Jaroma v. Cunningham CV-94-601-JD 11/14/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
A1 Jaroma
v. Civil No. 94-601-JD
Cunningham, Warden New Hampshire State Prison
O R D E R
A1 Jaroma, proceeding pro se and in forma pauperis,
petitions for a writ of habeas corpus attacking the
constitutionality of his state court conviction for burglary.
The state, on behalf of the warden, has moved for summary
judgment, relying in large part on the decisions of the state
courts in Jaroma's direct appeal and state habeas corpus
proceedings.
BACKGROUND1
Jaroma was convicted in June 1990 on one count of burglary
and sentenced to serve two and one-half to five years at the New
1The court accepts the facts determined by the New Hampshire Supreme Court and reported in State v. Jaroma, 137 N.H. 562 (1993), as they are undisputed. See 28 U.S.C.A. § 2254(d) (1994) . Hampshire State Prison.2 The burglary charge arose from a stop
and arrest after an Allenstown police officer saw Jaroma drive
out of the parking lot of several businesses, including the
Allenstown Convenience Store, at 4:30 a.m., when all of the
businesses were closed. When Jaroma could not produce a vehicle
registration and the officer identified him from his drivers'
license as a known burglar, the officer radioed police to check
the nearby businesses. Jaroma then offered different versions of
his whereabouts during the evening and the officer concluded that
he was lying. The officer arrested Jaroma for loitering and
prowling in violation of N.H. Rev. Stat. Ann. ("RSA") § 644:6.
After Jaroma and the officer arrived at the police station, the
officer learned that the Allenstown Convenience Store had been
burglarized and obtained a warrant to search Jaroma's car.
Jaroma was first charged with violating the loitering statute,
and later with burglary of the convenience store.
The Hooksett District Court dismissed the loitering charge
against Jaroma after finding that the stop and arrest was invalid
because the officer had no reasonable basis for stopping Jaroma.
2Jaroma has completed his sentence for this conviction but is now serving a consecutive sentence and remains in prison. The court previously found unavailing the state's argument that dismissal is warranted because Jaroma is no longer in custody for the conviction he is challenging. See Order, June 8, 1995 (citing Garlotte v. Fordice, 115 S. C t . 1948 (1995)).
2 Before his trial on the burglary charge in the superior court,
Jaroma's counsel moved to suppress the evidence discovered in his
car, again challenging the validity of the stop and arrest.
However, the superior court held that when the officer stopped
Jaroma, he had a sufficient basis to make an investigatory stop,
and that he then had probable cause to arrest Jaroma under the
loitering statute. The superior court denied the motion to
suppress and Jaroma was later convicted on the burglary charge.
Following his conviction, Jaroma moved for a new trial, arguing
the ineffective assistance of trial counsel on the suppression
issue. The superior court denied his motion on April 2, 1993.
Thereafter, he separately appealed his conviction and the court's
denial of his motion for a new trial.3
In his appeal challenging his conviction, Jaroma argued that
the trial court erred in denying his motions to suppress; in
admitting evidence seized as a result of a constitutionally
infirm search of his car; and in denying him his rights to an
impartial jury, due process, and a fair trial by failing to ask
all submitted voir dire guestions and selecting the jury
foreperson. The New Hampshire Supreme Court held that Jaroma had
3Jaroma was represented by two different lawyers during the preparation and trial on the burglary charge. Following his conviction, two other lawyers were appointed to represent him in moving for a new trial and on appeal.
3 not preserved for appeal his argument that the doctrine of
collateral estoppel barred the prosecution from relitigating the
legality of the stop and arrest in the superior court, and
affirmed the superior court on the other issues raised on appeal.
It later summarily affirmed the superior court's denial of
Jaroma's motions for a new trial.
Jaroma then petitioned pro se for a writ of habeas corpus in
state court, alleging that the police used false testimony to
"set up" his burglary conviction and that both the prosecutor and
his own counsel knew of the false testimony but did nothing. He
again argued that the district court's decision on the invalidity
of the stop and arrest should have barred relitigation of the
issue in superior court. He challenged the legality of the
search of his car, alleging that the trunk was searched once
before the police obtained a warrant and that the warrant they
obtained was invalid, and argued ineffective assistance of
counsel based on his lawyer's failure to file a motion to
suppress on this ground. The superior court denied the petition
in an order dated February 7, 1994, and the supreme court
declined the appeal. Jaroma then filed his habeas corpus
petition in this court.
