Morehouse v. NH State Prison CV-98-304-M 04/09/99 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Patrick Morehouse, Petitioner
v. Civil No. 98-304-M
Michael J. Cunningham, Warden New Hampshire State Prison Respondent
O R D E R
Patrick Morehouse's pro se petition for writ of habeas
corpus (28 U.S.C. § 2254) argues that his 1981 conviction for
attempted murder violated the double jeopardy provision of the
federal constitution, as well as his rights to due process, egual
protection and effective assistance of counsel. Petitioner has
filed a motion for summary judgment and respondent has filed
motions to dismiss and for summary judgment.
On March 15, 1979, Petitioner was convicted of attempted
murder after a jury trial in Hillsborough County Superior Court,
and was sentenced, on March 19, 1979, to an extended term of 10
to 30 years imprisonment. Petitioner appealed his conviction to
the New Hampshire Supreme Court, arguing that (1) the state
failed to present sufficient evidence that petitioner intended
the death of his victim; (2) that he was not given notice that he
could receive an enhanced sentence for a crime involving
exceptional cruelty or depravity; (3) that the facts on which his
enhanced sentence was based were not found by a jury beyond a
reasonable doubt; and (4) that the court failed to make specific factual findings supporting an enhanced sentence. The New
Hampshire Supreme Court rejected each of petitioner's claims but,
on rehearing, reversed petitioner's conviction on a different
ground — an erroneous reasonable doubt instruction. See State v.
Morehouse, 120 N.H. 738 (1980).
Petitioner was retried and was again convicted and sentenced
to an enhanced 10 to 30 year prison term. Petitioner appealed
his second conviction to the New Hampshire Supreme Court, arguing
(1) that the state had not presented sufficient evidence of
intent to kill and (2) that petitioner was entitled to both
notice of the possibility that an enhanced sentence could be
imposed, and a jury determination beyond a reasonable doubt of
facts supporting an enhanced sentence.
The New Hampshire Supreme Court ordered petitioner's counsel
to "file a memorandum explaining why the issues in this case are
different from those considered by the court in [State v.
Morehouse, 120 N.H. 738]." (Appendix G to Respondent's Answer
(hereinafter cited as "App. __")) Petitioner responded that "the
issues which would be briefed and argued in the [second] appeal
would be identical to those argued and briefed in [the previous
appeal]." (App. H.) The New Hampshire Supreme Court then
summarily affirmed petitioner's second conviction, since
resolution of the issues presented were subject to controlling
precedent — Morehouse's own earlier case.
On March 8, 1996, Petitioner filed a petition for writ of
habeas corpus in this court. Civil No. 96-138-B, that, after two
2 amendments, was dismissed without prejudice as a mixed petition.
See Rose v. Lundv, 455 U.S. 509, 522 (1982). Petitioner's
request for a certificate of appealability from the First Circuit
Court of Appeals, which the court treated as a request for a
certificate of probable cause, was denied on December 17, 1997.
Petitioner then filed, on December 29, 1997, a petition for
writ of certiorari to the New Hampshire Supreme Court "to inspect
for irreqularities the procedures and methods th[e] Court
utilized when it affirmed the petitioner's direct appeal" of his
second conviction. (App. P.) The petitioner presented the
followinq issues to the New Hampshire Supreme Court: (1) whether
he was deprived of effective assistance of counsel when the court
summarily affirmed his conviction without orderinq a transcript
of the retrial; (2) whether he was deprived of due process, equal
protection and effective assistance of counsel when the court
directed his counsel to file a memorandum explaininq how the
issues raised differed from those raised in his prior appeal and
to indicate which witness testimony need not be transcribed; (3)
whether he was deprived of due process when he was not notified
that he could receive an extended sentence; (4) whether he was
deprived of due process and equal protection when the court
summarily affirmed his conviction three days before the New
Hampshire leqislature amended the extended sentencinq statute to
require pre-trial notice; and (5) whether the superior court on
retrial made factual findinqs sufficient to support a
determination of exceptional cruelty or depravity that were also
3 different enough from the facts used to prove the underlying
crime to not subject petitioner to double jeopardy. On April 2,
1998, the Supreme Court denied Morehouse's petition for writ of
certiorari.
