Leonard Montour v . Warden 11-CV-369-SM 3/30/12 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Leonard Montour, Petitioner
v. Case N o . 11-cv-369-SM Opinion N o . 2012 DNH 30 Larry Blaisdell, Warden, Northern N.H. Correctional Facility, Respondent
O R D E R
In November of 2008, Leonard Montour was convicted of two
counts of Aggravated Felonious Sexual Assault, four counts of
Felonious Sexual Assault, and two counts of Misdemeanor Sexual
Assault on his former babysitter. He was sentenced to serve 15
to 30 years in prison and his convictions were affirmed on appeal
to the New Hampshire Supreme Court. State v . Montour, Case N o .
2009-0313 (N.H. Sept. 1 4 , 2010) (document n o . 1 - 5 ) .
Montour now seeks federal habeas corpus relief, asserting
that he was deprived of his Fourteenth Amendment right to due
process and his Sixth Amendment right to confront his accuser.
See generally 28 U.S.C. § 2254. The State moves for summary
judgment. For the reasons discussed below, the State’s motion is
granted. Standard of Review
As Montour acknowledges in his memorandum, and as this court
has previously noted, the burden on a petitioner seeking federal
habeas corpus relief is substantial. Since passage of the Anti-
Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28
U.S.C. § 2254(d), the power to grant federal habeas relief to a
state prisoner with respect to claims adjudicated on the merits
in state court has been significantly limited. A federal court
may not disturb a state conviction unless the state court’s
adjudication “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. §
2254(d)(2). And, a habeas petitioner seeking relief under that
provision faces a substantial burden insofar as “a determination
of a factual issue made by a State court shall be presumed to be
correct.” 28 U.S.C. § 2254(e)(1).
Alternatively, habeas relief may be granted if the state
court’s resolution of the constitutional issues before it
“resulted in a decision that was contrary t o , or involved an
unreasonable application o f , clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1). See generally Williams v . Taylor, 529 U.S. 3 6 2 ,
412-13 (2000). To prevail on such a claim, the habeas petitioner
2 must demonstrate that “the state court’s ruling on the claim
being presented in federal court was so lacking in justification
that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.”
Harrington v . Richter, 131 S . C t . 7 7 0 , 786-87 (2011).
Only as to federal claims that were presented to the state
court but neither adjudicated on the merits nor dismissed by
operation of a regularly-applied state procedural rule, may this
court apply the more petitioner-friendly de novo standard of
review. See, e.g., Clements v . Clarke, 592 F.3d 45 52 (1st Cir.
2010) (“In contrast, a state court decision that does not address
the federal claim on the merits falls beyond the ambit of AEDPA.
When presented with such unadjudicated claims, the habeas court
reviews them de novo.”) (citation omitted).
With those principles in mind, the court turns to Montour’s
petition and the State’s motion for summary judgment.
Background
Montour’s first trial ended in a mistrial, after the jury
declared it was deadlocked and unable to reach a verdict. Prior
to the retrial, Montour’s girlfriend, Jennifer Scott, reported to
Manchester police that the couple had received harassing phone
3 calls on Montour’s cellular telephone. She told police she
suspected the calls had been made by Montour’s victim. She also
reported that she had been awakened late at night by the sound of
a woman screaming outside, followed by tires screeching - an
event she believed was related to the harassing phone calls.
And, finally, M s . Scott told police she was concerned about a
photograph on the victim’s MySpace page that showed her holding a
firearm.
Manchester police investigated the incidents and interviewed
Montour’s victim. When police initially contacted her by
telephone, the victim denied making any calls to Montour’s cell
phone. Subsequently, however, she met with the investigating
officer, admitted she had placed the phone calls to Montour, but
said she couldn’t remember how many times she had called him.
She vehemently denied making any threats or acting with the
intent to harass him and told the investigating officer she would
be willing to “swear to this under oath and take a lie detector
test.” Incident/Investigation Report (document n o . 1-8) at 1 3 .
She said her phone was “on mute the whole time,” told the officer
she was afraid of Montour, and asked, “why would I threaten him?”
Id.
4 The victim explained that although she originally told
prosecutors she was not willing to go through the ordeal of a
second trial, she changed her mind and wanted to let Montour know
that “she wasn’t going to back down.” Id. She denied calling
him repeatedly, but suggested that her phone might have done so
without her knowledge - that i s , she reported that sometimes when
she put her phone away, it would redial the last outgoing number
that she had called. The investigating officer noted that her
son had the same phone and had experienced the same issue. In
her report, the officer observed that, “[t]his would explain the
back-to-back calls” that M s . Scott had reported. Id.