4 DISCUSSION
In habeas corpus proceedings, as in other civil actions,4
summary judgment is only appropriate if the facts taken in the
light most favorable to the nonmoving party show that no genuine
issue of material fact exists and that the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);
Guzman-Rivera v. Rivera-Cruz, 29 F.3d 3, 4 (1st Cir. 1994) . On
issues that the nonmoving party must prove at trial, the moving
party initially need only allege the lack of evidence to support
the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986). The nonmoving party cannot rely on the
pleadings alone to oppose summary judgment, but must come forward
with properly supported facts to demonstrate a genuine factual
dispute for trial. Id. at 323-24 (1986) . When the facts are
undisputed, to prevail the moving party must show that it is
entitled to judgment as a matter of law. Desmond v. Varrasso (In
re Varrasso), 37 F.3d 760, 764 (1st Cir. 1994).
Because Jaroma is a pro se petitioner, the court construes
his pleadings broadly but, nevertheless, reguires him to meet the
summary judgment standard. See, e.g.. United States v. Michaud,
925 F.2d 37, 41 (1st Cir. 1991). Therefore, the court considers
4 Fed. R. Civ. P. 81(a)(2); see also Williams v. Scott, 35 F.3d 159, 161 (5th Cir. 1994), cert, denied, 115 S. C t . 959 (1995) .
5 the state's motion for summary judgment and Jaroma's response in
light of the applicable summary judgment standard and also
restates Jaroma's claims where necessary.
Claims in Support of Habeas Relief
Jaroma's petition for a writ of habeas corpus is divided
into eight separately numbered and captioned issues. These are:
"Issue I, Res Judicata-Collateral Estoppel Doctrine"; "Issue II,
Exculpatory Evidence, Appointment of Counsel and Services Other
Than Counsel"; "Issue III, Illegal Search and Seizure"; "Issue
IV, Prosecutorial Misconduct"; "Issue V, Ineffective Assistance
of Counsel"; Issue VI, Constitutionality of New Hampshire's
Statute R.S.A. 644:6 Loitering and Prowling"; "Issue VII, Voir
Dire of the Jury Panel"; and "Issue VIII, Due Process and
Impartial Jury Selection." However, many of the allegations are
repeated in different issues and the titles do not accurately
reflect the claims made, causing some confusion about the grounds
raised for habeas relief.
Despite its organization, captions, and repetitious
allegations, in essence the petition presents six grounds for
habeas relief: (1) violation of due process by allowing the
state to relitigate the validity of the stop; (2) ineffective
assistance of counsel based on several alleged deficiencies; (3)
6 prosecutorial misconduct; (4) invalidity of the search of the car
based on the unconstitutionality of the New Hampshire loitering
statute; (5) violation of due process and the right to a fair
trial by the trial court's decision not to give all reguested
voir dire guestions, and (6) violation of due process and the
right to a fair trial by the court's designation of a jury
foreperson before choosing alternate jurors. The court addresses
each claim seriatim.
A. Due Process: Relitigating the Validity of the Stop
Jaroma argues that the superior court erred by allowing the
state to relitigate the lawfulness of the stop in superior court
after the district court had determined that the stop was
unlawful. He suggests that this claim is based upon the doctrine
of collateral estoppel. However, in this court, his claim is
more properly characterized as a due process violation.5 The
state contends that Jaroma is procedurally barred from raising
this issue in a federal habeas corpus petition.
5Jaroma need not litigate his due process claim in state court before raising it here because the state courts would decline to consider the claim for the same reason that the New Hampshire Supreme Court declined to consider Jaroma's collateral estoppel claim. Under these circumstances, express exhaustion is not reguired. See Coleman v. Thompson, 501 U.S. 722, 732 (1991) ("A habeas petitioner who has defaulted his federal claims in state court meets the technical reguirements for exhaustion . . . .") .
7 A procedural default in state court based upon an
independent and adequate state ground will bar habeas corpus
relief in federal court unless the petitioner can show either
cause for the default and prejudice resulting from an alleged
violation of federal law, or that a "fundamental miscarriage of
justice" will result if the claim is not considered. Coleman,
501 U.S. at 750. Jaroma argues that his failure to object to the
relitigation of the issue in state court was caused by his
counsel's ineffective assistance. In some circumstances,
ineffective assistance of counsel can be sufficient cause to
excuse a procedural default. See Murray v. Carrier, 477 U.S.
478, 486 (1986). However, "the mere fact that counsel failed to
recognize the factual or legal basis for a claim, or failed to
raise the claim despite recognizing it, does not constitute cause
for a procedural default." Id.
