Roberts v. NH Dept of Corrections

2009 DNH 138

• Court: District Court, D. New Hampshire
• Decided: September 15, 2009
• Docket: 09-CV-159-PB
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Gary Roberts

v. Case No. 09-cv-159-PB Opinion No. 2009 DNH 138 Commissioner, NH Department of Corrections

O R D E R

Gary Roberts has filed a habeas corpus petition challenging

his state court conviction. The Warden has responded with a

motion for summary judgment. For the reasons set forth inthis

Order, I grant the Warden's motion.

Roberts initially objects to the fact that the Warden filed

a trial transcript with the court but did not provide him with a

copy. He also faults the Warden for seeking summary judgment

without producing a transcript of the evidentiary hearing that

the state court relied on in rejecting his ineffective assistance

of counsel claims. Neither argument has merit.

Although the Warden did not provide Roberts with a copy of

the trial transcript when the motion for summary judgment was

filed, it is evident from Roberts' own summary judgment motion

that he has access to the trial transcript. Thus, this claimed error is inconsequential.

Roberts' challenge to the Warden's failure to produce a

transcript of the ineffective assistance of counsel hearing is

equally unavailing. The state court judge who ruled on the

ineffective assistance of counsel issue prepared a detailed

written decision making findings and rulings on Roberts'

ineffective assistance of counsel claims. Roberts has failed to

offer any credible arguments that call the court's fact finding

into question. Even if, as he claims, the transcript would

reveal a conflict between his attorney's testimony and the

testimony of the witnesses that counsel allegedly failed to

adequately investigate, (See Petr.'s Mot. at 7), I would not be

free to disregard the state court's reasonable resolution of this

alleged conflict. Nor would any alleged admission by counsel at

the hearing that she failed to cross-examine the state's rebuttal

witness (See Petr.'s Mot. at 12) permit me to disregard the state

court's decision to credit defense counsel's testimony. As these

are the only specific instances in which Roberts claims the

hearing transcript could support his petition, I need not order a

transcript before ruling on the Warden's summary judgment motion.

In evaluating the merits of Roberts' habeas corpus petition,

I employ the familiar standards of review required by the Anti-

- 2 - Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2254 and

the familiar Strickland test for ineffective assistance of

counsel claims. Strickland v. Washington. 466 U.S. 668, 687

(1984); Sleeper v. Spencer. 510 F.3d 32, 37-38 (1st Cir. 2007).

Roberts argues that I should disregard the trial court's

rejection of his ineffective assistance of counsel claims because

the court's rulings are based on an unreasonable determination of

the facts. As the First Circuit explained in Sleeper, findings

of fact by a state court are presumed to be correct and this

presumption can be overcome only by "clear and convincing

evidence to the contrary." Id. Here, even if I credit

everything Roberts has to say about the state court hearing on

his ineffective assistance of counsel claims, he does not come

close to meeting this standard. As I have explained, the only

two instances in which Roberts has posited a conflict between the

state court's factual findings and the evidentiary record do not

call into question the state court's ultimate rulings. Thus,

they do not provide Roberts with a legitimate basis for his

petition.

Having carefully reviewed the pleadings, the state court's

rulings on the ineffective assistance claim and the relevant

portions of the trial transcript, I am convinced that Roberts'

- 3 - ineffective assistance of counsel claims were correctly rejected

by the trial court. Accordingly, I grant the Warden's motion for

summary judgment (Doc. No. 6) and deny Roberts' cross-motion for

summary judgment (Doc. No. 7). The clerk is instructed to enter

judgment for the defendant and close the case.

SO ORDERED.

/s/Paul Barbadoro____________ Paul Barbadoro United States District Judge

September 15, 2009

cc: Gary Roberts, pro se Elizabeth Woodcock, Esq.

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