Moussa v. Warden, NHSP

2016 DNH 048

• Court: District Court, D. New Hampshire
• Decided: March 14, 2016
• Docket: 12-cv-014-LM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Saad Moussa

v. Civil No. 12-cv-014-LM Opinion No. 2016 DNH 048 Warden, New Hampshire State Prison

O R D E R

Petitioner, Saad Moussa, has filed a petition for a writ of

habeas corpus, under 28 U.S.C. § 2254, challenging his 2009

state court convictions and sentences on three felony stalking

charges. See State v. Moussa, No. 05-S-1993-1995 (N.H. Super.

Ct., Rockingham Cty.) (“Criminal Case”). Respondent, the warden

of the New Hampshire State Prison (“NHSP”), has filed a motion

for summary judgment (doc. nos. 34 and 35), seeking dismissal of

Moussa’s § 2254 petition (doc. nos. 1, 24, and 25) (“Petition”).

Moussa objects to the summary judgment motion.

Background

I. Underlying Offenses and Trial Proceedings

The three felony stalking convictions at issue in this

action relate to three letters received by Najwa Moussa

(“Najwa”), while she and Moussa were still married. When Najwa

received those letters, dated May 2, June 9, and June 30, 2005,

Moussa was incarcerated at the Rockingham County House of Corrections (“RCHC”), and was subject to a restraining order

(“2004 Restraining Order”), which prohibited him from having any

direct or indirect contact with Najwa. Criminal Case, Trial Tr.

vol. 1, at 43, 48, 57.

Najwa opened and read each letter upon receipt. Id. at 47,

57, 59. The letters were written in Arabic, Moussa and Najwa’s

native language, and Najwa testified in the Criminal Case that

she recognized the handwriting on each envelope and letter as

Moussa’s. Id. at 44, 55, 58, 59, 72, 107. Each of the three

letters stated that Moussa had not written the letter, Trial Tr.

vol. 2, 137,1 and that Moussa was unaware that the letters had

been sent. Trial Tr. vol. 1, 46; Trial Tr. vol. 2, 147, 149,

166. Each letter asked Najwa to drop the criminal charges and

divorce proceedings against Moussa. Trial Tr. vol.

2, at 137-38, 144-50, 155-56, 160-61, 164-65. Each letter also

contained threatening statements. Trial Tr. vol. 1, 47, 56, 59.

Moussa was indicted on three counts of stalking, one for

each letter, pursuant to N.H. Rev. Stat. Ann. (“RSA”) §§ 633:3-

1At trial, Haythram Aukra, an Arabic-English translator testified that he had prepared written English translations of each letter. During his testimony, Aukra read the entirety of the English translations into the record. See Trial Tr. vol. 2, 131-38 (May 2 letter); id. at 139-51 (June 9 letter); id. at 153-70 (June 30 letter). Where the court refers, in this Order, to the contents of any of the letters in English, it refers to Aukra’s translation as it appears in the trial transcript.

2 1, I(c) and II(a)(7); RSA §§ 173-B:9, IV(c); and RSA §§ 173-B:1,

I(d). See doc. no. 30, Ex. B. Because Moussa had a prior

conviction for violating a restraining order, each stalking

offense was charged as a felony.

Several lawyers were appointed to represent Moussa in the

pretrial period. Attorney Neil Reardon, the last of those, was

appointed after a pretrial conference on December 23, 2008, when

Moussa, then proceeding pro se, requested counsel, as Moussa

stated he had medical issues that prevented him from

representing himself at the upcoming January 2009 trial. The

court granted the motion and continued the trial. Moussa then

filed a pro se motion in February 2009, asserting that he was

dissatisfied with Attorney Reardon’s representation and pretrial

investigation. The court held a hearing on that motion on March

16, 2009, prior to jury selection on the first day of the trial.

After hearing from both Moussa and Attorney Reardon, the trial

judge advised Moussa to proceed with Attorney Reardon as his

trial counsel, but gave Moussa the option of proceeding pro se,

with Attorney Reardon as stand-by counsel, with the caveat that,

in either case, the trial would not be continued. After Moussa

decided to represent himself, Moussa sought a continuance, which

the trial judge denied.

3 Najwa was the first witness. Najwa testified that some of

the threats in the letters were the same threats, in the same

words, Moussa had previously made to Najwa. Trial Tr. vol. 1,

105. Najwa took the threats seriously and was afraid for her

life and her daughter’s life. Id. at 44, 56, 59-60, 81.

Moussa objected to Najwa’s testimony concerning the June 9

letter, stating that he had not received a copy of that letter

prior to trial. Id. at 48. The State advised the court that

copies of the letters had been provided before trial to three

attorneys who had previously represented Moussa in the pretrial

period, including Attorney Reardon who was then serving as

stand-by counsel, and that one of Moussa’s attorneys had had two

of the letters translated. Id. at 49. The court told Moussa

that it would insure he received copies of all of the letters,

and the trial continued. Id. at 52.

When Najwa’s direct testimony concluded, Moussa cross-

examined her. See generally id. at 61-104. Much of the cross-

examination consisted of Moussa arguing with the court or

attempting to respond to the state’s objections to his

questions. Id. The record reflects that at times during his

cross-examination, Moussa was screaming and yelling at Najwa.

See, e.g., id. at 79-81, 105.

4 After numerous unsuccessful attempts to question Najwa,

Moussa sought to ask her questions apparently designed to cast

doubt on his ability to send the letters from the jail. See id.

at 102-03. The following exchange took place:

COURT: Anything else about the letters, sir?

MOUSSA: Yes, Your Honor. This is my first question. This is very simple question. I have to ask this question. I have to ask about the letter. How she received that letter. Does she have a stamp from the jail or not? How it become like I send her, if I am in custody. Okay? How am I become – send it to her? The 15th, okay, when she was saying, okay, I told – in the letter, okay, she said I threaten her. Okay, when the letter it say, Saad love you. Okay. He never –

STATE: Objection, Your Honor.

COURT: Sir, she testified that she, in her mailbox, got three letters.

MOUSSA: Your Honor, you do whatever you want.

COURT: Okay.

MOUSSA: I’m all set. Thank you so much. And I want to tell you one thing before I leave. This lawyer, I don’t want him to do anything –

MOUSSA: -- on my behalf.

COURT: All right.

MOUSSA: This is the case. You want to send me to life, send me to life. But I want to tell you one thing, okay, give me death penalty and don’t send me for one day.

5 COURT: So you don’t want –

MOUSSA: Thank you so much.

COURT: You –

MOUSSA: That miserable court –

COURT: Okay. You don’t want to participate any further, right?

MOUSSA: Bye.

Id. at 102-04. Moussa then left the courtroom and did not

return for the remainder of the trial. Before adjourning for

the day, the court instructed the jury that they could draw no

negative inference about Moussa’s guilt based on the exercise of

his right to represent himself, or to voluntarily absent himself

from the trial. Id. at 120-21.