Jaroma's claim is based on the premise that a state district
court can issue findings that are binding in a subsequent felony
trial in superior court. In 1981, the New Hampshire Supreme
Court expressly rejected this premise on the ground that it would
undermine the exclusive jurisdiction of the superior court over
the ultimate resolution of felony cases. See State v. Stevens,
121 N.H. 287, 288-89 (1981). Accordingly, Jaroma's trial counsel
could not be considered ineffective for failing to raise an issue that was bound to fail. The court grants summary judgment on
this issue.
B. Ineffective Assistance of Counsel
Jaroma alleges that his trial and post-trial counsel were
ineffective for a number of reasons. Specifically, he contends
that counsel failed to: (1) investigate his claim; (2) make
effective use of exculpatory evidence; (3) inform the jury that
certain incriminating evidence was false; (4) challenge the
validity of the search warrant effectively; and (5) raise and
argue certain issues properly in post-trial proceedings. The
state argues that Jaroma procedurally defaulted on several of his
ineffective assistance claims and denies that counsel was
ineffective. However, the state has made no attempt to develop
its arguments other than to cite without explanation to several
state court orders. Under these circumstances, the court
declines to address its argument.6
The state's entire argument on the ineffective assistance issue is as follows: Issue III and Issue V of the Petition raise allegations of ineffective assistance of counsel. In a number of pleadings and for a variety of reasons, the petitioner has raised allegations that all of his court appointed counsel were ineffective. All of these claims have been rejected both by the New Hampshire Supreme Court and the Superior Court. See State v. Jaroma, 137 N.H. at 571-72; Order, dated April 2, 1993; Order dated February 7, 1994. For the reasons set forth in those C. Prosecutorial Misconduct
Jaroma alleges the prosecutor knew that his case against
Jaroma was based on false testimony and allowed a police witness
to give false testimony at Jaroma's trial. The state moves for
summary judgment on this issue on the ground that Jaroma can
produce no evidence to support his allegations. In response,
Jaroma explains that the prosecutor was aware of the contents of
a sealed file pertaining to the police witness and knew that it
undermined his credibility.7 In his petition, he also
acknowledges that the prosecutor informed the court of the
witness's credibility problem during trial.
Jaroma has produced no evidence to show that perjured
testimony was given during trial or that the prosecutor withheld
exculpatory evidence from the defense. Although he makes general
references to the trial transcript in support of his claims of
perjury, these references are insufficient to establish a dispute
of material fact. Jaroma has not met his burden in opposing
decisions, the Court should also reject the petitioner's ineffectiveness allegations.
7To the extent Jaroma argues that the prosecutor withheld exculpatory evidence from him (or his defense) , the facts do not support his claim. The only exculpatory evidence he has discussed is the sealed file of the police officer witness, which was provided to Jaroma's trial counsel. See Superior Court Order dated February 7, 1994, at *4. Jaroma acknowledges as much in his allegations of ineffective assistance of counsel in Issue V.
10 summary judgment on this issue, and the court grants summary
judgment on the issue of prosecutorial misconduct.
D. Admissibility of Evidence Seized from Jaroma's Car
Jaroma alleges that his arrest under New Hampshire's
loitering statute, RSA § 644:6, was invalid and that the evidence
discovered in the subseguent search of his car should have been
suppressed because the statute is unconstitutionally vague and
overbroad and violates the right to travel. The state moves for
summary judgment on this issue, relying entirely on the analysis
of the issue in the state's brief to the New Hampshire Supreme
Court on Jaroma's direct appeal and on the supreme court's
decision. In its brief for the appeal, the state primarily
addressed the constitutionality of the statute under state law,
and also argued that the court should adopt a good-faith
exception to the exclusionary rule that would protect the police
conduct even if the statute were deemed invalid. The supreme
court addressed the issue only under state law "[b]ecause the
federal law offers no greater protections to be free from
unreasonable searches and seizures," and held that it did not
need not to address the constitutionality of the statute because
the officer acted in good-faith reliance on the validity of the
statute and that his conduct did not violate the New Hampshire
11 Constitution. Jaroma, 137 N.H. at 566, 568-69; see also State v.
Canelo, 653 A.2d 1097, 1111 (N.H. 1995) (dissenting opinion).
Thus, the supreme court's analysis does not support the state's
motion for summary judgment in a federal habeas proceeding.
In Michigan v. DeFillippo, the United States Supreme Court
held that an arrest based on probable cause and made in good-
faith reliance on the validity of a "stop and identify" ordinance
was not rendered invalid, reguiring suppression of evidence from
a search incident to the arrest, when the ordinance was sub-
seguently declared unconstitutional. 443 U.S. 31, 40 (1979).
