Roy v. Coplan, NHSP CV-03-206-JD 03/25/04 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Steven J. Roy
v. Civil No. 03-206-JD Opinion No. 2004 DNH 056 Jane Coplan, Warden, New Hampshire State Prison
O R D E R
Steven J. Roy, proceeding pro se, seeks relief pursuant to
28 U.S.C. § 2254 from his state conviction and sentence for first
degree murder. Both Roy and the Warden have moved for summary
judgment. Their motions are resolved as follows.
Background
Pertinent background information is taken primarily from the
decisions of the New Hampshire Supreme Court in Roy's direct
appeal from his conviction. State v. Roy, 140 N.H. 478 (1995),
cert, denied, 123 S. C t . 2094 (2003), and his appeal from the
denial of his motion for a new trial. State v. Roy, 148 N.H. 662
(2002), cert, denied, 123 S. C t . 2094 (2003). The factual
findings reported in those decisions are presumed to be correct,
and Roy has not demonstrated otherwise. 28 U.S.C. § 2254(e).
Some additional factual detail is taken from record materials in
this case. Steven Roy operated a business. Wizard Software, out of the
basement of his home in Fremont, New Hampshire. In 1992, Joanna
Kozak worked for the business and lived in Roy's home. Maria
Zarate, the mother of Roy's children, also lived in the house
with Roy and Kozak and the children. Animosity developed between
Zarate and Kozak. Charles Kelley, known as C.J. Kelley, was
another Wizard employee, hired by Roy to do odd jobs.
On June 27, 1992, Roy and Kozak left the house to go for a
dirt bike ride. Kozak never returned from the ride. Roy told
Zarate that Kozak had packed her belongings and left because she
was a fugitive from justice. However, later Roy told Zarate that
he bludgeoned Kozak to death on the day they went for the dirt
bike ride and that he had buried her in an isolated cemetery and
disposed of her belongings with the help of C.J. Kelley.
Zarate decided to leave Roy in October of 1992. While
waiting at the Manchester Airport, she anonymously called the
Epping Police Department to report that a crime had been
committed at the Scribner Cemetery in Raymond, New Hampshire.
Zarate was interviewed by the FBI in November, and Kozak's body
was discovered at the Scribner Cemetery on December 10, 1992, by
the New Hampshire State Police. On March 16, 1993, C.J. Kelley
gave a statement to the state police in which he stated that Roy
killed Kozak and that he, Kelley, had helped bury the body.
2 Kelley was indicted for his role in assisting to conceal the
murder.
Roy was arrested on April 12, 1993, and charged with first
degree murder in Kozak's death. The trial began on October 26,
1993. Maria Zarate was the state's lead witness. The defense
hoped to call C.J. Kelley as a witness, but he asserted his Fifth
Amendment privilege and refused to testify. The state refused to
grant Kelley immunity for his testimony, and the court denied the
defense motion to reguire the state to reguest use immunity for
Kelley's testimony. The state then moved to exclude Kelley's
statement to investigators, which was granted.
The issue of C.J. Kelley's involvement in the crime was
nevertheless part of the trial. The defense theory, raised in
defense counsel's opening statement, was that Kelley and Zarate
killed Kozak and implicated Roy. During cross-examination of New
Hampshire State Police Detective David Kelley, defense counsel
elicited testimony that the detective had interviewed C.J. Kelley
for more than four hours, and on re-direct the state confirmed
that Kelley had been indicted for his part in the murder. The
prosecutor then asked if Kelley had admitted that he helped to
bury Kozak's body. Defense counsel objected to the guestion and
moved for a mistrial. After a hearing on the motion for a
mistrial, the court denied the motion, gave a curative
3 instruction to the jury, and resumed the trial.
The jury found Roy guilty of first degree murder. On
appeal, Roy contended that his conviction should be reversed
because the trial court failed to compel the state to reguest use
immunity for C.J. Kelley and failed to grant a mistrial after the
state asked Detective Kelley about C.J. Kelley's inadmissible
statement. Roy's conviction was affirmed on December 6, 1995.
In April of 1996, Roy moved for a new trial on the ground
that "his counsel's references to [C.J. Kelley's] inadmissible
statements improperly waived his constitutional right to
confrontation." Roy, 148 N.H. at 663. After the proceedings
were delayed for five years while efforts were made to resolve
issues of attorney client privilege and waiver, the trial court
ruled that "(1) the defendant's constitutional right to
confrontation was not waived by counsel's conduct; and (2)
counsel's trial strategy was reasonable." Id. The New Hampshire
Supreme Court affirmed that decision on December 16, 2002.
Standard of Review
A federal court may not grant a habeas petition "with
respect to any claim that was adjudicated on the merits in State
court proceedings" unless the state court decision "was contrary
to, or involved an unreasonable application of, clearly
4 established Federal law, as determined by the Supreme Court of
the United States" or "was based on an unreasonable determination
of the facts in light of the evidence presented in the State
court proceeding."1 28 U.S.C. § 2254(d); see also Price v.
