Krueger v . Warden CV-02-294-M 12/17/02 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Kyle Krueger, Petitioner
v. Civil N o . 02-294-M Opinion N o . 2002 DNH 213 Jane Coplan, Warden, Respondent
O R D E R
Kyle Krueger seeks habeas corpus relief under the provisions
of 28 U.S.C. § 2254, arguing that the State of New Hampshire
subjected him to double jeopardy, in violation of his rights
under the Fifth and Fourteenth Amendments to the United States
Constitution, when it charged and convicted him of ninety
discrete criminal offenses arising from a single and continuous
course of sexual misconduct with a minor child. During a twenty-
five minute period, petitioner repeatedly, and mostly
successfully, coaxed a two-year-old child to perform oral sex
upon him. See State v . Krueger, 146 N.H. 541 (2001). The
activity was videotaped, so it was feasible for prosecutors to
break down petitioner’s behavior into discrete criminal offenses, each offense based upon different, though temporally close,
conduct.
Respondent moves to dismiss the petition for failure to
exhaust remedies available to petitioner in New Hampshire’s
courts. Respondent is correct – a habeas petitioner in state
custody generally may not advance his or her federal
constitutional claims in a federal court unless and until the
substance of those claims has been fairly presented to the
state’s highest court. That “exhaustion” requirement, codified
at 28 U.S.C. §§ 2254(b) and ( c ) , is designed to provide state
courts with an initial “opportunity to pass upon and correct
alleged violations of [their] prisoners’ federal rights.” Picard
v . Connor, 404 U.S. 2 7 0 , 275 (1971)(citation and internal
quotation marks omitted).
To establish exhaustion, petitioner must show that “he
tendered his federal claim [to the state’s highest court] in such
a way as to make it probable that a reasonable jurist would have
been alerted to the existence of the federal question.” Casella
v . Clemons, 207 F. 3d 1 8 , 20 (1st Cir. 2000)(citations and
2 internal quotation marks omitted). Respondent says petitioner
has not done so in this case.
Even reading petitioner’s brief to the New Hampshire Supreme
Court as favorably as possible, one cannot find a hint of a
federal claim. Petitioner did make a vague and, as the
Respondent characterizes i t , a “passing” reference to the Fifth
and Fourteenth Amendments, as well as the concept of “double
jeopardy,” in his Notice of Appeal. But, he never followed up by
identifying or briefing a federal double jeopardy claim. Rather,
petitioner’s brief merely argued that charging so many discrete
offenses was, under the circumstances, “an unjust application of
the [state criminal] statute.” Krueger, 146 N.H. at 542; see
also Appendix to Memorandum of Law in Support of Respondent’s
Motion for Summary Judgment, Exhibit A (Document N o . 7 ) .
A petitioner can easily satisfy the exhaustion requirement.
There are no hard and inflexible rules; it is sufficient if the
issue is presented “face-up and squarely,” and in such a fashion
that “a reasonable jurist would have recognized the federal
constitutional dimensions of the petitioner’s claim.” Barresi v .
3 Maloney, 296 F.3d 4 8 , 52 (1st Cir. 2002). Here, however,
petitioner seems to have made no attempt to alert the state
justices of a federal dimension to his direct appeal. He did not
cite specific provisions of the United States Constitution in his
brief; did not specifically raise a double jeopardy issue, in
those terms; never suggested a federal issue of any other kind;
did not rely upon federal precedents; did not claim any
particular right guaranteed to him by the Constitution; and,
finally, the brief filed by petitioner does not leave the reader
with any sense that his claim regarding “multiplicity” was in any
way related to federal law. See Nadworny v . Fair, 872 F.2d 1093,
1099 (1st Cir. 1989).
Under these circumstances, it is difficult to argue, much
less conclude, that petitioner presented his federal double
jeopardy claim “face-up and squarely” to the New Hampshire
Supreme Court, or that a reasonable jurist would have recognized
the federal constitutional dimension of his claim. See Adelson
v . DiPaola, 131 F.3d 259 (1st Cir. 1997).