After Najwa testified, Sgt. Eric Lamb of the Salem Police

Department (“SPD”) testified that each time Najwa received a

letter from Moussa, she reported it to Sgt. Lamb. Id. at 43-44,

48, 57, 110, 112-13, 116. Sgt. Lamb testified that he forwarded

the letters to the State Lab for fingerprint analysis, id. at

111, 114, 116, and he testified regarding his further

investigation concerning the June 30 letter. Id. at 117. Sgt.

Lamb testified:

In [the June 30 letter] it has specified that there was a Middle Eastern subject who had just gotten

6 released form (sic) the jail and that he was going to threaten Najwa and possible (sic) injure her. He was going to act on Saad’s behalf to do something to Najwa and she was very concerned about that – very afraid that that may happen. Id. Sgt. Lamb contacted the RCHC and found out that a man of

Middle Eastern descent, Oner Nusret, had recently been released

from the RCHC. Id. at 117-118. Najwa told Sgt. Lamb that she

did not know Nusret. Id. at 119. Sgt. Lamb spoke to Nusret who

stated he knew Moussa from the RCHC. Id. at 118.

Lisa Corson, a criminalist at the State Lab, testified that

she compared fingerprints found on each of the letters with a

“known recording” of Moussa’s fingerprints. Trial. Tr. vol. 2,

182, 186, 188. The known recording consisted of cards that had

Moussa’s name, address, and fingerprints on them. Id. at 182-

83, 186, 188-89. Corson testified that she matched one

fingerprint on each letter to Moussa’s fingerprint cards. Id.

at 182-83, 186, 188.

The evidence closed on March 17, 2009. Id. at 202. The

State made a closing argument to the jury, id. at 203-20, and

the court instructed the jury on the law. Id. at 220-38. The

following day, March 18, 2009, the jury found Moussa guilty on

each of the three stalking charges. Trial Tr. vol. 3, 241.

7 II. Moussa’s Health Issues

After Moussa left the courtroom on March 16, 2009, officers

transported him to the RCHC, where he was an inmate. That

evening, Moussa asserts, he had severe chest pains and other

medical complaints, and was transported to Exeter Hospital by

ambulance at approximately 3:00 a.m. on March 17, 2009. See

doc. no. 43, Ex. Y. Moussa’s treating physician on March 17,

2009, admitted him to the hospital, where Moussa underwent a

cardiac catheterization procedure on March 18, his third since

August 2008. See id.

There is nothing in the trial record suggesting that the

court received notice of Moussa’s hospitalization before the

trial concluded. The record from Moussa’s state post-conviction

proceedings, however, includes two unsworn documents bearing the

signature of Paul Roberts, a corrections officer who had been

assigned to watch Moussa at Exeter Hospital on March 17, 2009.

The first document states that Roberts spoke on the phone with

an “officer” on March 17, 2009, who asked if Moussa would be

attending court on that date, and that Roberts told the officer

that Moussa was going to have surgery. Doc. no. 36-11, 1. The

second document, dated December 21, 2011, states that Roberts

believed that the first document addressed the court’s awareness

of Moussa’s health issues and hospitalization. Doc. no. 36-11,

8 2. Nothing else in the record suggests that, prior to the

conclusion of trial, the trial court received notice of Moussa’s

March 17-18, 2009, hospitalization.

III. Sentencing - May 27, 2009

Moussa’s sentencing hearing was scheduled for May 27, 2009.

Prior to that hearing, Moussa filed a motion requesting that the

court appoint him counsel for sentencing. State v. Moussa, 164

N.H. 108, 124 (2012). On the day of sentencing, after hearing

from both parties on the issue, the court denied Moussa’s

request for counsel, as follows:

This gentleman has now been part of the criminal justice system for almost five years. During the course of that period of time, he’s had several lawyers. He’s mentioned two this morning. Joe Malfitani, who’s one of the top five criminal lawyers in this state and has been for many years, has represented him. Neil Reardon has also been a 25-year lawyer, dealing exclusively in criminal matters, has represented him. And in both of those instances, he was unable to communicate and work with those lawyers. It would be highly unlikely that any other lawyer that I might appoint for him would have any more success that (sic) those seasoned criminal lawyers have had in the past, and that’s why I’m not appointing a lawyer for him with respect to the issue of sentencing.

Sent’g Tr. at 38-39.

The court then imposed the maximum sentence available for

the charges, three 3½ – 7 year prison terms, to be served

consecutively to one another, and to the prison sentence Moussa

was serving at the time of sentencing. See doc. no. 30, Ex. B.

9 In imposing this sentence, the court stated:

Now, if you look at these three charges, they involve – they’re the same charge in the sense that they’re the same crime, stalking. The methodology is the same, letter writing. The period of time between the first and the last letter is 60 days or less. I think the temptation for anyone – and I’m not now referencing – and I have in mind my colleagues on sentence review – the temptation is to look at these three matters and say that there’s some stand committed time that should be ordered in one, but because the other two are so similar and so close in time, a consecutive suspended sentence would probably be in order.

And in 99 out of 100 cases, that would be the approach that I would take. I’ve had a lot of these domestic violence dispute matters over the years. And the temptation is to look at these three charges, consider the conduct being essentially the same and not warranting consecutive stand committed sentences.

But this is the exception. This is the exception. This gentleman has been confined now for nearly five years with respect to this domestic situation that he’s been in. His attitude towards his ex-wife and the rest of the domestic proceedings has never changed. He is as defiant now as he was at the time of the original restraining order back in 2004. If you look at the trial that he’s been involved in, his attitude, demeanor has never changed. He has – in the vernacular, he has never gotten it. He doesn’t get it. Most times, you have people in domestic situations who do make threats, and they are confined, usually for a few days, sometimes for a few weeks, maybe even sometimes for a few months, but eventually they get it. Eventually the conduct stops. Eventually they can work with counsel. Eventually they can accept reasonable dispositions for their actions. And none of that is applicable to Mr. Moussa’s case.

His attitude and demeanor now is the exact same as it was in 2004. The threats that the victim is concerned about now are exactly the same as the threats that she

10 was receiving back in 2004. And unless there’s a change in that demeanor – and I’ve seen none to date – then he is a real, real threat risk. Having said that, I do believe that the State’s recommendations with respect to all three of these matters are the appropriate recommendations based upon the history of these cases. So I am going to impose consecutive three and a half to seven year state prison sentences on all three of these matters. And they’ll also be consecutive to the other cases that have been tried with this gentleman in the past.