The investigating officer also asked the victim whether she
had a MySpace page and, if s o , whether she had posted any
photographs of her posing with firearms. The victim admitted
having a MySpace page but said she couldn’t remember any
photographs involving firearms. But, “[a]fter thinking about it
briefly, she stated there was a picture of her doing some target
shooting with a BB gun,” at her boyfriend’s home in Maine. Id.
at 4 . She showed the officer the photograph in question, told
the officer she had nothing to hide, and offered to allow the
officer to inspect her computer.
5 Meanwhile, Montour and his girlfriend were not terribly
cooperative with the investigation. See id. at 3 . Eventually,
the investigating officer told the victim’s parents that she “did
not foresee charges being brought against [the victim] in this
case due to lack of evidence and the fact that [the officer] had
some doubts about Jennifer Scott’s and Lenny Montour’s
credibility.” Id. at 4 .
Prior to his retrial, Montour filed a motion seeking copies
of the investigative report (because the police investigation was
still ongoing at the time, the contents of the investigative file
were not yet public). That motion was denied initially and,
after the trial court reviewed the report in camera, again on
reconsideration. Montour was eventually retried and convicted on
all eight counts. Subsequently, he obtained a copy of the report
and discovered that the victim had made the allegedly harassing
calls and, when questioned about those calls, she initially
denied making them.
Discussion
As construed by the Magistrate Judge, Montour’s petition for
habeas corpus relief raises two claims:
1. Montour suffered a violation of his right to due process under the Fourteenth Amendment when the trial judge, after conducting an in camera review,
6 denied Montour’s request for disclosure of police reports showing that the complaining witness had lied to the police.
2. Montour suffered a violation of his Sixth Amendment right to confrontation when the trial judge restricted his cross-examination of the complaining witness regarding a matter relating to her bias, motive to fabricate, and general credibility.
Report and Recommendation (document n o . 2 ) at 4 . The State
asserts that those claims are both unexhausted and procedurally
defaulted. Montour, on the other hand, says those claims were
fully and fairly presented to the New Hampshire Supreme Court and
neither was resolved against him on state procedural grounds.
And, because the state court failed to address (or even allude
to) his federal constitutional claims, Montour says he is
entitled to de novo review of them in this forum.
Even giving Montour the benefit of the doubt, assuming he is
correct, and subjecting his constitutional claims to de novo
review, he is not entitled to the relief he seeks.
I. Petitioner’s Due Process Claim.
Montour asserts that the State’s failure “to disclose the
police report to [him] which contained evidence that the victim
had lied to the police during a subsequent investigation”
violated his constitutionally protected right to due process.
7 Petitioner’s memorandum at 1 7 . More specifically, Montour says
he could have used evidence that the victim lied to police to
impeach her credibility.
It is well-established that the suppression “of evidence
favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment.”
Brady v . Maryland, 373 U.S. 8 3 , 87 (1963). See also Giglio v .
United States, 405 U.S. 1 5 0 , 154 (1972) (“When the reliability of
a given witness may well be determinative of guilt or innocence,
nondisclosure of evidence affecting credibility falls within this
general rule.”) (citation and internal punctuation omitted).
But, evidence is material “only if there is a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different. A
‘reasonable probability’ is a probability sufficient to undermine
confidence in the outcome.” United States v . Bagley, 473 U.S.
667, 682 (1985). See also Kyles v . Whitley, 514 U.S. 419, 434
(1995); Banks v . Dretke, 540 U.S. 6 6 8 , 699 (2004).
When assessing the “materiality” of evidence, the court must
consider not only the potentially expulpatory or impeaching
nature of that evidence, but also the effect such evidence likely
would have had on the jury, in light of all the evidence
8 presented at trial. In other words, “the Constitution is not
violated every time the government fails or chooses not to
disclose evidence that might prove helpful to the defense.”
Kyles, 514 U.S. at 436-37. Both the nature of the evidence in
question and the context in which defendant might have employed
it are relevant. See, e.g., Bagley, 473 U.S. at 675 n.7 (“[A]
rule that the prosecutor commits error by any failure to disclose
evidence favorable to the accused, no matter how insignificant,
would impose an impossible burden on the prosecutor and would
undermine the interest in the finality of judgments.”).
Montour argues that, had the jury known that the victim
initially denied making any phone calls to him, and had it been
aware of her willingness to “lie” to police officers, “the jury
would have [had] a different impression of her and her bias and
infatuation towards him and [such evidence would have]
demonstrate[d] her motive to fabricate a relationship.”
