Court, after analyzing all of Duquette's statutory and

constitutional claims, upheld the imposition of consecutive

sentences in that case in January 2007. See Duquette, 919 A.2d at

739. The court subsequently denied Hearns' notice of appeal in

April 2007 holding that "[i]n light of the decision in Duquette v.

Warden, the notice of appeal is declined." N.H. v. Hearns, No.

28 In his petition, Hearns also claims that his sentences were disproportionate. As discussed supra, Hearns asserts only a state constitutional violation, and thus this claim fails.

47 2006-0076 (N.H. April 13, 2007)(citation omitted). The Magistrate

Judge lifted the stay on Hearns' claims in April 2007, and

directed the parties to proceed on all claims in May 2007.

Hearns' claims derive from the New Hampshire sentencing

statutes applicable to AFSA. See N.H. Rev. Stat. 632-A:10-a;

N.H. Rev. Stat. 651:2; N.H. Rev. Stat. 651:3. It is instructive,

for background purposes only, to review how the relevant statutory

provisions operate.29 See Creighton, 310 F.3d at 226; McCambridqe,

29 N.H. Rev. Stat. Ann. § 632-A:10-a provides in pertinent part:

Notwithstanding RSA 651:2:

I. A person convicted of aggravated felonious sexual assault under: . . . (b) Any provision of RSA 632-A:2 shall be sentenced to a maximum sentence which is not to exceed 20 years and a minimum which is not to exceed h of the maximum.

N.H. Rev. Stat. Ann. § 651:2 provides in pertinent part:

I. A person convicted of a felony or a Class A misdemeanor may be sentenced to imprisonment, probation, conditional or unconditional discharge, or a fine.

II. If a sentence of imprisonment is imposed, the court shall fix the maximum thereof which is not to exceed:

(a) Fifteen years for a class A felony,

(b) Seven years for a class B felony,

(c) One year for a class A misdemeanor.

N.H. Rev. Stat. Ann. § 651:3, I provides that:

A sentence of imprisonment commences when it is imposed if the defendant is in custody or surrenders into custody at that time. Otherwise, it commences when he becomes actually in custody.

48 303 F.3d at 26 (absent a showing of error, federal courts describe

the facts as found by the state courts); DiBenedetto, 272 F.3d at

7 n.l, (even where federal legal claim not adjudicated on the

merits, factual findings of the court are presumed correct); cf.

Hamm v. Latessa, 72 F.3d 947, 954 (1st Cir. 1995) ("the

preliminary question of parsing the state law to determine its

substance is not within the primary domain of a federal habeas

court") .

Both parties agree that the sentencing scheme applicable to

Hearns' AFSA convictions does not grant explicit statutory

authority to the courts to impose consecutive sentences.30 The New

Hampshire Supreme Court concluded in Duquette, however, that even

though the statutory scheme is silent as to consecutive sentences,

the trial court has the common law authority to impose such

punishments. See Duquette, 919 A.2d at 773. The court reviewed

state common law and concluded that "absent statutory dictates to

the contrary, [the state] courts have the common law authority to

impose consecutive sentences." Id. at 772.

30 At the time of Hearns' sentencing, N.H. Rev. Stat. Ann. § 651:2, Il-b provided for imposition of consecutive sentences for felonious use of a firearm, specifically that a court must impose a mandatory minimum sentence in addition to punishment for the underlying felony and that this additional sentence shall not be served concurrently or be suspended. See N.H. Rev. Stat. Ann. 651:2, II-b.

49 The court further concluded that this authority remained,

despite the fact that the legislature briefly revoked the courts

ability to impose consecutive sentences. See N.H. Rev. Stat. Ann.