Let me say this, though. There is a right that this gentleman has that is not invoked that often. And I’ll say this for the record. It’s RSA 651.20. The gentleman has the right, based upon certain conditions and time frames to petition this Court for a review of his sentences. Having in mind what they are, he will have that right here. He will be able to file a motion to suspend or defer some of the sentences that he’s being given today. And I am going to lend a – I’m not going to forget this case. I have thousands of them out there, over 25 years, but this is a case which I won’t forget. If I see any positive changes in his attitude and the professionals that may be involved with him indicate that he’s finally gotten it, he deserves some attention, he deserves some consideration, I’m willing to do that. I don’t look at 651.20 as being some arbitrary statute that’s not entitled to any real meaning. In this case, it has some teeth, and I’m more than willing to stay involved in this gentleman’s cases, but the keys to the jail are really up to him. He’s got to show a tremendous change in attitude about virtually all of his thought processes. And I’ve just seen none to date, so the State’s recommendations under these – for these reasons are more than appropriate, and they, in fact, will be ordered and imposed herein.

Id. at 39-42.

11 IV. Direct Appeal

Moussa appealed his conviction to the New Hampshire Supreme

Court (“NHSC”). See Notice of Appeal (June 29, 2009) (doc. no.

30, Ex. A). In his pro se notice of appeal, Moussa raised the

following issue:

The defendant had No counsel and Not presented at the trial due to his medical condition issues he have and move by the Ambulance to the Exeter Hospital due to heart Attack and had a Surgery in the first day of his trial, which May (sic) 16, 2009, after he spend 3 days at the Hospital. The defendant’s did Not have a fair trial.

Id. Chief Appellate Defender Christopher Johnson was appointed

to represent Moussa on appeal. Attorney Johnson obtained

permission to brief issues not raised in the notice of appeal.

See Def’s Br., Oct. 24, 2011 (doc. no. 25-1, Ex. A; doc. no. 30,

Ex. F). The NHSC affirmed Moussa’s convictions and sentence.

See Moussa, 164 N.H. at 113.

V. Motion for New Trial

On December 10, 2010, Moussa filed a motion for a new trial

in the RCHC. See Def.’s Mot. New Trial, Dec. 10, 2010 (doc. no.

30, Ex. C). In his motion, Moussa argued that he was denied his

Sixth and Fourteenth Amendment rights when: Moussa’s trial was

conducted in his absence, when his absence was not voluntary;

the trial court denied Moussa a continuance; and the trial court

improperly denied Moussa counsel for sentencing. See id.

12 In its objection to Moussa’s motion for a new trial, the

State argued that Moussa never indicated to the court on March

16, 2009, that he was suffering from any health issues, and did

not notify the court that he had been in the hospital during or

after the trial, until his sentencing on May 27, 2009. See

State’s Obj. to Def’s Mot. New Trial, Jan. 21, 2011 (doc. no.

43, Ex. X). To the contrary, the State argued, everything in

the trial record indicates that the court believed that Moussa

had voluntarily absented himself from the trial; Moussa waived

his right to counsel, and neither requested new counsel to

represent him at trial, nor expressed an intention to obtain

private counsel. See id. The trial court denied the motion for

new trial “[f]or all of the reasons set forth in the State’s

objection.” See Criminal Case, Feb. 11, 2011, Order (doc. no.

30, Ex. M).

Moussa appealed the trial court’s decision. See id. The

NHSC declined the appeal on May 19, 2011.

VI. Sentence Review

After Moussa was sentenced, he appealed his sentence to the

New Hampshire Superior Court Sentence Review Division. The

Sentence Review Board (“SRB”) upheld the sentence without

providing reasons for its decision. See Criminal Case (N.H.

Super. Ct., Sent. Rev. Div., Sept. 23, 2010) (doc. no. 25-1, Ex.

13 D). Moussa filed a petition challenging that decision in the

NHSC, and counsel was appointed to represent him in that

proceeding before the NHSC. See In re Moussa, No. 2011-0005

(N.H. Apr. 7, 2011) (doc. no. 25-1, Ex. D). The NHSC affirmed

the SRB decision, finding that the sentence was reasonably

supported by the record before the trial court and the SRB and

did not constitute an unsustainable exercise of discretion. See

In re Moussa, No. 2011-0005, slip op. at 2-3 (N.H. June 3, 2013)

(doc. no. 25-1, Ex. D).

The NHSC granted Moussa leave to file a pro se motion to

reconsider. See id., Order, June 26, 2013 (doc. no. 25-1, Ex.

D). In his motion to reconsider, Moussa argued that the SRB

decision violated his rights under the Fifth, Eighth, and

Fourteenth Amendments. See id., Pet’r’s Mot. Recons., July 5,

2013 (doc. no. 25-1, Ex. D). The NHSC denied the motion for

reconsideration without issuing a statement of reasons. See

id., Order, Aug. 20, 2013 (doc. no. 25-1, Ex. D).

VII. Motion to Modify Sentence

On July 8, 2013, Moussa filed a motion seeking to suspend

the remainder of his sentence, on the basis that he had made the

attitude and behavioral changes the court had discussed at

Moussa’s May 29, 2009, sentencing hearing. See Mot. Modify

Sent., July 8, 2013 (doc. no. 25-1, Ex. E). The court granted

14 Moussa’s motion, over the state’s objection. See, Order (N.H.

Super. Ct., Rockingham Cty., Dec. 12, 2013) (doc. no. 25-1, Ex.

E). The State filed a petition for a writ of certiorari in the

NHSC, maintaining that the sentencing court acted outside of its

authority under RSA § 651:20 when it suspended Moussa’s

sentence. See In re N.H., No. 2014-0099 (N.H.), Pet. Writ

Cert., Feb. 7, 2014 (doc. no. 25-1, Ex. F; doc. no. 30, Ex. Q);

State’s Br., May 22, 2014 (doc. no. 25-1, Ex. F; doc. no. 30,

Ex. S); State’s Mem. of Law in lieu of Reply Br., October 23,

2014 (doc. no. 25-1, Ex. F; doc. no. 30, Ex. U).

In responding to the State’s petition, Moussa, through

counsel, briefed only arguments based on state law. See In re

N.H., Def.’s Br., June 11, 2014 (doc. no. 25-1, Ex. F; doc. no.

30, Ex. T). With the NHSC’s permission, see id., Order (July

11, 2014), Moussa asserted federal constitutional claims in a

pro se supplemental brief. See id., Def’s. Pro Se Suppl. Br.,

June 16, 2014 (doc. no. 25-1, Ex. F). The NHSC ruled in favor

of the State, reversing the sentencing court’s order modifying

Moussa’s sentence. See id., Slip Op., 5 (July 11, 2014).

VIII. State Habeas Petition

Moussa filed a petition for a writ of habeas corpus in the

Merrimack County Superior Court (“MCSC”). See Moussa v. Gerry,

No. 217-2013-CV-0002 (N.H. Super. Ct., Merrimack Cty.) Pet. Writ

15 Habeas Corpus, Nov. 5, 2012 (doc. no. 25-1, Ex. B). The MCSC

found that in his habeas petition, Moussa “alleg[ed] (1)

ineffective assistance of trial counsel; (2) that he was forced

to appear pro se at trial against his will; (3) that trial

continued without him, and he claims he did not consent to this;

and (4) ineffective assistance of trial counsel.” Id., Order

(Mar. 19, 2013) (doc. no. 25-1, Ex. B). The court held a

hearing on the motion on March 8, 2013. Id. at 1.

