Howard v . Warden, NHCF CV-05-277-PB 01/03/07
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Gary W . Howard
v. Civil N o . 05-cv-277-PB Opinion N o . 2007 DNH 001
Warden, Northern New Hampshire Correctional Facility
MEMORANDUM AND ORDER
Gary Howard was convicted of five counts of aggravated
felonious sexual assault and one count of second degree assault.
He was sentenced to consecutive ten-to-twenty-year terms on three
of the aggravated felonious sexual assault charges and suspended
sentences on the remaining charges. Howard is currently
incarcerated in the New Hampshire Correctional Facility (“NHCF”).
On August 4 , 2005, Howard filed a petition for a writ of
habeas corpus in this Court, arguing that his Sixth Amendment
right to effective assistance of counsel was violated by his
counsel’s strategic decision to concede all but one element of
the charged crimes. He also argues that the state trial court
violated his right to due process by failing to conduct a colloquy to determine whether he had authorized this strategy.
Larry Blaisdell, Warden of the NHCF, moves for summary judgment,
arguing that Howard's petition is without merit. For the reasons
set forth below, I grant the Warden's motion.
I. BACKGROUND1
On October 2 2 , 1999, Howard visited the home of his ex-wife,
Tina Howard, in Raymond, New Hampshire to spend the weekend with
his three sons and his twelve-year-old stepdaughter, K.A. Tina
Howard, K.A.’s mother, left shortly thereafter to spend the night
at her boyfriend’s house. Later that evening, and again in the
early morning hours of October 2 3 , 1999, Howard sexually
assaulted K.A.
At approximately 10:00 a.m. on October 2 3 , 1999, K.A.
telephoned her mother, informing her that Howard had raped her.
Within thirty minutes of the conversation, K.A.’s mother returned
to the residence with officers from the Raymond Police
1 The facts of the case are drawn primarily from the findings of the Rockingham County Superior Court in its order denying Howard’s motion for a new trial. State v . Gary Howard, 00-S-76-81, Rockingham Superior Court (N.H. Aug. 8 , 2004). Certain details have been filled in by consulting other exhibits.
-2- Department. K.A. then gave a statement to the police describing
the assault.
At approximately 3:30 p.m. that afternoon, officers took
K.A. to D r . Gwendolyn Gladstone, a pediatrician who specializes
in examining children in cases of potential abuse or neglect.
K.A. described the details of the rape to D r . Gladstone, who then
examined K.A. and found genital bruising, swelling and bruising
on the back of her head, a lip injury consistent with a bite, and
soreness in the muscles beneath her armpits. D r . Gladstone also
took photographs of the injuries and prepared a rape kit. At
Howard’s 2000 trial, D r . Gladstone opined--based on the nature of
K.A.’s genital injuries–-that vaginal penetration had occurred
within 48 to 72 hours of the examination.
Alan Giusti, a forensic DNA examiner with the Federal Bureau
of Investigation (“FBI”), testified at Howard’s trial that he had
tested several items from K.A.’s rape kit, including two vaginal
swabs and an underwear cutting stained with semen. According to
his testimony, the odds that semen he had obtained from the
vaginal swab and the underwear cutting came from a person other
than Howard were one in 15 trillion. K.A. also testified at
trial, providing a detailed account of the assaults.
-3- Howard did not testify. Moreover, his attorney did not
contest K.A.’s account of the night in question. Rather, he
argued in his opening and closing statements that Howard was too
intoxicated at the time of the assaults to have formed the intent
required for the charged offenses. He also elicited testimony to
that effect from K.A. Specifically, she testified that Howard
was “really, really drunk” on the night of the assaults.
Outside the presence of the jury on the second day of trial,
the prosecutor asked the court to make a record that Howard had
consented to his counsel’s strategy. The court asked Howard’s
counsel if he had discussed the strategy with Howard, and he
stated that he had done s o . The court did not discuss the issue
with Howard.
On August 1 1 , 2000, after a three-day trial, the jury found
Howard guilty of five counts of aggravated felonious sexual
assault and one count of second degree assault. Howard appealed
his convictions to the New Hampshire Supreme Court, asserting
that the trial court erred by declining to conduct a colloquy
regarding his counsel’s strategy. On April 9, 2003, the New
Hampshire Supreme Court affirmed his convictions.