Petitioner then filed a second habeas petition in this
court, on May 11, 1998. He advanced the following grounds for
his petition: (1) The New Hampshire Supreme Court deprived him of
due process, egual protection, and effective assistance of
counsel when, on August 25, 1981, it summarily affirmed his
conviction without first obtaining transcripts of his retrial;
(2) the state did not present sufficient evidence to prove
petitioner's guilt beyond a reasonable doubt; (3) imposition of
an enhanced sentence subjected him to double jeopardy, and
failure to give him notice that an enhanced sentence could be
imposed violated his rights under the Fifth, Sixth, Ninth, and
Fourteenth Amendments of the United States Constitution; and (4)
he was deprived of effective assistance of counsel on appeal.
Petitioner also attempted to incorporate, in support of his
petition, "'EACH AND EVERY FACTUAL GROUND' as appealed to the New
Hampshire Supreme Court in State v. Morehouse, 120 N.H. 738
(1980)." (Emphasis omitted.)
Discussion
Respondent moves to dismiss Morehouse's petition under Rule
9(a) of the Rules Governing § 2254 cases, which provides:
A petition may be dismissed if it appears that the state of which the respondent is an officer has been
4 prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred.
Respondent argues that the petitioner had knowledge of all
grounds for his petition by August 25, 1981, when the New
Hampshire Supreme Court summarily affirmed his conviction, yet he
failed to file a habeas petition until March 8, 1996, after the
stenographic records of his trial had been destroyed according to
superior court practice.
Because the court dismisses petitioner's petition on
alternative grounds, however, it need not resolve respondent's
Rule 9(a) argument. Accordingly, respondent's motion to dismiss
is denied without prejudice.
Both petitioner and respondent have moved for summary
judgment. Respondent argues, inter alia, that some of
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Morehouse v. NH State Prison CV-98-304-M 04/09/99 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Patrick Morehouse, Petitioner
v. Civil No. 98-304-M
Michael J. Cunningham, Warden New Hampshire State Prison Respondent
O R D E R
Patrick Morehouse's pro se petition for writ of habeas
corpus (28 U.S.C. § 2254) argues that his 1981 conviction for
attempted murder violated the double jeopardy provision of the
federal constitution, as well as his rights to due process, egual
protection and effective assistance of counsel. Petitioner has
filed a motion for summary judgment and respondent has filed
motions to dismiss and for summary judgment.
On March 15, 1979, Petitioner was convicted of attempted
murder after a jury trial in Hillsborough County Superior Court,
and was sentenced, on March 19, 1979, to an extended term of 10
to 30 years imprisonment. Petitioner appealed his conviction to
the New Hampshire Supreme Court, arguing that (1) the state
failed to present sufficient evidence that petitioner intended
the death of his victim; (2) that he was not given notice that he
could receive an enhanced sentence for a crime involving
exceptional cruelty or depravity; (3) that the facts on which his
enhanced sentence was based were not found by a jury beyond a
reasonable doubt; and (4) that the court failed to make specific factual findings supporting an enhanced sentence. The New
Hampshire Supreme Court rejected each of petitioner's claims but,
on rehearing, reversed petitioner's conviction on a different
ground — an erroneous reasonable doubt instruction. See State v.
Morehouse, 120 N.H. 738 (1980).
Petitioner was retried and was again convicted and sentenced
to an enhanced 10 to 30 year prison term. Petitioner appealed
his second conviction to the New Hampshire Supreme Court, arguing
(1) that the state had not presented sufficient evidence of
intent to kill and (2) that petitioner was entitled to both
notice of the possibility that an enhanced sentence could be
imposed, and a jury determination beyond a reasonable doubt of
facts supporting an enhanced sentence.