On March 19, 2013, the MCSC issued an order stating, “This

Court will not hear or address Moussa’s first three arguments

because they re-allege the exact issues the New Hampshire

Supreme Court has already determined did not infringe Moussa’s

constitutional rights.” Id. The court then granted leave for

the State to depose Attorney Johnson, which was conducted on May

1, 2013.

On December 5, 2013, after both parties submitted

supplemental briefing, the MCSC denied habeas relief on Moussa’s

ineffective assistance of appellate counsel claim. See id.,

Order, 1 (Dec. 5, 2013) (doc. no. 25-1, Ex. C; doc. no. 30, Ex.

V). The court found that Attorney Johnson’s decisions not to

brief certain issues, and to remove issues from a draft brief,

were strategic, based on Attorney Johnson’s professional

judgment, and were not the product of deficient representation.

16 See id. at 3. Further, the court found that the claims Attorney

Johnson decided not to brief were frivolous, and thus Moussa was

not prejudiced by their omission. See id. at 3-4.

Moussa filed a notice of discretionary appeal in the NHSC,

seeking reversal of the denial of his state habeas action. See

Moussa v. Gerry, No. 2014-0013 (N.H.), Notice of App., Jan 5,

2014 (doc. no. 25-1, Ex. C; doc. no. 30, Ex. V). The NHSC

declined the appeal. See id., Order (Apr. 3, 2014) (doc. no.

25-1, Ex. C; doc. no. 42, Ex. Z).

IX. Federal Habeas Claims

The Petition here contains the following claims2:

1. Moussa’s Sixth and Fourteenth Amendment rights were violated when the trial court forced Moussa to choose between representing himself or going to trial with counsel who, Moussa alleged, was providing ineffective assistance of counsel.

2. Moussa’s Sixth and Fourteenth Amendment rights were violated when the trial court denied Moussa’s request for a brief continuance to allow him time to find a private attorney, as Moussa’s court-appointed attorney had failed to adequately prepare for trial.

3. Moussa’s Sixth and Fourteenth Amendment rights were violated when the RCSC held proceedings in his absence, when his absence was involuntary and caused by a medical crisis.

2Inits September 30, 2014, Order (doc. no. 26), the court used different numbering and wording for the same claims. Throughout this Order, the court refers to the claims by the numbers used here.

17 4. Moussa’s Sixth and Fourteenth Amendment rights were violated when the trial court improperly admitted inculpatory evidence at trial, a letter and its translation, that had not been provided to Moussa in pretrial discovery.

5. Moussa’s Sixth and Fourteenth Amendment rights were violated when the trial court commented on certain evidence in the case in such a manner as to give credence to the most inculpatory interpretation of that evidence.

6. Moussa’s Sixth and Fourteenth Amendment rights were violated at trial when the court allowed inadmissible evidence to be admitted, in that: (a) Sgt. Lamb testified to inadmissible hearsay statements made to him that served to corroborate Najwa’s testimony; and (b) Criminalist Corson referred, in her testimony, to fingerprint cards that purported to bear Moussa’s fingerprints, without the cards having been properly authenticated.

7. Moussa’s Sixth and Fourteenth Amendment rights were violated when the trial court refused Moussa’s request for court-appointed counsel to represent Moussa at sentencing, finding that Moussa had, by his conduct, waived his right to counsel at sentencing.

8. Moussa’s Eighth and Fourteenth Amendment rights were violated when the sentencing court improperly applied the sentence enhancement contained in RSA § 173-B:9, and thus sentenced Moussa on three felony counts of stalking, when the criminal stalking statute, RSA § 633:3-a, VI(b), only allowed those offenses to be charged as misdemeanors.

9. Moussa’s Fourteenth Amendment rights were violated when the RCSC denied Moussa an evidentiary hearing on his motion for a new trial.

10. Moussa’s Eighth Amendment rights were violated when the SRB left Moussa’s sentences unchanged, and those sentences were disproportionately harsh for his crimes, and exceeded, by a large margin, the sentences other criminal defendants in New Hampshire had received on similar charges in the five years prior to Moussa’s SRB hearing.

18 11. Moussa’s Eighth and Fourteenth Amendment rights were violated when he was denied the ability to obtain modification and/or suspension of his sentences outside the parameters of RSA § 651:20.

12. Moussa’s Fourteenth Amendment rights were violated when the MCSC denied Moussa an evidentiary hearing on his state habeas petition.

13. Moussa’s Sixth Amendment right to the effective assistance of trial counsel was denied when Attorney Reardon: (a) failed to conduct adequate pretrial investigation, and (b) failed to subpoena exculpatory witnesses to trial.

14. Moussa’s Sixth Amendment right to the effective assistance of appellate counsel was denied when Attorney Johnson: (a) failed to raise any federal constitutional challenge to the SRB decision concerning Moussa’s sentence, and (b) refused to raise, in Moussa’s direct appeal, a claim for relief based on the ineffective assistance of trial counsel.

Discussion

I. Claims Decided on the Merits in State Court

A. Standard of Review

A federal court may grant habeas corpus relief “only on the

ground that [a petitioner] is in custody in violation of the

Constitution or laws or treaties of the United States.” 28

U.S.C. § 2254(a); see also Cullen v. Pinholster, 563 U.S. 170,

181 (2011). When a prisoner brings a claim in federal court

that was adjudicated on the merits in State court proceedings,

[f]ederal habeas relief may not be granted for claims subject to § 2254(d) unless it is shown that the earlier state court’s decision was contrary to

19 federal law then clearly established in the holdings of th[e Supreme] Court, or that it involved an unreasonable application of such law, or that it was based on an unreasonable determination of the facts in light of the record before the state court.

Harrington v. Richter, 562 U.S. 86, 100 (2011) (internal

quotation marks and citations omitted).

A state court’s ruling is contrary to federal law either when it adopts a rule that contradicts the governing law set forth in the Supreme Court’s cases or when it reaches a different result from a Supreme Court decision under a set of facts that are materially indistinguishable. . . . To be unreasonable . . . the application of federal law must be more than incorrect or erroneous. In other words, some increment of incorrectness beyond error is required. Finally, we only overturn state court factual determinations that are unreasonable in light of the record.

Rosenthal v. O’Brien, 713 F.3d 676, 683 (1st Cir. 2013)

(internal quotation marks and citations omitted). The

petitioner bears the burden both of showing that the state court

decision is contrary to, or involves an unreasonable application

of, established federal law, and of rebutting the presumption of

correctness of state court factual findings by clear and

convincing evidence. See 28 U.S.C. § 2254(e)(1).