4 Although it cannot be said that petitioner fully exhausted
his federal claim, it is nevertheless apparent that his claim is
without merit and that exhausting available state remedies would
be entirely futile. This is particularly so because, although
petitioner did not raise or brief a federal double jeopardy
claim, and the New Hampshire Supreme Court did not consider or
resolve a federal claim, petitioner’s state double jeopardy claim
(such as it was) was legally indistinguishable from the parallel
federal claim he seeks to advance now. That i s , the result of
his state appeal would have been no different had the claim been
analyzed under federal, rather than state, law (state double
jeopardy law could not be less protective than the federal law of
double jeopardy).
Essentially, then, requiring petitioner to exhaust his
double jeopardy claim would be plainly futile, both because the
state supreme court found no state double jeopardy violation
(which effectively precluded its finding a federal violation),
and because the federal claim is without merit. The
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
anticipated situations such as that presented here, providing
5 that “[a]n application for a writ of habeas corpus may be denied
on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State.” 28
U.S.C. § 2254(b)(2). Although the AEDPA does not describe the
standard applicable when determining whether an unexhausted
petition should be dismissed on the merits (as opposed to
dismissing it without prejudice to permit complete exhaustion) it
seems reasonably clear that dismissal on the merits is
appropriate where exhaustion “plainly would be futile,” and the
federal claim is without merit. See Adelson, 131 F.3d at 263-64;
Colon v . Johnson, 19 F.Supp. 2d 1 1 2 , 120 (S.D.N.Y. 1998).
The Double Jeopardy Clause provides that no person shall “be
subject for the same offence to be twice put in jeopardy of life
or limb . . . .” U.S. Const. Amend. V . Three types of
protection are afforded: “It protects against a second
prosecution for the same offense after acquittal. It protects
against a second prosecution for the same offense after
conviction. And it protects against multiple punishments for the
same offense.” North Carolina v . Pearce, 395 U.S. 7 1 1 , 717
6 (1969) (footnotes omitted), overruled in part on other grounds,
Alabama v . Smith, 490 U.S. 794 (1989).
Free access — add to your briefcase to read the full text and ask questions with AI
Krueger v . Warden CV-02-294-M 12/17/02 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Kyle Krueger, Petitioner
v. Civil N o . 02-294-M Opinion N o . 2002 DNH 213 Jane Coplan, Warden, Respondent
O R D E R
Kyle Krueger seeks habeas corpus relief under the provisions
of 28 U.S.C. § 2254, arguing that the State of New Hampshire
subjected him to double jeopardy, in violation of his rights
under the Fifth and Fourteenth Amendments to the United States
Constitution, when it charged and convicted him of ninety
discrete criminal offenses arising from a single and continuous
course of sexual misconduct with a minor child. During a twenty-
five minute period, petitioner repeatedly, and mostly
successfully, coaxed a two-year-old child to perform oral sex
upon him. See State v . Krueger, 146 N.H. 541 (2001). The
activity was videotaped, so it was feasible for prosecutors to
break down petitioner’s behavior into discrete criminal offenses, each offense based upon different, though temporally close,
conduct.
Respondent moves to dismiss the petition for failure to
exhaust remedies available to petitioner in New Hampshire’s
courts. Respondent is correct – a habeas petitioner in state
custody generally may not advance his or her federal
constitutional claims in a federal court unless and until the
substance of those claims has been fairly presented to the
state’s highest court. That “exhaustion” requirement, codified
at 28 U.S.C. §§ 2254(b) and ( c ) , is designed to provide state
courts with an initial “opportunity to pass upon and correct
alleged violations of [their] prisoners’ federal rights.” Picard
v . Connor, 404 U.S. 2 7 0 , 275 (1971)(citation and internal
quotation marks omitted).
To establish exhaustion, petitioner must show that “he
tendered his federal claim [to the state’s highest court] in such
a way as to make it probable that a reasonable jurist would have
been alerted to the existence of the federal question.” Casella
v . Clemons, 207 F. 3d 1 8 , 20 (1st Cir. 2000)(citations and
2 internal quotation marks omitted). Respondent says petitioner
has not done so in this case.