Thus, federal law recognizes an exception to the exclusionary
rule when an arrest is based on probable cause under a
presumptively valid law. Id. at 38-40. Determination of
probable cause is based on what a reasonably prudent and cautious
person would believe under the circumstances. Id. at 37, 38.8
The New Hampshire loitering statute is not "so grossly and
8Jaroma contends that he was arrested as a pretext to allow the police to manufacture evidence in order to charge him with another crime. However, a stop or arrest, alleged to be merely pretextual, does not violate the Fourth Amendment "as long as a reasonable officer in the same circumstances could have stopped the car for the suspected . . . violation." United States v. Whren, 53 F.3d 371, 375 (D.C. Cir. 1995) (discussing related rules in other circuits), petition for cert, filed (Aug. 31, 1995); accord United States v. Willis, 61 F.3d 526, 530 (7th Cir. 1995). Thus, the evaluation of the justification for an allegedly pretextual arrest is an objective analysis that is not dependent on the subjective state of mind of the arresting officer.
12 flagrantly unconstitutional that any person of reasonable
prudence would be bound to see its flaws," id. at 38, and had not
been declared unconstitutional at the time of the arrest. Thus,
the statute was presumptively valid. Jaroma does not contest the
existence of probable cause to arrest him under the loitering
statute but argues that the arrest lacked probable cause only
because of the unconstitutionality of the statute. Therefore,
even if the New Hampshire loitering statute were declared
unconstitutional, Jaroma's arrest was based on probable cause
that he had violated the statute and would be valid under the
good-faith exception announced in DeFillippo. Summary judgment
is granted as to this issue.9
E. Voir Dire
Jaroma contends that the trial court impaired his right to
due process and a fair trial by refusing to give two of his three
reguested voir dire guestions. Again, the state relies entirely
on its brief on appeal, which presented only state law, and the
9Alternatively, the court could grant summary judgment because Jaroma litigated this issue thoroughly in state court and "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone v. Powell, 428 U.S. 465, 494-95 (1976) .
13 supreme court's decision, which considered the issue only under
state law. Because the state has provided no analysis of the
voir dire issue under federal law, the court declines to consider
its argument.
F. Selection of the Jury Foreperson
Jaroma also challenges as a Sixth Amendment violation the
trial court's non-random selection of the jury foreperson and its
exemption of that person from being designated an alternate. He
argues that the selection process denied him a fair trial in
violation of the Sixth Amendment by creating a "super juror"
designated by the court who could not be exempted from service as
an alternate. Jaroma does not challenge the selection of the
jury panel as a whole from which the foreperson was designated.
Absent circumstances showing bias or imbuing the foreperson
with extraordinary authority, appointment of the jury foreperson
by the judge before designating alternates does not violate
either due process or the defendant's right to a fair trial. See
Hobby v. United States, 468 U.S. 339, 347 (1984) (holding that as
long as grand jury, as a whole, was properly constituted,
selection of one member as foreperson does not taint the
process); United States v. Cannon, 903 F.2d 849, 857 (1st Cir.)
("no valid reason to prohibit a trial judge from appointing the
14 foreperson" absent evidence in the record of prejudice), cert.
denied, 498 U.S. 1014 (1990); United States v. Machor, 879 F.2d
945, 956 (1st Cir. 1989), cert, denied, 493 U.S. 1094, and cert.
denied sub nom. Brito-Meiia v. United States, 493 U.S. 1081
(1990). Because Jaroma has not carried his burden of adducing
evidence of a constitutional violation caused by the court's
selection of the jury foreperson, summary judgment in favor of
the state is appropriate on this issue.
Conclusion
The state's motion for summary judgment (document no. 26) is
granted as to the petitioner's claims based on (1) the failure of
superior court to apply the doctrine of collateral estoppel at
the suppression hearing; (2) prosecutorial misconduct; (3) the
inadmissibility of evidence seized during the search of Jaroma's
automobile; and (4) the court's selection of jury foreperson.
The state shall have until December 1, 1995, to file a
supplemental memorandum of law, based on federal law, in support
of its motion for summary judgment on the issues of ineffective
15 assistance of counsel and improper voir dire. The petitioner
shall have until December 22, 1995, to file a reply.
SO ORDERED.
Joseph A. DiClerico, Jr. Chief Judge November 14, 1995
cc: A1 Jaroma, pro se John C. Kissinger, Esguire