B. Claims 1 - 3: Self-Representation, Denial of Continuance, and Absence from Trial

In the claims identified above as Claims 1, 2, and 3,

Moussa asserts that his Sixth Amendment right to a fair trial,

to counsel, and to confront the witnesses against him were

20 violated when: the trial proceedings were held in his absence

when Moussa did not voluntarily waive his right to be present at

trial; Moussa was forced to choose between going to trial with

ineffective counsel and representing himself; and Moussa’s

request for a brief continuance of the trial was denied,

depriving him of the ability to obtain private counsel. Moussa

did not raise any of these issues at the time of trial. Moussa

first sought relief concerning his allegedly involuntary absence

from trial in his notice of direct appeal of his conviction, see

doc. no. 30, Ex. A, but appellate counsel did not brief that

issue and the NHSC did not allow Moussa to file a pro se

supplemental brief raising the issue. See Moussa, No. 2009-

0451, Order, Dec. 7, 2011 (doc. no. 25-1, Ex. A).

Moussa did raise the issues in Claims 1 – 3, however, in

his motion for a new trial in the RCSC. See Criminal Case,

Def’s Mot. New Trial, Dec. 10, 2010 (doc. no. 30, Ex. C). In

denying Moussa’s motion, the trial court explicitly adopted the

reasoning set forth in the State’s objection to Moussa’s motion,

id., Order, Feb. 11, 2011 (doc. no. 30, Ex. M), thereby finding

that:

 On the day of trial, Moussa never indicated to the court that he was having a medical problem or that he was leaving the courtroom due to medical issues;

 Moussa’s allegations that he was incoherent when leaving the courtroom were not true;

21  Moussa voluntarily absented himself from the courtroom;

 Moussa stated in both his presentence investigation interview and in his presentencing motions that he left the trial because he believed he was not getting a fair trial and the trial was not going his way, and he did not raise any medical reasons in either the presentence investigation interview or in his presentencing motions;

 Moussa voluntarily waived his right to counsel after being told that the trial would not be continued, and that he had the choice to proceed either with Attorney Reardon or pro se.

See id.; see also, St.’s Obj. Mot. New Trial, Jan. 21, 2011

(doc. no. 43, Ex. X).

“If the last state court to review a petitioner’s case

reaches the merits of a federal claim presented to it, any bar

to federal court review is lifted.” Gunter v. Maloney, 291 F.3d

74, 80 (1st Cir. 2002) (citing Ylst v. Nunnemaker, 501 U.S. 797,

801 (1991)). The RCSC resurrected those claims by adjudicating

them on the merits. Because the RCSC’s February 14, 2011, Order

denying the motion for new trial is the last reasoned decision

on the merits of those claims, this court must defer to that

court’s decision unless Moussa can demonstrate that the decision

is contrary to, or involves an unreasonable application of,

established Supreme Court precedent, or is based on a finding of

fact that is unreasonable in light of the record then before

court. See 28 U.S.C. § 2254(e)(1).

22 A criminal defendant who is denied counsel at trial, absent

a voluntary and intelligent waiver of his right to counsel, may

state a claim under the Sixth Amendment. See Marshall v.

Rodgers, 133 S. Ct. 1446, 1449 (2013). Similarly, a defendant

has a right to be present at all stages of his criminal trial,

and a conviction obtained where the defendant was not afforded

the right to appear at trial may be reversed. See Crosby v.

United States, 506 U.S. 255, 259 (1993). However, the Supreme

Court has acknowledged an exception to that rule, in that a

defendant in a noncapital case may waive his right to be present

at trial “‘if, after the trial has begun in his presence, he

voluntarily absents himself.’” Id. at 260 (quoting Diaz v.

United States, 223 U.S. 442, 455 (1912)).

Here, the RCSC reasonably found, on the record before it,

that Moussa voluntarily absented himself from trial, and thus

waived his right to be present at trial. The record also

supports the finding that Moussa’s waiver of counsel and

decision to represent himself was knowing and voluntary. Moussa

has failed to show that the decision was contrary to or involved

an unreasonable application of Supreme Court law. Therefore,

Moussa may not obtain habeas relief on the claims identified

above as Claims 1 - 3.

23 C. Claim 7: Denial of Sentencing Counsel

Moussa asserts that his Sixth Amendment right to counsel

was violated when he was denied sentencing counsel based on the

court’s finding that, despite his request, Moussa had,

voluntarily and knowingly waived his right to counsel at

sentencing by his demonstrated inability to cooperate with

several previous attorneys. See Sent. Tr. 38-39. The trial

court further found that the lack of counsel at sentencing did

not prejudice Moussa, as the trial judge who imposed the

sentence had presided at trial, and had reviewed two detailed

Presentence Reports that provided the court with the information

it utilized in deciding Moussa’s sentence. Id.

Moussa raised this issue in the direct appeal of his

conviction, alleging that the denial of sentencing counsel

violated Moussa’s Sixth Amendment rights. Because the NHSC

denied this claim on its merits, this court applies a

deferential standard of review. See 28 U.S.C. § 2254(e)(1).

A defendant “has the right to ‘proceed without counsel when

he voluntarily and intelligently elects to do so.’” Marshall,

133 S. Ct. at 1449 (citations omitted). At the time of Moussa’s

sentencing, the Supreme Court had not explicitly determined

“what rule the Sixth Amendment . . . establishes for postwaiver

requests of appointment of counsel,” and had not “explicitly

24 addressed a criminal defendant’s ability to re-assert his right

to counsel once he has validly waived it.” Id. (internal

quotation marks and citation omitted).

Because the Supreme Court has not established clear

precedent on the question of whether, or under what

circumstances, a Sixth Amendment violation arises from the

denial of post-waiver request for appointed counsel, this court

cannot find that the NHSC’s decision contravened or unreasonably

applied such precedent. The state court decisions were based on

reasonable findings of fact in light of the record before those

courts. Accordingly, this court defers to the NHSC decision,

finding no Sixth Amendment violation in denying Moussa

sentencing counsel, and grants summary judgment on Claim 7.

D. Claim 10: Sentence Review

Moussa argues that the SRB erred in upholding his sentence,

in violation of his Eighth Amendment rights. Moussa raised his

federal constitutional challenges to the SRB decision in a pro

se motion to reconsider filed in the NHSC. See In re Moussa,

No. 2011-0005, Mot. Recons., July 5, 2013 (doc. no. 25-1, Ex.

D). The NHSC denied that motion to reconsider, without issuing

a statement of reasons. See In re Moussa, No. 2011-0005, Order,

Aug. 20, 2013 (doc. no. 25-1, Ex. D).

25 Where federal claims are raised in a state proceeding and

the state court denies the relief requested without expressly

ruling on each federal claim, there is a rebuttable presumption

that the state court adjudicated the federal claims on the

merits. See Johnson v. Williams, 133 S. Ct. 1088, 1096 (2013).