651:3, III (1974) (repealed 1975) .31 That statute was repealed

shortly after its enactment, and the court in Duquette concluded

that since that time, "New Hampshire law no longer specifies

whether multiple sentences imposed run concurrently or

consecutively." Duquette, 919 A.2d at 771. The court examined

the legislative history of the repeal, noting in particular that

the "legislative history demonstrates that the legislature

intended to revive the common law through this repeal." Id. The

New Hampshire Supreme Court thus concluded that consecutive

sentencing was a common law discretionary power of the state

courts. Id. Thus, this court must now address whether Hearns'

consecutive sentences imposed under this sentencing regime were

illegal and serves as a basis for habeas corpus relief.

a. Statutory authority for consecutive sentences

Hearns asserts that the New Hampshire Supreme Court erred in

concluding that the trial court had the authority to impose

consecutive sentences. The Warden contends that because this

issue involves statutory interpretation of a state law, he is

31 This provision provided that any multiple sentences of imprisonment shall be served concurrently. See Rev. Stat. Ann. 651:3, III.

50 entitled to summary judgment as a matter of law. As discussed

supra, the state court recognized that the New Hampshire criminal

sentencing statues are silent as to consecutive sentences, but

concluded that the courts maintain the common law authority. The

state court also concluded that although RSA 651:3, III revoked

that authority in 1974, the legislature intended to restore the

courts' authority to impose consecutive sentences with that

statute's repeal in 1975. Hearns asserts that these conclusions

are incorrect as a matter of statutory interpretation, and

therefore imposition of his sentences violates due process. The

Warden contends that the New Hampshire Supreme Court's conclusions

are not subject to federal habeas review, and therefore he is

entitled to summary judgment as a matter of law.

It is well settled that federal courts are bound by the state

court's interpretation of state laws, see, e.g., Mullanev v.

Wilbur, 421 U.S. 684, 691 (1975); Rodriquez v. Spencer, 412 F.3d

29, 37 (1st Cir. 2005); Sabetti, 16 F.3d at 19 (on matters of

statutory interpretation state court is "authoritative interpreter

of state statutes"). As such, "the preliminary question of

parsing the state law to determine it's substance is not within

the primary domain of a federal habeas court." Hamm, 72 F.3d at

954 (citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ) .

Accordingly, it is inappropriate for this court to engage in

its own statutory analysis of the New Hampshire sentencing

51 scheme.32 Mindful that "it would be unprincipled to declare by

federal fiat that the Due Process Clause broadly nullifies the

[state's] power to construe and apply its laws correctly," Hamm 72

F.3d at 955, the Warden is entitled to summary judgment as a

matter of law on this claim. Therefore, the court grants the

Warden's motion and denies Hearns' motion.

b. Due Process Right to Fair Notice

Hearns next contends that his sentences are illegal as a

matter of law because they violate the "fair notice" requirement

of the Federal Constitution's Due Process Clause. U.S. CONST,

amends. V, XIV; see, e.g.. United States v. Lanier, 520 U.S. 259,

265-66 (1997); United States v. Batchelder, 442 U.S. 114, 123

(1979); Sabetti, 16 F.3d at 17.

32 Similarly, in Hebert v. Louisiana, 272 U.S. 312, 316 (1926), the Supreme Court rejected the claim that a state court's construction of a state law that increased a defendant's sentence violated due process, concluding:

[w]hether state statutes shall be construed one way or another is a state question, the final decision which rests with the courts of the State. The due process of law clause in the Fourteenth Amendment does not take up the statutes of the several States and make them the test of what it requires; not does it enable this court to revise the decisions of the state courts on questions of state law.

Accord Hamm, 72 F.3d at 954 (quoting this passage and noting the continued relevance of Hebert).

52 This court notes that this issue is properly reviewed

under the AEDPA's deferential standard. In Duquette, 919 A.2d at

773-74, the New Hampshire Supreme Court made clear that the

constitutional claims were considered under both the State and

Federal Constitutions. The court cited both federal and state

authority relevant to its analysis, and rejected the appellant's

claim first under the New Hampshire Constitution and then,

concluding that the Federal Constitution affords no greater

protection, rejected the federal claims as well. Id.; cf. White,

399 F.3d at 23 (similar analysis sufficient to trigger AEDPA). In

its order denying the petitioner's notice of appeal, the court

indicated that it had considered the petitioner's appeal in light

of the Duquette decision. In keeping with the policy

considerations of AEDPA, see, e.g.. White, 399 F.3d at 23,this

court infers that the New Hampshire Supreme Court considered the

petitioner's claim similarly, thus triggering AEDPA review. Cf.