Even reading petitioner’s brief to the New Hampshire Supreme
Court as favorably as possible, one cannot find a hint of a
federal claim. Petitioner did make a vague and, as the
Respondent characterizes i t , a “passing” reference to the Fifth
and Fourteenth Amendments, as well as the concept of “double
jeopardy,” in his Notice of Appeal. But, he never followed up by
identifying or briefing a federal double jeopardy claim. Rather,
petitioner’s brief merely argued that charging so many discrete
offenses was, under the circumstances, “an unjust application of
the [state criminal] statute.” Krueger, 146 N.H. at 542; see
also Appendix to Memorandum of Law in Support of Respondent’s
Motion for Summary Judgment, Exhibit A (Document N o . 7 ) .
A petitioner can easily satisfy the exhaustion requirement.
There are no hard and inflexible rules; it is sufficient if the
issue is presented “face-up and squarely,” and in such a fashion
that “a reasonable jurist would have recognized the federal
constitutional dimensions of the petitioner’s claim.” Barresi v .
3 Maloney, 296 F.3d 4 8 , 52 (1st Cir. 2002). Here, however,
petitioner seems to have made no attempt to alert the state
justices of a federal dimension to his direct appeal. He did not
cite specific provisions of the United States Constitution in his
brief; did not specifically raise a double jeopardy issue, in
those terms; never suggested a federal issue of any other kind;
did not rely upon federal precedents; did not claim any
particular right guaranteed to him by the Constitution; and,
finally, the brief filed by petitioner does not leave the reader
with any sense that his claim regarding “multiplicity” was in any
way related to federal law. See Nadworny v . Fair, 872 F.2d 1093,
1099 (1st Cir. 1989).
Under these circumstances, it is difficult to argue, much
less conclude, that petitioner presented his federal double
jeopardy claim “face-up and squarely” to the New Hampshire
Supreme Court, or that a reasonable jurist would have recognized
the federal constitutional dimension of his claim. See Adelson
v . DiPaola, 131 F.3d 259 (1st Cir. 1997).
4 Although it cannot be said that petitioner fully exhausted
his federal claim, it is nevertheless apparent that his claim is
without merit and that exhausting available state remedies would
be entirely futile. This is particularly so because, although
petitioner did not raise or brief a federal double jeopardy
claim, and the New Hampshire Supreme Court did not consider or
resolve a federal claim, petitioner’s state double jeopardy claim
(such as it was) was legally indistinguishable from the parallel
federal claim he seeks to advance now. That i s , the result of
his state appeal would have been no different had the claim been
analyzed under federal, rather than state, law (state double
jeopardy law could not be less protective than the federal law of
double jeopardy).
Essentially, then, requiring petitioner to exhaust his
double jeopardy claim would be plainly futile, both because the
state supreme court found no state double jeopardy violation
(which effectively precluded its finding a federal violation),
and because the federal claim is without merit. The
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
anticipated situations such as that presented here, providing
5 that “[a]n application for a writ of habeas corpus may be denied
on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State.” 28
U.S.C. § 2254(b)(2). Although the AEDPA does not describe the
standard applicable when determining whether an unexhausted
petition should be dismissed on the merits (as opposed to
dismissing it without prejudice to permit complete exhaustion) it
seems reasonably clear that dismissal on the merits is
appropriate where exhaustion “plainly would be futile,” and the
federal claim is without merit. See Adelson, 131 F.3d at 263-64;
Colon v . Johnson, 19 F.Supp. 2d 1 1 2 , 120 (S.D.N.Y. 1998).
The Double Jeopardy Clause provides that no person shall “be
subject for the same offence to be twice put in jeopardy of life
or limb . . . .” U.S. Const. Amend. V . Three types of
protection are afforded: “It protects against a second
prosecution for the same offense after acquittal. It protects
against a second prosecution for the same offense after
conviction. And it protects against multiple punishments for the
same offense.” North Carolina v . Pearce, 395 U.S. 7 1 1 , 717
6 (1969) (footnotes omitted), overruled in part on other grounds,
Alabama v . Smith, 490 U.S. 794 (1989).