Moussa has not effectively rebutted that presumption here. Cf.

id. (presumption may be rebutted in “unusual” circumstances,

where, for example, state court omitted any consideration of

federal claims out of sheer inadvertence). This court presumes

that the NHSC rejected Moussa’s Eighth Amendment proportionality

arguments on the merits, in upholding Moussa’s sentence. Thus,

this court’s review of the NHSC’s rejection of that claim is

deferential. See 28 U.S.C. § 2254(e)(1).

“[T]he Eighth Amendment contains a ‘narrow proportionality

principle,’ that ‘does not require strict proportionality

between crime and sentence’ but rather ‘forbids only extreme

sentences that are grossly disproportionate to the crime.’”

Graham v. Florida, 560 U.S. 48, 59-60 (2010) (quoting Harmelin

v. Michigan, 501 U.S. 957, 997, 1000-1001 (1991)). Where a

proportionality challenge to a sentence involves the length of

the sentences, “the Court considers all of the circumstances of

the case to determine whether the sentence is unconstitutionally

excessive.” Graham, 560 U.S. at 59.

26 To determine whether a sentence is grossly disproportionate

in a particular case, the court first compares the gravity of

the offense and the severity of the sentence. Id. at 60.

“[I]n the rare case in which [this] threshold comparison . . . leads to an inference of gross disproportionality” the court should then compare the defendant’s sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. If this comparative analysis “validate[s] an initial judgment that [the] sentence is grossly disproportionate,” the sentence is cruel and unusual.

Id. (internal citations omitted). The sentencing hearing

transcript includes a cogent statement of reasons why the

sentence for Moussa was longer than the sentences the trial

judge believed might have been imposed in “99 out of 100”

cases. The factual findings underlying the NHSC decision

appear reasonable in light of the record before that court.

Nothing in the record manifests that the NHSC applied a

legal standard in reviewing Moussa’s sentence that could be

deemed contrary to or an unreasonable application of the

Supreme Court’s proportionality precedent, cited above.

Accordingly, Moussa cannot obtain habeas relief on Claim

10, and summary judgment is granted as to that claim.

27 E. Claims 13 and 14: Ineffective Assistance of Counsel

Moussa asserts here, as he did in his state habeas

petition, that his Sixth Amendment rights were violated because

Attorney Reardon provided him with ineffective assistance of

counsel at trial and Attorney Johnson provided him with

ineffective assistance of counsel in his direct appeal. The

relevant federal standard for evaluating an ineffective

assistance of counsel claim requires the petitioner to show

that: (1) counsel’s performance “fell below an objective

standard of reasonableness,” and (2) there is a “reasonable

probability that, but for counsel’s unprofessional errors,”

petitioner would have prevailed on those issues. See Strickland

v. Washington, 466 U.S. 668, 688, 694 (1984).

1. Trial Counsel: Claim 13

After making an appropriate inquiry of both Moussa and

Attorney Reardon concerning Moussa’s complaints about Attorney

Reardon’s performance, Trial Tr. vol. 1, 9-14, the court found

that Attorney Reardon had adequately investigated the case and

prepared for trial, and that Attorney Reardon’s actions were

consistent with a proper exercise of professional judgment and

strategic decisionmaking. In its opinion affirming Moussa’s

convictions, the NHSC reviewed the trial court’s findings about

Attorney Reardon’s performance and the record of the trial court

28 proceedings, and determined that Attorney Reardon’s actions were

supported by reasonable professional judgment, and that

therefore, “the trial court did not unsustainably exercise its

discretion in requiring the defendant to choose between self-

representation and representation by Reardon.” Moussa, 164 N.H.

at 118.

The NHSC decision is not contrary to, and is not an

unreasonable application of, the Strickland standard. Further,

the NHSC did not unreasonably find the facts based on the record

then before it. Accordingly, this court must defer to the state

court’s decision, and summary judgment is granted as to Claim

13.

2. Appellate Counsel: Claim 14

In Moussa’s state habeas action, the court, after

considering the evidence before it, and applying the appropriate

legal standard, found that Attorney Johnson’s representation of

Moussa was objectively reasonable, and that Attorney Johnson’s

decisions were the product of appropriate professional judgment.

See Moussa, No. 217-2013-CV-0002, Order, Dec. 5, 2013 (doc. no.

25-1, Exs. B, C; doc. no. 30, Ex. V). The state habeas court

further found that Attorney Johnson’s decision not to brief

certain claims did not prejudice Moussa’s appeal. Because the

state habeas court, the last state court to issue a reasoned

29 opinion on the issue, properly applied the Strickland standard,

and reasonably found the relevant facts based on the record

before it, this court defers to its finding that Moussa was not

denied the effective assistance of appellate counsel.

Accordingly, summary judgment is granted as to Claim 14.

II. Procedurally Defaulted Claims

A. Procedural Default Standard

“A state court’s invocation of a [state] procedural rule to

deny a prisoner’s claims precludes federal review of the claims

if, among other requisites, the state rule is a nonfederal

ground adequate to support the judgment and the rule is firmly

established and consistently followed.” Martinez v. Ryan, 132

S. Ct. 1309, 1316 (2012). Respondent “bears the burden ‘. . .

of persuading the court that the factual and legal prerequisites

of a default . . . are present.’” Pike v. Guarino, 492 F.3d 61,

73 (1st Cir. 2007) (citation omitted).

A federal court cannot review a procedurally defaulted

claim in a § 2254 petition, unless the petitioner demonstrates

either “cause” and “prejudice,” or “actual innocence.” Costa v.

Hall, 673 F.3d 16, 25 (1st Cir. 2012); see also Lee v. Corsini,

777 F.3d 46, 62 (1st Cir. 2015). Cause “‘ordinarily turn[s] on

whether the prisoner can show that some objective factor

external to the defense impeded counsel’s efforts to comply with

30 the State’s procedural rule.’” Costa, 673 F.3d at 25 (citation

omitted). To prove prejudice, a petitioner must demonstrate

that the violations of federal law “worked to his actual and

substantial disadvantage, infecting his entire trial with error

of constitutional dimensions.” Id. at 26 (internal quotation

marks and citation omitted) (emphasis in original).

B. Claim 4: Admission of June 9 Letter

In Claim 4, Moussa asserts that the trial court violated

his Sixth and Fourteenth Amendment rights by improperly

admitting inculpatory evidence, the June 9 letter, when Moussa

had not personally received a copy of the letter prior to the

commencement of trial. Moussa objected to the admission of the

evidence at trial, although he did not argue that the admission

of the letter constituted a federal constitutional violation.

Trial Tr. vol. 1, 48. Moussa’s appellate counsel did not brief

the claim. See Def.’s Br., Oct. 24, 2011 (doc. no. 25-1, Ex.

A). Moussa attempted to assert the claim as a federal

constitutional violation in a pro se motion for reconsideration,

see Def.’s Mot. Recons., Sept. 25, 2012 (doc. no. 25-1, Ex. A),

but the NHSC declined to consider his pro se filing. See

Moussa, No. 2009-0451, Order (Oct. 16, 2012) (doc. no. 25-1, Ex.