DiBenedetto, 272 F.3d at 6 (whether a claim is "adjudicated on the

merits" is critical inquiry to trigger review) .33

33 The New Hampshire Supreme Court ruling did not specifically address the petitioner's Rule of Lenity claim. The rule, however, is one of statutory interpretation, see Sabetti,16 F.3d at 19, and also is invoked when needed to consider a constitutional due process fair notice claim. See Lanier, 520 U.S. at 266; United States v. Councilman, 418 F.3d 67, 83 (1st Cir. 2005). Thus, the court concludes that it was similarly considered and rejected by the New Hampshire Supreme Court and the issue is subject to AEDPA review. See White, 399 F.3d at 23; c f . McCambridqe, 303 F.3d at 35.

53 The Fifth Amendment provides that "[n]o person shall . . . be

deprived of life, liberty or property, without due process of law

. . . ." U.S. Const, amend V. Inherent in this provision is the

notion that individuals are entitled to sufficient notice that

their conduct is prohibited and could subject them to criminal

prosecution and penalties. See Batchelder, 442 U.S. at 123;

United States v. Marks, 430 U.S. 188, 191-92 (1977); Bouie v. City

of Columbia, 378 U.S. 347, 350-51 (1964). "The criminal law

should not be a series of traps for the unwary," United States v.

Hussein, 351 F.3d 9, 13 (1st Cir. 2003), and as such, due process

requires that individuals are entitled to "fair warning in

language that the common world will understand, of what the law

intends to do if a certain line is passed. To make the warning

fair, so far as possible the line should be clear." Lanier, 520

U.S. at 265 (quotations and ellipsis omitted). Individuals are

entitled to notice not only that their conduct is prohibited, but

"sentencing provisions may [also] post constitutional questions if

they do not state with sufficient clarity the consequences of

violating a given criminal statute." Batchelder, 442 U.S. at 123.

"Fair notice" challenges usually involve three related, but

distinct doctrines: (1) the vagueness doctrine, (2) the Rule of

Lenity, and (3) the bar against unforeseeably expansive judicial

construction. See Councilman, 418 F.3d at 82. Inherent in each

doctrine is the claim that a statute is so ambiguous that a

54 petitioner was insufficiently warned of potential criminal

liability. See id. "In each of these guises, the touchstone is

whether the statute, standing alone or as construed, made it

reasonably clear at the relevant time that the defendant's conduct

was criminal." Lanier, 520 U.S. at 266.

First, the court must consider Hearns' claim that the New

Hampshire sentencing scheme is unconstitutionally vague.34 Hearns

claims that he did not receive fair notice because the applicable

penalty provisions do not specify whether multiple sentences may

be imposed consecutively or concurrently. It is well settled that

a statute is unenforceable if its "terms are so vague that men of

common intelligence must necessarily guess at its meaning and

differ as to its application. Councilman, 418 F.3d at 84

(quotations omitted). "Vagueness of this sort raises the

possibility that ordinary people will not understand what conduct

is forbidden . . . ." Hussein, 351 F.3d at 14. "The person of

ordinary intelligence . . . should not have to guess at the

meaning of penalty provisions, or else those provisions are not

sufficiently clear to satisfy due process concerns." United

States v. Colon-Ortiz, 866 F.2d 6, 9 (1st Cir. 1989) .

34 "Vagueness challenges to statutes not threatening First Amendment interests are examined in light of the facts of the case at hand; the statute is judged on an as applied basis." Hussein, 351 F.3d at 14.

55 Sentencing statutes must be clear on their face to avoid a

vagueness attack. Id.; c f. Hussein, 351 F.3d at 15 (finding "no

ambiguity as might trigger a void for vagueness analysis"). As

such, the person of ordinary intelligence must be able to look at

the text of the sentencing provision and understand the potential

criminal liability. See, e.g., Sabetti, 16 F.3d at 17; cf.