The New Hampshire Supreme Court ordered petitioner's counsel
to "file a memorandum explaining why the issues in this case are
different from those considered by the court in [State v.
Morehouse, 120 N.H. 738]." (Appendix G to Respondent's Answer
(hereinafter cited as "App. __")) Petitioner responded that "the
issues which would be briefed and argued in the [second] appeal
would be identical to those argued and briefed in [the previous
appeal]." (App. H.) The New Hampshire Supreme Court then
summarily affirmed petitioner's second conviction, since
resolution of the issues presented were subject to controlling
precedent — Morehouse's own earlier case.
On March 8, 1996, Petitioner filed a petition for writ of
habeas corpus in this court. Civil No. 96-138-B, that, after two
2 amendments, was dismissed without prejudice as a mixed petition.
See Rose v. Lundv, 455 U.S. 509, 522 (1982). Petitioner's
request for a certificate of appealability from the First Circuit
Court of Appeals, which the court treated as a request for a
certificate of probable cause, was denied on December 17, 1997.
Petitioner then filed, on December 29, 1997, a petition for
writ of certiorari to the New Hampshire Supreme Court "to inspect
for irreqularities the procedures and methods th[e] Court
utilized when it affirmed the petitioner's direct appeal" of his
second conviction. (App. P.) The petitioner presented the
followinq issues to the New Hampshire Supreme Court: (1) whether
he was deprived of effective assistance of counsel when the court
summarily affirmed his conviction without orderinq a transcript
of the retrial; (2) whether he was deprived of due process, equal
protection and effective assistance of counsel when the court
directed his counsel to file a memorandum explaininq how the
issues raised differed from those raised in his prior appeal and
to indicate which witness testimony need not be transcribed; (3)
whether he was deprived of due process when he was not notified
that he could receive an extended sentence; (4) whether he was
deprived of due process and equal protection when the court
summarily affirmed his conviction three days before the New
Hampshire leqislature amended the extended sentencinq statute to
require pre-trial notice; and (5) whether the superior court on
retrial made factual findinqs sufficient to support a
determination of exceptional cruelty or depravity that were also
3 different enough from the facts used to prove the underlying
crime to not subject petitioner to double jeopardy. On April 2,
1998, the Supreme Court denied Morehouse's petition for writ of
certiorari.
Petitioner then filed a second habeas petition in this
court, on May 11, 1998. He advanced the following grounds for
his petition: (1) The New Hampshire Supreme Court deprived him of
due process, egual protection, and effective assistance of
counsel when, on August 25, 1981, it summarily affirmed his
conviction without first obtaining transcripts of his retrial;
(2) the state did not present sufficient evidence to prove
petitioner's guilt beyond a reasonable doubt; (3) imposition of
an enhanced sentence subjected him to double jeopardy, and
failure to give him notice that an enhanced sentence could be
imposed violated his rights under the Fifth, Sixth, Ninth, and
Fourteenth Amendments of the United States Constitution; and (4)
he was deprived of effective assistance of counsel on appeal.
Petitioner also attempted to incorporate, in support of his
petition, "'EACH AND EVERY FACTUAL GROUND' as appealed to the New
Hampshire Supreme Court in State v. Morehouse, 120 N.H. 738
(1980)." (Emphasis omitted.)
Discussion
Respondent moves to dismiss Morehouse's petition under Rule
9(a) of the Rules Governing § 2254 cases, which provides:
A petition may be dismissed if it appears that the state of which the respondent is an officer has been
4 prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred.
Respondent argues that the petitioner had knowledge of all
grounds for his petition by August 25, 1981, when the New
Hampshire Supreme Court summarily affirmed his conviction, yet he
failed to file a habeas petition until March 8, 1996, after the
stenographic records of his trial had been destroyed according to
superior court practice.
Because the court dismisses petitioner's petition on
alternative grounds, however, it need not resolve respondent's
Rule 9(a) argument. Accordingly, respondent's motion to dismiss
is denied without prejudice.