A).

31 If a claim “was not presented to the state courts and it is

clear that those courts would have held the claim procedurally

barred,” this court may deem the claim to be procedurally

defaulted. Pike, 492 F.3d at 73 (citation omitted). In New

Hampshire, the failure to brief a claim on appeal constitutes a

waiver of the claim. See Town of Londonderry v. Mesiti Dev.,

Inc., No. 2014-0291, 2015 WL 7816131, *2 (N.H. Dec. 4, 2015)

(citing State v. Blackmer, 149 N.H. 47, 49 (2003); State v.

Berry, 148 N.H. 88, 93 (2002)). Accordingly, because Claim 4

was not briefed on appeal, the court finds that it was

procedurally defaulted in the state courts.

Moussa has demonstrated that his attorney decided to omit

the claim from Moussa’s appellate brief, and that he did so

without Moussa’s agreement. However, as explained above in this

court’s discussion of Claim 14, Moussa was not denied his Sixth

Amendment right to the effective assistance of appellate counsel

when Attorney Johnson chose not to brief the issue of whether

the trial court erred by admitting the June 9 letter.

Accordingly, Moussa cannot rely on the ineffective assistance of

appellate counsel as “cause” for the procedural default of his

federal jury instruction claim. Cf. Costa, 673 F.3d at 25

(determinations of “cause” typically turn on whether prisoner

can show that some factor, “‘external to the defense,’” impeded

32 his or her effort to comply with state procedural rule (citation

omitted)). Moussa has thus failed to demonstrate cause and

prejudice for the default of Claim 4.

C. Claim 5: Impermissible Comment on Evidence

In Claim 5, Moussa asserts that the trial court

impermissibly commented on the evidence at trial, in violation

of Moussa’s Sixth Amendment rights. After Moussa left the

courtroom during Najwa’s cross-examination, the State conducted

the following redirect examination:

STATE: Now the defendant asked you if he ever hurt you, threatened you, things of that nature. Did the defendant ever hurt you?

NAJWA: He used to – he was violent in a way – he did not consider himself violent.

STATE: Now you said that he was violent. What would he do?

COURT: Well, let me stop. Let me just remind the State too that we’re trying here, the three letters and whether or not there’s a basis for her feeling threatened. Her testimony is, as yet unchanged, that she had a good faith basis for feeling threatened.

STATE: I understand that but just for the record, Judge, he opened the door when he asked her if he was violent towards her, pushed her, hit her, anything of that nature which is –

COURT: And her answer to the general question is yes. I don’t think we need to know the details.

33 Trial Tr. vol. 1, 106-07. Moussa argues here, as he did in

his direct appeal, that the trial court, by its comments,

endorsed the most incriminating and prejudicial

interpretation of Najwa’s arguably ambiguous testimony.

See Def.’s Br., 20-25, Oct. 24, 2011 (doc. no. 25-1, Ex.

As no contemporaneous objection was made at trial

concerning the court’s description of Najwa’s testimony, Moussa

raised the issue as plain error on direct appeal. The NHSC

applied a “plain error” standard in reviewing Moussa’s improper

comment claim. See Moussa, 164 N.H. at 118. Although Moussa

reasserted this claim in his state habeas petition, the MCSC

expressly declined to address the merits of that claim. See

Moussa, No. 217-2013-CV-0002, Order, 1, Mar. 19, 2013 (Doc. No.

25-1, Ex. B). This court finds that Claim 5 was procedurally

defaulted in the state courts. Cf. Obershaw v. Lanman, 453 F.3d

56, 68 (1st Cir. 2006) (where procedural default is caused by

failure to object at trial, fact that state court undertakes

plain error review does not remove procedural default).

To the extent Moussa asserts that the procedural default of

his improper judicial comment should be excused because it was

caused by his absence at trial, the court notes that, as

explained above in this court’s discussion of Claims 1-3, Moussa

34 voluntarily and intelligently waived his right to be present at

trial and to be represented by counsel at trial. He cannot now

claim, therefore, that his failure to object at trial was based

on a force external to the defense. Moussa has failed to show

that any objective factor external to the defense impeded his

effort to comply with the state procedural rule requiring a

contemporaneous objection at trial to preserve an issue for

appellate review.

As to a demonstration of prejudice, the court defers to the

NHSC’s finding that Moussa was not prejudiced by the court’s

comment on the evidence, as that finding was reasonable in light

of the record then before it for consideration. Cf. Trial Tr.

vol. 1, 79-83, 106-07. The NHSC found that the trial judge’s

comment on Najwa’s testimony “was not inaccurate.” Moussa, 164

N.H. at 124. The NHSC further stated that it “fail[ed] to see

how the[] [trial court’s] comments prejudiced the defendant,

and, therefore, we are not persuaded that [they] give rise to

plain error affecting the defendant’s substantial rights.” Id.

(internal quotation marks and citation omitted). For these

reasons, Moussa has not demonstrated cause and prejudice as to

Claim 5.

35 D. Claim 6: Admission of Hearsay

In Claim 6, Moussa asserts that his Sixth and Fourteenth

Amendment rights were violated when the trial court allowed the

State to introduce inadmissible hearsay evidence at trial --

first from Sgt. Lamb, and second, from the State Lab

criminalist. Because the hearsay issues were not preserved for

appellate review, Moussa’s appellate counsel challenged the

admission of the hearsay evidence as plain error under federal

and state constitutional law. Def’s Br., 17, 23 (doc. no. 25-1,

Ex. A). See State v. Towle, 167 N.H. 315, 326 (2015) (In New

Hampshire, “[t]he general rule is that a contemporaneous and

specific objection is required to preserve an issue for

appellate review.”).

The NHSC found that neither the admission of Sgt. Lamb’s

testimony, nor the testimonial references to the fingerprint

cards, affected the outcome of Moussa’s trial. Accordingly, the

court found that the admission of the challenged hearsay

evidence did not constitute plain error. See Moussa, 164 N.H.

at 119, 122. Because Moussa did not preserve the hearsay issues

by contemporaneous objections, and the NHSC subjected the claim

only to plain error review, the hearsay claims were procedurally

defaulted. Cf. Obershaw, 453 F.3d at 68.

36 Although Moussa reasserted this claim in his state habeas

petition, the MCSC declined to address the claim. See Moussa,

No. 217-2013-CV-0002, Order, 1, Mar. 19, 2013 (Doc. No. 25-1,

Ex. B). Moussa has not asserted cause and prejudice to excuse

this procedural default, and summary judgment is granted as to

Claim 6.

E. Claim 8: Felony Sentences

Moussa asserts in Claim 8 that his rights under the Fifth,

Eighth, and Fourteenth Amendments were violated when he was

sentenced to felonies pursuant to the provisions of RSA § 173-

B:19, IV, which authorizes felony sentences for convictions of

stalking that are otherwise misdemeanors under RSA § 633:3-a,

VI. As no contemporaneous objection was made at sentencing on

these ground, Moussa, through counsel, alleged on appeal that

the imposition of felony sentences under the circumstances

presented by his case constituted plain error under state law.