Councilman, 418 F.3d at 84 (looking at text of Wiretap Act, person

of average intelligence was on notice of prohibited conduct).

It is not enough . . ., for the true meaning of the statute to be apparent elsewhere, in extra-textual materials such as legislative history or analogous statutes. The idea is that ordinary individuals trying to conform their conduct to law should be able to do so by reading the face of a statute - not having to appeal to outside materials.

Sabetti, 16 F.3d at 17 (quotations, citation, brackets, and

emphasis omitted).

Due Process, however, does not require perfect legislative

craftsmanship. "[T]he fact that the architects of the law might,

without difficulty, have chosen clearer and more precise language

equally capable of achieving the end which they sought does not

mean that the statute which they in fact drafted is

unconstitutionally vague." Hussein, 351 F.3d at 15 (quoting

United States v. Powell, 423 U.S. 87, 94 (1974))(quotations and

brackets omitted). Mathematical precision is not required and

"run-of-the mill statutory ambiguities" will not trigger a due

process violation. See, e.g., Sabetti, 16 F.3d at 18. "The

56 person of ordinary intelligence is also a person of common sense,

with knowledge of common understandings and practice which he

brings fully to bear in examining the language of the statute."

Hussein, 351 F.3d at 16 (quotations and brackets omitted and

emphasis added); see, e .q , Jordan v. De George, 341 U.S. 223, 231-

32 (1951) .

The New Hampshire Supreme Court concluded that as a matter of

state and federal constitutional law, the New Hampshire sentencing

scheme satisfies the notice requirements of due process. This

decision, as applied to Hearns, was not an unreasonable

application of federal constitutional law. While it is true that

the statute does not specify whether sentences should be served

concurrently or consecutively, due process does not allow Hearns

to turn a blind eye to common legal practices and then assert

constitutionally deficient notice. See Hussein, 351 F.3d 15-17;

c f . Connolly v. General Const. Co., 269 U.S. 385, 391 (1926)

("[T]he decisions of the [Supreme Court], upholding statutes as

sufficiently certain, rested upon the conclusion that they

employed words or phrases having . . . a well-settled common law

meaning, notwithstanding an element of degree in the definition as

to which estimates may differ . . . ."). Judicial discretion to

impose either consecutive or concurrent sentences has been the

state of the law in New Hampshire since "the beginning of the

Republic." Duquette, 919 A.2d at 771. Although that authority

57 was briefly abrogated in 1974 before it was reinstated in 1975,

see Duquette 919 A.2d at 771-73, it has been the common practice

in New Hampshire to afford judges the flexibility to impose

consecutive sentences for multiple offenses.35 Therefore, it is

not unreasonable to conclude that a person of ordinary

intelligence would understand that courts in New Hampshire have

the discretion to fashion punishments for multiple offenses,

occurring over a course of weeks, either concurrently or

consecutively. See Hussein, 351 F.3d at 15-16 (no undue surprise

for conviction of plant containing illegal substance where common

practice was to prohibit possession of not only chemical, but

plant matter containing chemical as well even if the text of the

statute prohibited only the chemical); cf. Rogers v. Tennessee,

532 U.S. 451, 462 (2001)(judicial abolition of common law "year-

and-a-day rule" did not create undue surprise because of common

practice in jurisdiction). A person of common sense would not

35 Although the petitioner in Duquette claimed that the common law rule was abrogated permanently in 1974, the New Hampshire Supreme Court disagreed and concluded that the common law rule was reinstated in 1975. Duquette 919 A.2d at 772. Even if we disagreed with that holding, see Hamm, 72 F.3d at 954 (federal courts are bound by the State courts's interpretation of its own laws unless it invokes a constitutional issue), consecutive sentencing has been the common practice in New Hampshire during the thirty-three years since N.H. Rev. Stat. Ann. 651:3, III was repealed.