-4- II. STANDARD OF REVIEW
Under the Anti-Terrorism and Effective Death Penalty Act of
1996 (“AEDPA”), I may grant Howard's petition for a writ of
habeas corpus only if the adjudication of his claims in state
court: (1) “resulted in a decision that was contrary to . . .
clearly established federal law, as determined by the Supreme
Court of the United States;” or (2) “involved an unreasonable
application” of such law. 28 U.S.C. § 2254(d); see Williams v .
Taylor, 529 U.S. 3 6 2 , 402-13 (2000) (interpreting § 2254(d));
Williams v . Matesanz, 230 F.3d 4 2 1 , 424-25 (1st Cir. 2000). In
this context, “clearly established federal law, as determined by
the Supreme Court of the United States” refers to the holdings of
the Supreme Court as of the time of the relevant state court
decision. See Williams, 529 U.S. at 412.
Accordingly, I must first ascertain whether the state
court's decision was contrary to relevant Supreme Court
precedent. See id. at 404-06; Williams, 230 F.3d at 426. A
decision is contrary to Supreme Court precedent if the state
court: (1) applied a rule that contradicts the governing law set
-5- forth by the Supreme Court; or (2) reached a different result
than the Supreme Court arrived at in a case involving materially
indistinguishable facts. See Williams, 529 U.S. at 404-08;
Williams, 230 F.3d at 424-25; see also Ramdass v . Angelone, 530
U.S. 156, 165-66 (2000) (plurality opinion of Kennedy, J . ) . In
essence, this initial inquiry requires Howard to show that
“Supreme Court precedent requires an outcome contrary” to that
reached by the state court. Williams, 230 F.3d at 425 (quoting
O'Brien v . Dubois, 145 F.3d 1 6 , 24-25 (1st Cir. 1998)).
If the state court's decision was not contrary to Supreme
Court precedent, I must then ask whether the state court’s
decision involved an “objectively unreasonable” application of
clearly established federal law, as determined by the Supreme
Court. See Williams, 529 U.S. at 407-11; Phoenix v . Matesanz,
233 F.3d 7 7 , 80-81 (1st Cir. 2000); Williams, 230 F.3d at 425. A
decision will not be deemed to be objectively unreasonable solely
because the state court applied the law erroneously or
incorrectly. See Williams, 529 U.S. at 409-12. Rather, to be
objectively unreasonable, the state court’s application of law
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Howard v . Warden, NHCF CV-05-277-PB 01/03/07
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Gary W . Howard
v. Civil N o . 05-cv-277-PB Opinion N o . 2007 DNH 001
Warden, Northern New Hampshire Correctional Facility
MEMORANDUM AND ORDER
Gary Howard was convicted of five counts of aggravated
felonious sexual assault and one count of second degree assault.
He was sentenced to consecutive ten-to-twenty-year terms on three
of the aggravated felonious sexual assault charges and suspended
sentences on the remaining charges. Howard is currently
incarcerated in the New Hampshire Correctional Facility (“NHCF”).
On August 4 , 2005, Howard filed a petition for a writ of
habeas corpus in this Court, arguing that his Sixth Amendment
right to effective assistance of counsel was violated by his
counsel’s strategic decision to concede all but one element of
the charged crimes. He also argues that the state trial court
violated his right to due process by failing to conduct a colloquy to determine whether he had authorized this strategy.
Larry Blaisdell, Warden of the NHCF, moves for summary judgment,
arguing that Howard's petition is without merit. For the reasons
set forth below, I grant the Warden's motion.
I. BACKGROUND1
On October 2 2 , 1999, Howard visited the home of his ex-wife,
Tina Howard, in Raymond, New Hampshire to spend the weekend with
his three sons and his twelve-year-old stepdaughter, K.A. Tina
Howard, K.A.’s mother, left shortly thereafter to spend the night
at her boyfriend’s house. Later that evening, and again in the
early morning hours of October 2 3 , 1999, Howard sexually
assaulted K.A.
At approximately 10:00 a.m. on October 2 3 , 1999, K.A.
telephoned her mother, informing her that Howard had raped her.
Within thirty minutes of the conversation, K.A.’s mother returned
to the residence with officers from the Raymond Police
1 The facts of the case are drawn primarily from the findings of the Rockingham County Superior Court in its order denying Howard’s motion for a new trial. State v . Gary Howard, 00-S-76-81, Rockingham Superior Court (N.H. Aug. 8 , 2004). Certain details have been filled in by consulting other exhibits.
-2- Department. K.A. then gave a statement to the police describing
the assault.