Petitioner claims here, as he did in the state proceedings,
that by dividing his conduct into discrete acts and then charging
numerous separate offenses, the prosecution subjected him to
“multiplicious” indictments, which put him in jeopardy of
multiple punishments for the same offense. That i s , petitioner
reiterates in every material respect what he argued before the
New Hampshire Supreme Court, although here he puts the argument
in federal dress. “An indictment is multiplicious when a single
offense is charged in more than one count, and the Double
Jeopardy Clause of the Fifth Amendment prohibits multiple
punishment for a single offense. However, it is the role of [the
legislature] to define crimes and to determine the appropriate
punishment for these offenses. If [the legislature] defines the
crimes charged as separate and distinct offenses, an accused may
be charged with these offenses separately.” United States v .
Serino, 835 F.2d 9 2 4 , 930 (1st Cir. 1987)(citations and internal
punctuation omitted).
7 Here, petitioner describes neither a multiple prosecution
nor a multiple punishments case in his habeas petition. While
the state prosecutors’ exercise of charging discretion has been
properly questioned in this case,1 still, each indictment rested
upon separate and distinct factual predicates. Material facts
necessary to prove one offense charged were different from the
material facts necessary to prove each other charged offense.
Under New Hampshire law, each separate act or attempted act
of fellatio constituted a distinct offense, and could not be
consolidated into one count alleging a general course of conduct
involving several incidents of intentional touching. See State
v . Krueger, 146 N.H. at 543; State v . Patch, 135 N.H. 127
(1991)(error to consolidate a number of separate felonious sexual
assault offenses in one count of an indictment under a general
1 The New Hampshire Supreme Court was decidedly critical of the prosecution’s decision to charge ninety separate offenses arising from the repugnant twenty-five minute episode depicted on the videotape. State v . Krueger, 146 N.H. 5 4 1 , 543-44 (2001)(“We do believe, however, that it is important to exercise discretion with more circumspection when charging crimes under these circumstances. . . [W]e place a great deal of responsibility upon prosecutors to exercise discretion without vengeance when charging a particular defendant. Unfortunately, the manner in which the indictments were charged in this case raises the specter of prosecutorial over-zealousness.”).
8 plea of a course of conduct involving several incidents of
intentional touching); State v . Paulsen, 143 N.H. 447 (1999).
The prosecution, technically speaking, was correct in separately
charging each criminal act.
S o , each indictment charged a distinct criminal act as
defined by state law2 (i.e., eighty counts of aggravated
felonious sexual assault, seven counts of attempted aggravated
felonious sexual assault, two counts of felonious sexual assault,
and one count of simple assault). Therefore, the indictments
were not multiplicious and petitioner was not subjected to the
risk of multiple punishments for the same offense. See
Blockburger v . United States, 284 U.S. 299 (1932). Of course,
any doubt at all in that regard was completely removed when the
state trial judge consolidated all of the convictions for
2 See e.g., State v . Patch, 135 N.H. at 128 (“An indictment is duplicitous when it charges two or more offenses in one count. Each act of sexual contact . . . constitutes a separate offense of felonious sexual assault when such contact is with a person less than thirteen years of age. . . . By alleging a ‘course of conduct involving several incidents of intentionally touching,’ the indictment at issue encompassed more than one offense.”)(citations omitted).
9 sentencing and imposed a sentence within the range applicable to
one offense of conviction. See Krueger, 146 N.H. at 544.
Conclusion
While discretion, wisely exercised, should have led to a
different charging practice than actually occurred here, given
the incontrovertible video tape evidence and the discrete
criminal acts revealed, no double jeopardy issue arose from the
charges as brought. The collection of indictments were all tried
together in one proceeding. Petitioner was subjected to only one
trial and not to successive prosecutions arising from the same
course of conduct. He was not tried later for any offenses of
which he had previously been either convicted or acquitted. And,
because the state trial judge refused to follow the prosecution’s
lead, and, instead, consolidated all of the convictions for purposes of sentencing, petitioner was not subjected to multiple
punishment for what was essentially the same criminal conduct.
Thus, petitioner was punished only once, although convicted of 90
discrete offenses.
10 Because requiring petitioner to exhaust available state
remedies would be futile, and because the petition is without
substantive merit, it is dismissed.
SO ORDERED.
Steven J. McAuliffe United States District Judge December 1 7 , 2002
cc: Kyle Krueger Jonathan v . Gallo, Esq.