See Moussa, 164 N.H. at 126-27.3

3OnOctober 16, 2011, while his direct appeal was pending, Moussa filed a petition for a writ of certiorari in the NHSC, challenging the imposition of felony sentences in his case, and invoking the Fifth, Sixth, and Fourteenth Amendments. See Pet. Writ Cert., Oct. 16, 2011 (doc. no. 30, Ex. N). The record before this court does not reveal whether the NHSC accepted Moussa’s petition, but, in any event, Moussa did not obtain the relief he sought, as the felony sentences have never been vacated. Nothing in the record suggests that Moussa’s federal claims were presented to the state courts prior to the filing of

37 The failure to raise the federal issues through a

contemporaneous objection in the sentencing proceeding, and the

failure of appellate counsel to brief Moussa’s federal

constitutional challenge to his sentence waived his claim on

appeal under state law. See Town of Londonderry, 2015 WL

7816131 at *2. Accordingly, Claim 8 was procedurally defaulted

in the state courts.

Appellate counsel’s omission of the federal claim from the

brief, as discussed above, does not establish “cause” and

“prejudice” to excuse that procedural default. Moussa has not

demonstrated that any other factor “external to the defense,”

impeded his or her effort to comply with state procedural rules.

See Costa, 673 F.3d at 26. Moussa has thus failed to

demonstrate cause and prejudice for his procedural default of

Claim 8.

F. Claim 11: Sentence Modification

In Claim 11, Moussa asserts that his Fifth, Eighth, and

Fourteenth Amendment rights were violated when the NHSC denied

him the opportunity to obtain a suspension of his sentence

outside of the confines of RSA § 651:20, in contravention of the

the October 16, 2011, petition. Accordingly, the record before this court does not demonstrate that Moussa’s October 16, 2011, NHSC petition reinvigorated the claim the court now finds was procedurally defaulted at the time of sentencing.

38 sentencing court’s intent at the time of sentencing. In its

decision reversing the sentencing court’s modification of

Moussa’s sentence, the NHSC relied exclusively on state rules of

statutory interpretation. See generally In re N.H., No. 2014-

0099 (N.H. July 11, 2014). The court also found that “[t]o the

extent the defendant argues in his supplemental brief that

sentence suspensions are required by either the State or Federal

Constitutions, he has not sufficiently developed the argument to

warrant appellate review.” Id. at 5 (citing State v. Blackmer,

149 N.H. 47, 49 (2003) (appellate review confined to issues that

are fully briefed; “passing reference to constitutional claim

renders argument waived” (citation omitted))). Because the

state court invoked a “firmly established and consistently

followed” state procedural rule to deny Moussa’s federal

constitutional claims, federal habeas review of Moussa’s

sentence modification claim is deemed procedurally defaulted.

this claim should be excused because it was caused by his self-

representation and his lack of legal knowledge, the court notes

that “pro se status is insufficient to demonstrate cause and

does not excuse procedural default.” Leachman v. Stephens, 581

F. App’x 390, 396 (5th Cir. 2014), cert. denied, 135 S. Ct. 2315

(2015). Further, Moussa cannot assert that his appellate

39 counsel was ineffective where he was permitted to file a pro se

supplemental brief so that he could raise the federal

constitutional claims his attorney declined to brief. Moussa

has failed to demonstrate that any factor “external to the

defense” caused the default of this claim. See Costa, 673 F.3d

at 26 (internal quotation marks and citation omitted).

Accordingly, Moussa has failed to demonstrate cause and

prejudice for the default of Claim 11.

G. Actual Innocence

“In certain exceptional cases involving a compelling claim

of actual innocence, however, the state procedural default rule

is not a bar to a federal habeas corpus petition.” House v.

Bell, 547 U.S. 518, 522 (2006). To overcome a procedural

default with a credible claim of actual innocence, petitioner

must present “‘new reliable evidence – whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or

critical physical evidence -- that was not presented at trial,’”

and that “in light of new evidence ‘it is more likely than not

that no reasonable juror would have found petitioner guilty

beyond a reasonable doubt.’” Id. at 537 (quoting Schlup v.

Delo, 513 U.S. 298, 324, 327 (1995)).

Moussa maintains in this action that he did not send the

May 2, June 9, or June 30 letters, and is therefore innocent.

40 He has not, however, submitted any new evidence in support of

that claim, and has only offered speculative theories about who

else might have sent the letters. Such general assertions and

speculation do not provide a basis upon which an actual

innocence claim may be found, as they do not constitute “new

reliable evidence . . . that was not presented at trial.”

Schlup, 513 U.S. at 324. Moussa has thus failed to demonstrate

actual innocence as an excuse for any of his procedural

defaults. Accordingly, the court grants summary judgment on

each of the procedurally defaulted claims discussed above,

Claims 4-6, 8, and 11.

III. Claims Asserting State Law Error: Claims 9 and 12

Moussa alleges that his Fourteenth Amendment due process

rights were violated when the RCSC denied his motion for a new

trial, and the MCSC denied his state court habeas petition,

without evidentiary hearings (Claims 9 and 12). Moussa has

pointed to no established Supreme Court precedent that provides

him with a federal due process right to an evidentiary hearing

in the state court under the circumstances of this case.

Further, Moussa has not asserted what evidence or argument he

would have presented at a hearing in either the motion for a new

trial or the state habeas action, or how the inability to do so

prejudiced the results of those proceedings.

41 Moussa’s entitlement to a hearing in state court is a

matter of state law, and his federal due process rights are not

triggered in the absence of a showing that the denial of a

hearing deprived Moussa of the ability to submit argument or

evidence he otherwise had a right to submit. See Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991). State law errors are not

grounds for habeas relief under 28 U.S.C. § 2254. Id. Because

Claims 9 and 12 are not cognizable on federal habeas review,

summary judgment is granted as to those claims.

IV. Certificate of Appealability

The Rules Governing Section 2254 Proceedings (Ҥ 2254

Rules”) require the court to “issue or deny a certificate of

appealability when it enters a final order adverse to the

party.” § 2254 Rule 11(a). The court will issue the

certificate “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). Moussa has failed to make such a showing.

Accordingly, the court declines to issue a certificate of

appealability in this case.

Conclusion

For the foregoing reasons, Respondent’s two-part motion for

summary judgment (doc. nos. 34-35) is GRANTED, and Moussa’s

42 habeas petition (doc. nos. 1, 24, and 25) is DENIED. The court

declines to issue a certificate of appealability.

SO ORDERED.

__________________________ Landya B. McCafferty United States District Judge March 14, 2016

cc: Saad Moussa, pro se Elizabeth C. Woodcock, Esq.