58 suffer such undue surprise in this instance as to render the New

Hampshire sentencing statutes unconstitutionally vague.36

Hearns' next claimed denial of due process is that the Rule

of Lenity requires that statutory ambiguity be resolved in favor

of the accused. The Rule of Lenity, "a junior version of the

vagueness doctrine," Lanier, 520 U.S. at 266, is arule of

statutory construction mandating that where there is "grievous

ambiguity" in a penal statute, it is resolved in the defendant's

favor. Councilman, 418 F.3d at 83; United States V. Ahlers, 305

F.3d 54, 62 (1st Cir. 2002). It "ensures fair warning by so

resolving ambiguity in a criminal statute as to apply it only to

conduct clearly covered." Lanier, 520 U.S. at 266; see, e.g.,

Batchelder, 442 U.S. 121-22. The Rule of Lenity is properly

applied by a court only when the asserted ambiguity is "grievous.'

Councilman, 418 F.3d at 83. The mere existence ofsome ambiguity

is not sufficient to warrant its application. Id. " [M]ost

statutes are ambiguous to some degree, .... [therefore] lenity

36 Hearns also asserts that a person of ordinary intelligence would understand N.H. Rev. Stat. Ann. § 651:3, I, to mandate that multiple sentences be served concurrently. This argument is without merit. The text of this provision, see supra note 29, reveals that it pertains not to the question of whether sentences are consecutive or concurrent, but rather how to determine commencement of service for purposes of computing the time actually served by a convict. The title of that provision "Calculation of Periods" makes this clear. Thus, Hearns has no foundation on which to mount a fair notice challenge. See Hussein, 351 F.3d at 15 (finding language unambiguous and thus not subject to vagueness analysis).

59 applies only if, after seizing everything from which aid can be

derived, a court can make no more than a guess as to what [the

legislature] intended. Id. (Citations and quotations omitted.)

In invoking the rule of statutory construction, Hearns again

fails to realize that this court is bound by the state court's

construction of state law unless such construction is offensive to

the Constitution. Sabetti, 16 F.3d at 19; see Hamm, 72 F.3d at

954; Lurie v. Wittner, 228 F.3d 113, 126 (2d Cir. 2000)(noting

First Circuit rule that federal courts cannot apply Rule of Lenity

to state statute unless it is unconstitutionally vague or

otherwise fails to give fair notice); cf. Perez v. Campbell, 402

U.S. 637, 644 (1971) (where state supreme court has construed

statute and consistently adhered to this construction. United

States Supreme Court is bound by its rulings). Because there was

no fair notice violation, it is inappropriate, and indeed this

court lacks the authority, see Sabetti, 16 F.3d at 19, to apply

the Rule of Lenity to the New Hampshire sentencing statutes as

challenged. See id. (concluding that " [w]e have no power to apply

[the rule of lenity] to a state statute" because the state court

"is the authoritative interpreter of state statutes.")37

37 Indeed, even if this court could properly apply the Rule of Lenity in this case, it would be inappropriate because the statutory ambiguity present in this case is not "grievous". The legislative history pursuant to the repeal of RSA 651:3, III, reveals that the clear intent of the legislature was to give courts the flexibility to impose consecutive sentences. See Duquette, 919 A.2d at 771. It is well settled that where the

60 This court, therefore, concludes that the New Hampshire

Supreme Court properly determined that Hearns was not denied his

due process right to fair notice when he received consecutive

sentences pursuant to the New Hampshire sentencing statutes. The

court grants the Warden's motion for summary judgment on this

issue and denies Hearns' motion.

c. Separation of Powers

Hearns' final argument is that the New Hampshire sentencing

scheme violates the separation of powers doctrine of both the

state and federal constitutions because, he claims, "[jJudicial

design of a cumulative punishment, exceeding that expressly

granted by statute, is a form of substantive law-making

Constitutionally reserved to the Legislature." The New Hampshire

Supreme Court rejected a similar claim on state constitutional

grounds in Duquette, 919 A.2d at 775, see N.H. CONST, part I, art.

37, concluding that "[bjecause no usurpation of essential

legislative functions has been effectuated, the separation of

powers doctrine has not been violated." Duquette, 919 A.2d at

774. The Warden contends that this issue is not subject to

legislative history makes the statute clear, the ambiguity is not grievous and lenity is unavailable to the court. See Councilman, 418 F.3d at 83, reiving on Reno v. Korav, 515 U.S. 50, 65 (1995); Dixson v. United States, 465 U.S. 482 (1984).