Petitioner’s memorandum (document n o . 11) at 1 6 . The court
disagrees. Given all the evidence introduced at trial, and in
light of the timing of the victim’s lie to police, the potential
impeachment value of the police report in question was, at best,
minimal. Viewed in context, its exclusion from Montour’s trial -
though arguably improper - does not undermine confidence in the
jury’s verdict.
9 First, the timing of the allegedly harassing phone calls and
the victim’s lie to the police is important. As the trial court
suggested in its order denying Montour’s motion for discovery
(document n o . 1 - 6 ) , because those events occurred after Montour’s
first trial and shortly before his re-trial, they had minimal
potential probative value. Had the allegedly harassing phone
calls and the lie to police been made before charges were filed
against Montour, or even before his first trial, the police
report would have had fairly significant impeachment value. It
could have plausibly suggested to the jury that the victim was
infatuated with Montour, angry that he rejected her advances and,
conceivably, had a motive to fabricate the charges against him
out of spite.1
1 Parenthetically, the court notes that Montour never advanced such a theory in his defense. Montour himself offered no explanation for why the victim might have lied about the events leading to his convictions. In fact, when asked why she might have fabricated those events, Montour testified “I just don’t know why. I don’t know why.” Trial transcript vol. 3 , at 519-20. Similarly, Montour’s counsel never advanced the infatuation/rebuffed advances/spite theory for why the victim might have falsely accused Montour. Rather, in his closing argument, counsel offered two different theories. First, he posited that the victim was upset at Montour’s girlfriend for refusing to allow her to babysit Montour’s children any longer. S o , she fabricated stories of Montour having assaulted her as an indirect way to get back at Montour’s girlfriend. Alternatively, counsel argued that the victim fabricated the incidents with Montour to explain why she began suffering social and emotional problems. Trial transcript vol. 4 , at 624-25.
10 But, the events that were the subject of the investigative
report occurred well after charges had been filed against Montour
and, in fact, after Montour’s first trial ended in a hung jury -
thus giving rise to an equally plausible (if not more plausible)
inference for the jury to draw: the victim was, as she told the
police, angry with Montour for having raped her and angry that
she would have to endure a second trial, but sufficiently
frightened of him to remain silent when she placed the calls to
Montour’s phone (or, as she told police, to keep her phone on
“mute”).
Even more to the point, Montour’s trial counsel effectively
cross-examined the victim at length about her credibility and
potential bias, pointing out both factual omissions and
contradictions in her trial testimony on several occasions. See,
e.g., Petitioner’s appellate brief to the New Hampshire Supreme
Court (document n o . 1-3) at 4-17 (summarizing various
discrepancies between the victim’s testimony and her earlier
reports to the police with regard t o , for example, the “initial
incident in Litchfield,” the “shower incident,” the “bedroom
incident,” the “sunbathing incident,” the “Victoria’s Secret
incident,” the “basement incident,” and the “Harley Davidson
truck incident.”). Notwithstanding those discrepancies, the jury
obviously found the substance of the victim’s testimony credible
11 beyond a reasonable doubt. That she initially told police “that
she didn’t call anyone,” Incident/Investigation Report at 1 3 , was
of only slight additional impeachment value - particularly when
the report makes clear that, shortly after her initial denial,
the victim admitted to making the calls, explained (in a manner
the investigating officer found credible) both why she made them
and the reason for the “back-to-back” calls, gave the officer
access to her phone, and offered to allow the officer to search
her computer.
As noted earlier, allowing discovery and examination might
have been the preferable course, but when viewed in the context
of all the evidence introduced at trial - particularly similar
evidence used to undermine the victim’s credibility - it is clear
that the police report was not “material.” In other words, there
is not a reasonable probability (i.e., one sufficient to
undermine confidence in the outcome) that, had the report been
disclosed to the defense and examination allowed, the result of
Montour’s criminal trial would have been different. Accordingly,
the trial court’s decision to deny Montour access to that report
did not violate his federal constitutional right to due process.
12 II. Petitioner’s Confrontation Clause Claim.
In a related claim, Montour asserts that the “trial judge
violated the Confrontation Clause of the Sixth Amendment to the
United States Constitution by preventing [him] from cross-
examining the victim about the harassing telephone calls she made
to him and his fiancee.” Petitioner’s memorandum at 1 3 .
According to Montour, the “entire case against [him] was based on
the credibility of the victim and the jury would have [had] a
different impression of her if they knew that subsequent to the
trial, she made harassing phone calls and initially denied it to
the police.” Id. At 14-15.