At approximately 3:30 p.m. that afternoon, officers took
K.A. to D r . Gwendolyn Gladstone, a pediatrician who specializes
in examining children in cases of potential abuse or neglect.
K.A. described the details of the rape to D r . Gladstone, who then
examined K.A. and found genital bruising, swelling and bruising
on the back of her head, a lip injury consistent with a bite, and
soreness in the muscles beneath her armpits. D r . Gladstone also
took photographs of the injuries and prepared a rape kit. At
Howard’s 2000 trial, D r . Gladstone opined--based on the nature of
K.A.’s genital injuries–-that vaginal penetration had occurred
within 48 to 72 hours of the examination.
Alan Giusti, a forensic DNA examiner with the Federal Bureau
of Investigation (“FBI”), testified at Howard’s trial that he had
tested several items from K.A.’s rape kit, including two vaginal
swabs and an underwear cutting stained with semen. According to
his testimony, the odds that semen he had obtained from the
vaginal swab and the underwear cutting came from a person other
than Howard were one in 15 trillion. K.A. also testified at
trial, providing a detailed account of the assaults.
-3- Howard did not testify. Moreover, his attorney did not
contest K.A.’s account of the night in question. Rather, he
argued in his opening and closing statements that Howard was too
intoxicated at the time of the assaults to have formed the intent
required for the charged offenses. He also elicited testimony to
that effect from K.A. Specifically, she testified that Howard
was “really, really drunk” on the night of the assaults.
Outside the presence of the jury on the second day of trial,
the prosecutor asked the court to make a record that Howard had
consented to his counsel’s strategy. The court asked Howard’s
counsel if he had discussed the strategy with Howard, and he
stated that he had done s o . The court did not discuss the issue
with Howard.
On August 1 1 , 2000, after a three-day trial, the jury found
Howard guilty of five counts of aggravated felonious sexual
assault and one count of second degree assault. Howard appealed
his convictions to the New Hampshire Supreme Court, asserting
that the trial court erred by declining to conduct a colloquy
regarding his counsel’s strategy. On April 9, 2003, the New
Hampshire Supreme Court affirmed his convictions.
-4- II. STANDARD OF REVIEW
Under the Anti-Terrorism and Effective Death Penalty Act of
1996 (“AEDPA”), I may grant Howard's petition for a writ of
habeas corpus only if the adjudication of his claims in state
court: (1) “resulted in a decision that was contrary to . . .
clearly established federal law, as determined by the Supreme
Court of the United States;” or (2) “involved an unreasonable
application” of such law. 28 U.S.C. § 2254(d); see Williams v .
Taylor, 529 U.S. 3 6 2 , 402-13 (2000) (interpreting § 2254(d));
Williams v . Matesanz, 230 F.3d 4 2 1 , 424-25 (1st Cir. 2000). In
this context, “clearly established federal law, as determined by
the Supreme Court of the United States” refers to the holdings of
the Supreme Court as of the time of the relevant state court
decision. See Williams, 529 U.S. at 412.
Accordingly, I must first ascertain whether the state
court's decision was contrary to relevant Supreme Court
precedent. See id. at 404-06; Williams, 230 F.3d at 426. A
decision is contrary to Supreme Court precedent if the state
court: (1) applied a rule that contradicts the governing law set
-5- forth by the Supreme Court; or (2) reached a different result
than the Supreme Court arrived at in a case involving materially
indistinguishable facts. See Williams, 529 U.S. at 404-08;
Williams, 230 F.3d at 424-25; see also Ramdass v . Angelone, 530
U.S. 156, 165-66 (2000) (plurality opinion of Kennedy, J . ) . In
essence, this initial inquiry requires Howard to show that
“Supreme Court precedent requires an outcome contrary” to that
reached by the state court. Williams, 230 F.3d at 425 (quoting
O'Brien v . Dubois, 145 F.3d 1 6 , 24-25 (1st Cir. 1998)).
If the state court's decision was not contrary to Supreme
Court precedent, I must then ask whether the state court’s
decision involved an “objectively unreasonable” application of
clearly established federal law, as determined by the Supreme
Court. See Williams, 529 U.S. at 407-11; Phoenix v . Matesanz,
233 F.3d 7 7 , 80-81 (1st Cir. 2000); Williams, 230 F.3d at 425. A
decision will not be deemed to be objectively unreasonable solely
because the state court applied the law erroneously or
incorrectly. See Williams, 529 U.S. at 409-12. Rather, to be
objectively unreasonable, the state court’s application of law
must be so erroneous or incorrect as to fall “outside the
-6- universe of plausible, credible outcomes.” Williams, 230 F.3d at
425 (quoting O'Brien, 145 F.3d at 2 5 ) ; see Williams, 529 U.S. at
409-11 (rejecting the “reasonable jurist” standard as
impermissibly subjective).