61 federal court review and thus the Warden is entitled to summary

judgment as a matter of law.

First, as discussed supra, it is inappropriate for this court

on habeas review to examine matters of state law. See Evans, 518

F.3d at 5; Hamm, 72 F.3d at 954. Accordingly, the Warden is

entitled to summary judgment as a matter of law on Hearns' state

constitutional separation of powers claim.

Second, with respect to Hearns' separation of powers claim on

the basis of the Federal Constitution, it is well-settled that

"the concept of separation of powers embodied in the United States

Constitution is not mandatary in state governments." Sweezv v.

New Hampshire, 354 U.S. 234, 255 (1957). Thus, the states are

free to allocate powers amongst the various state branches of

government as they please. Minn, v. Clover Leaf Creamery Co., 449

U.S. 456, 463 n.6 (1981).

Whether the legislative, executive, and judicial powers of the state shall be kept altogether distinct and separate, or whether persons or collections of persons belonging to one department may, with respect to some matters, exert powers which, strictly speaking, pertain to another department of government, is for the determination of the state. And its determination one way or the other cannot be an element in the inquiry whether the due process of law prescribed by the 14th Amendment has been respected by the state or its representatives when dealing with matters involving life or liberty.

Drever v. Illinois, 187 U.S. 71, 84 (1902). As such, this court

cannot disturb Hearns' sentences on the ground that they violate

the federal separation of powers doctrine. See generally, 16

62 C.J.S. Constitutional Law § 216 (2008) (separation of powers

doctrine in the Federal Constitution is not enforceable against

the states as a matter of constitutional law). Summary judgment

is granted in favor of the Warden and Hearns' corresponding motion

is denied.38

E. Hearing

Finally, Hearns requests a hearing before this court.

Because no factual issues exist that would require a hearing, his

motion is denied. See 238 U.S.C. § 2254 (e) ; see also Rule 8 (c),

Rules governing § 2254 Cases; Local Rule 7.1(d).

38 Hearns also asserts that his sentences are illegal because New Hampshire's sentencing laws violate the state constitutional mandate against disproportionate sentences. See N.H. CONST. Part I, art. 18. The New Hampshire Supreme Court rejected this claim in Duquette, 919 A.2d at 774, concluding that "the petitioner has failed to persuade us that the sentencing scheme is unconstitutional because it necessarily results in sentences that are grossly disproportionate to the crime." Id. (quotations omitted). The Warden claims that this issue is not properly before the federal court and therefore he is entitled to summary judgment as a matter of law.

"[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a [sentence] violated the Constitution, laws, or treaties of the United States." Estelle, 520 U.S. at 67-68. In this matter, Hearns asserts only an error of state constitutional law, and it would be inappropriate for this court to disturb the finding of the New Hampshire Supreme Court on such matters. See Evans v. Thompson, 518 F.3d 1, 5 (1st Cir. 2008) . Therefore, this court agrees with the Warden and grants summary judgment in his favor on this issue and denies Hearns' motion.

63 IV. Conclusion

In the context of deciding the parties' motions for summary

judgment, this court has carefully reviewed the claims made in the

motions, the applicable legal standards, and the record. No

factual issues exist in this case that prevent a decision on the

merits at this time. As is discussed in detail above, to the

extent the state court addressed the issues Hearns raised, that

decision is not contrary to federal law as established by Supreme

Court precedent. With respect to the issues the state court did

not address, which were reviewed de novo, Hearns' conviction is

not in violation of his federal rights. Therefore, Hearns'

petition for a writ of habeas corpus is denied. Hearns' motion

for summary judgment (document no. 22) is DENIED, and the Warden's

motion for summary judgment (document no. 21) is GRANTED. All

other pending motions are denied as moot. The clerk shall enter

judgment accordingly and close the case.

SO ORDERED

Dated: September 30, 2008

cc: Dwayne Hearns, pro se Susan P. McGinnis, Esq.