The Supreme Court has held that a criminal defendant “states
a violation of the Confrontation Clause by showing that he was
prohibited from engaging in otherwise appropriate cross-
examination designed to show a prototypical form of bias on the
part of the witness, and thereby to expose to the jury the facts
from which jurors could appropriately draw inferences relating to
the reliability of the witness.” Delaware v . Van Arsdall, 475
U.S. 673, 680 (1986) (citation and internal punctuation omitted).
The Court cautioned, however, that:
It does not follow, of course, that the Confrontation Clause of the Sixth Amendment prevents a trial judge from imposing any limits on defense counsel’s inquiry into the potential bias of a prosecution witness. On the contrary, trial judges retain wide latitude insofar
13 as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant. And as we observed earlier this Term, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross- examination that is effective in whatever way, and to whatever extent, the defense might wish.
Id. at 679 (citation and internal punctuation omitted) (emphasis
in original). Interpreting the Supreme Court’s holding in Van
Arsdall, the court of appeals for this circuit has stated:
The first question to be asked under the Van Arsdall test is whether the limitation prejudiced the examination of that particular witness. In other words, absent the limitation, would the jury have received a significantly different impression of the witness’s credibility? The second element of the Van Arsdall test is whether the error was harmless beyond a reasonable doubt; if s o , reversal is not warranted.
DiBenedetto v . Hall, 272 F.3d 1 , 10 (1st Cir. 2001) (citations
and internal punctuation omitted).
Having reviewed the record, the court cannot conclude that
Montour’s cross-examination of the victim was prejudiced by his
inability to confront her with the police report. First, viewed
in isolation, the impeachment value of that report was, at best,
minimal. When the investigating officer initially contacted the
victim by telephone and asked whether she had called Montour’s
cell phone, the victim said “she didn’t call anyone.”
14 Subsequently, however, she and her mother went to the police
station and met with the investigating officer. The victim
admitted she had called Montour on her cell phone, and she
explained why she had done s o . While counsel might have used the
victim’s initial “lie” to police officers to undermine her
credibility, such a line of inquiry would have been of only
minimal practical value - particularly given the fact that,
shortly after that initial denial, the victim voluntarily met
with the investigating officer, explained her conduct, and
offered the officer access to both her phone and her computer.
Second, when viewed in the context of the evidence actually
presented at trial - particularly counsel’s lengthy and probing
cross-examination of the victim - it is apparent that the
inability to access the investigative report did not seriously
prejudice Montour’s examination of her. In other words, the jury
would not have had a “significantly different impression” of the
victim if Montour had been allowed to cross-examine her about the
fleeting “lie” referenced in the police report. See DiBenedetto,
272 F.3d at 1 0 . Montour had a full and fair opportunity to
cross-examine the victim - something his counsel did quite
effectively - and to develop his argument that the victim lied
about the sexual assaults: (a) to explain why she was having
various social and emotional problems in her life; and (b) to get
15 back at Montour’s girlfriend, whom she allegedly disliked. See
Defendant’s closing argument, trial transcript vol. 5 , at 624-26.
See generally Bui v . DiPaolo, 170 F.3d 2 3 2 , 242 (1st Cir. 1999)
(“[T]o the extent that the petitioner is suggesting that a
criminal defendant has license to cross-question a prosecution
witness concerning every conceivable theory of bias, regardless
of the prevailing circumstances, he is plainly wrong. The
threshold requirement imposed by the Confrontation Clause is
satisfied as long as the defendant is given a fair chance to
inquire into a witness’s bias.”).
Conclusion
The trial judge probably should have given Montour access to
the investigative report and permitted him to cross-examine the
victim about the allegedly harassing phone calls. Nevertheless,
it is plain that the trial court’s decision to withhold that
report did not violate Montour’s constitutionally protected
rights. For the foregoing reasons, the respondent’s motion for
summary judgment (document n o . 6 ) is granted. The petition for a
writ of habeas corpus (document n o . 1 ) is denied and the Clerk of
Court shall close the case.
Because Montour has not “made a substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), the
16 court declines to issue a certificate of appealability.
Petitioner may, however, seek such a certificate from the court
of appeals under Federal Rule of Appellate Procedure 22(b). See
Rule 1 1 , Federal Rules Governing Section 2254 Cases (2010); 28
U.S.C. § 2253(c).
SO ORDERED.
Steven J./McAuliffe onited States District Judge
March 3 0 , 2012
cc: Lisa R. Rick, Esq. Andrew R. Schulman, Esq. Elizabeth C . Woodcock, Esq.