AEDPA’s deferential standard of review applies only to
claims adjudicated on the merits in the state court proceedings.
Norton v . Spencer, 351 F.3d 1 , 5 (1st Cir. 2003) (citations
omitted). For claims not adjudicated on the merits by the state
court, I apply a de novo standard of review. Id.
III. ANALYSIS
A. Due Process
Howard contends that the state court deprived him of his
Fourteenth Amendment right to due process by failing to conduct a
colloquy regarding his attorney’s strategic decision to concede
all but one element of the charged offenses. Because the New
Hampshire Supreme Court adjudicated this claim on the merits, the
AEDPA’s deferential standard of review applies.
In cases involving a guilty plea or its functional
equivalent, the trial court must conduct a colloquy with the
-7- defendant to determine that he has knowingly and voluntarily
waived his rights to a jury trial, to confront his accusers, and
to avoid self-incrimination. See Boykin v . Alabama, 395 U.S.
238, 243-44 (1969); State v . Foote, 149 N.H. 323, 325 (2003).
Howard, however, has failed to cite any Supreme Court decision
that could reasonably be construed to require a similar colloquy
when a defendant concedes certain elements of a charged offense
at trial in order to focus the jury’s attention on alleged
weaknesses in the prosecution’s case with respect to other
elements.
Here, Howard’s counsel argued in his opening statement and
closing argument that intoxication prevented Howard from forming
the mental state required for conviction. Given the overwhelming
evidence offered by the prosecution to support its claim that
Howard had committed the charged assaults, and the existence of
at least some evidence to support counsel’s argument that Howard
was too intoxicated to act with the requisite intent, this was a
viable defense strategy. Supreme Court precedent simply does not
require a colloquy between the court and the defendant under such
circumstances.
-8- B. Ineffective Assistance of Counsel
Howard also claims that his attorney’s strategy of conceding
all but one element of the charged offenses violated his Sixth
Amendment right to effective assistance of counsel. Because the
state court did not address this argument, I review it de novo.
Fortini v . Murphy, 257 F.3d 3 9 , 47 (1st Cir. 2001).
An ineffective assistance of counsel claim can only be
successful if petitioner shows: “(1) that counsel's
representation ‘fell below an objective standard of
reasonableness,’ and (2) that counsel's deficient performance
prejudiced the defendant.” Roe v . Flores-Ortega, 528 U.S. 4 7 0 ,
476-77 (2000) (quoting Strickland v . Washington, 466 U.S. 6 6 8 ,
688 (1984)). Petitioner bears the burden of showing both
ineffectiveness and prejudice. Scarpa v . DuBois, 38 F.3d 1 , 8-9
(1st Cir. 1994).
Here, even if Howard could satisfy the first prong of the
Strickland test, he has not met his burden with respect to the
second prong. To satisfy the prejudice prong, Howard must
establish that “there [was] a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding
-9- would have been different.” Strickland, 466 U.S. at 694. Where
the evidence in a case is overwhelming, an attorney’s “strategy
to concede the other elements of the offense [is] reasonable” and
therefore unlikely to prejudice to a defendant. See Arnold, 126
F.3d at 8 9 . In this case, the evidence that Howard engaged in
the alleged conduct--i.e., the victim’s detailed testimony,
corroborating medical evidence, and the presence of semen on the
vaginal swabs and underwear cutting with a DNA profile matching
Howard’s--was overwhelming. Accordingly, his attorney’s
“‘intent’ defense was appropriately directed at the most
questionable aspect of the Government's case:” proving that
Howard acted with the requisite mental state on the night in
question. See Arnold, 126 F.3d at 8 9 .
Howard’s argument that this strategy was prejudicial and
that the result of the trial would have somehow been different if
his attorney had contested the other elements of the crimes is
unpersuasive given the record before m e . Thus, I hold that
Howard’s ineffective assistance of counsel claim lacks merit.
-10- IV. CONCLUSION
For the reasons set forth herein, I grant the Warden’s
motion for summary judgment (Doc. N o . 2 3 ) . The clerk is
instructed to enter judgment accordingly.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
January 3 , 2007
cc: Gary W . Howard, pro se Nicholas P. Cort, Esq.
-11-