Both petitioner and respondent have moved for summary
judgment. Respondent argues, inter alia, that some of
petitioner's claims - namely, (1) that the New Hampshire Supreme
Court's summary affirmance of his conviction violated his rights
to due process, egual protection, and effective assistance of
counsel; (2) that imposition of an enhanced sentence violated
double jeopardy principles; and (3) that he received ineffective
assistance by his appellate counsel - are unexhausted.
"[T]he exhaustion principle holds, in general, that a
federal court will not entertain an application for habeas relief
unless the petitioner first has fully exhausted his state
remedies in respect to each and every claim contained within the
application." Adelson v. DiPaola, 131 F.3d 259, 261 (1st Cir.
5 1997) . To satisfy the exhaustion requirement, the petitioner
must fairly present his federal claim to the state courts.
Picard v. Connor, 404 U.S. 270, 275 (1971). It is not fair
presentation of a claim, however, "where the claim has been
presented for the first and only time in a procedural context in
which its merits will not be considered unless 'there are special
and important reasons therefor.'" Castille v. Peoples, 489 U.S.
346, 351 (1989) (quoting Pa.Rule App.Proc. 1114).
Petitioner first asserted his ineffective assistance of
appellate counsel claim in his initial federal petition for writ
of habeas corpus, and first asserted the unconstitutionality of
the New Hampshire Supreme Court's summary affirmance of his
conviction in his second amendment to that petition. Following
dismissal of that petition, petitioner asserted those claims,
and, for the first time, his double jeopardy claim, in a petition
for writ of certiorari to the New Hampshire Supreme Court. Like
the petition for allocatur at issue in Castille, a petition for
writ of certiorari to the New Hampshire Supreme Court, requesting
it to exercise its original jurisdiction, will only be granted
"when there are special and important reasons for doing so."
N.H. Supreme C t . R. 11. Thus, Morehouse's petition for writ of
certiorari did not fairly present his claims to the state courts
for exhaustion purposes. See Castille, 489 U.S. at 351.
The exhaustion requirement may still be satisfied if
petitioner's claims are procedurally barred under New Hampshire
law, see id.; however, petitioner has not shown this to be the
6 case. Indeed, respondent's brief plausibly argues that
petitioner could have filed (and still canfile) a state habeas
petition. While the exhaustion principle does not require a
petitioner to seek collateral relief in the state courts "based
upon the same evidence and issues already decided by direct
review," Castille, 489 U.S. at 350 (internal quotation marks
omitted), where he asserts an issue not presented on direct
appeal "he must use available state collateral procedures to
satisfy the exhaustion requirement." Lowe v. Scott, 48 F.3d 873,
875 (5th Cir. 1995) .
Because Morehouse's latest petition is still "mixed," i.e.,
it presents both exhausted and unexhausted claims, it should be
dismissed. See Rose v. Lundv, 455 U.S. at 522; but cf. 28
U.S.C.A. § 2254(b)(2) (West Supp. 1998) ("An 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."). Before
dismissing the petition, however, the court will allow Morehouse
yet another opportunity to amend his petition so that it asserts
only unexhausted claims. If he chooses not to do so, as is his
right, then the petition will be dismissed without prejudice to
permit him to fairly present (and exhaust) all unexhausted
federal claims to the State's courts.
7 Conclusion
For the foregoing reasons, the respondent's motion to
dismiss (document no. 15) is denied. The respondent's motion for
summary judgment (document no. 14) is granted and the
petitioner's motion for summary judgment (document no. 10) is
denied. Within fifteen days of the date of this Order plaintiff
may file a motion to amend his petition by withdrawing the
referenced exhausted federal claims, failing which his petition
for writ of habeas corpus will be dismissed, without prejudice,
for failing to exhaust available state remedies.
SO ORDERED.
Steven J. McAuliffe United States District Judge
April 9, 1999
cc: Patrick Morehouse Malinda R. Lawrence, Esg.