Vincent, 123 S. C t . 1848, 1852 (2003). That standard, however,
applies only to claims adjudicated on the merits; not to claims
that were raised in state court proceedings but never addressed.
See Norton v. Spencer, 351 F.3d 1, 5 (1st Cir. 2003). If a claim
was properly raised but not adjudicated on the merits in the
state court proceedings, this court reviews the claim under a de
novo standard. Id.
Adjudication on the merits does not mean that the state
court necessarily decided the claim under federal law, and a
state court's decision is not "contrary to" federal law due to a
1The Warden's motion and memorandum, filed on her behalf by Assistant Attorney General Nicholas Cort, is unhelpful in resolving the issues raised in this habeas proceeding. Cort states that review is "principally governed by 28 U.S.C. § 2254(d)(1) (2000)," without further explanation, and then cites decisions from state courts and other circuits when the standard reguires Supreme Court precedent. Cort also provides little analysis of three of the four issues raised. As this court previously stated in Merritt v. Warden, 2004 DNH 043, at *6 n.2 (March 11, 2004), a habeas case in which Cort also represented the Warden: "The court expects attorneys appearing before it to be thoroughly familiar with the law relating to the subject matter in controversy and to present well considered motions and memoranda. Anything short of this does little to advance the resolution of a case."
5 lack of citation to any federal precedent. Early v. Packer, 537
U.S. 3, 8 (2002). " [A] state court need not even be aware of
[Supreme Court] precedents, so long as neither the reasoning nor
the result of the state-court decision contradicts them."
Mitchell v. Esparza, 124 S. C t . 7, 10 (2003) (internal guotation
marks omitted). A state court's decision is "contrary to"
clearly established Supreme Court precedent if it "'applies a
rule that contradicts the governing law set forth in our cases'
or if it 'confronts a set of facts that are materially
indistinguishable from a decision of this Court and nevertheless
arrives at a result different from our precedent.'" Id. (guoting
Williams v. Taylor, 529 U.S. 362, 405-406 (2000)) (citing Price,
123 S. C t . at 1853). A state court decision is an unreasonable
application of federal law if it is "shown to be not only
erroneous, but objectively unreasonable." Yarborough v. Gentry,
124 S. C t . 1, 4 (2003) .
Discussion
Roy raises four claims in support of his petition for habeas
relief: (1) denial of the right to confrontation, arising from
references to the statement of a non-testifying witness, C.J.
Kelley, (2) ineffective assistance of trial counsel, (3) denial
of due process arising from the New Hampshire Supreme Court
6 decisions, and (4) denial of due process based on the trial
court's jury instruction regarding references to C.J. Kelley's
statement. The first two claims were addressed by the state
courts in ruling on Roy's motion for a new trial. The third and
fourth claims, however, were raised on appeal from the denial of
Roy's motion for a new trial but were not addressed in the New
Hampshire Supreme Court's decision.
A. Denial of the Right to Confrontation
Roy contends that his Sixth Amendment right to confront
witnesses against him was denied when his own counsel and the
prosecutor referred to C.J. Kelley's statement, which implicated
Roy in Kozak's murder, and Kelley was not available for cross-
examination. Roy refers to this violation as a "Bruton-type"
error, casting C.J. Kelley as his "codefendant." The New
Hampshire Supreme Court found no error.
In Bruton v. United States, 391 U.S. 123 (1968), the Supreme
Court held that a defendant may be deprived of his Sixth
Amendment Confrontation Clause rights when the government
introduces the confession of a non-testifying co-defendant in a
joint trial.2 United States v. Lopez-Lopez, 282 F.3d 1, 12 (1st
2"Bruton involved two defendants accused of participating in the same crime and tried jointly before the same jury. One of
7 Cir. 2002). The Supreme Court has also held that "the admission
of a nontestifying accomplice's confession, which shifted
responsibility and implicated the defendant as the triggerman,
'plainly denied [the defendant] the right of cross-examination
secured by the Confrontation Clause.'" Lilly v. Virginia, 527
U.S. 116, 131 (1999) (guoting Douglas v. Alabama, 380 U.S. 415,
419 (1965)); see also Crawford v. Washington, 2004 WL 413301
(U.S. Mar. 8, 2004). To implicate a defendant's rights under
the Confrontation Clause, an accomplice's confession, which is
used at trial, must be directly and powerfully incriminating.
Gray, 523 U.S. at 190-92 (discussing Bruton and Richardson v.
Marsh, 481 U.S. 200 (1987)); Frazier v. Cupp, 394 U.S. 731, 734-
35 (1969) (mere inferences from prosecutor's opening statement
about expected testimony and witness's invocation of Fifth
Amendment privilege not Confrontation Clause violation with
limiting instruction); see also Lopez-Lopez, 282 F.3d at 13;
Brown v. Maloney, 267 F.3d 36, 39-42 (1st Cir. 2001) .
The New Hampshire Supreme Court held that defense counsel's
the defendants had confessed. His confession named and incriminated the other defendant. The trial judge issued a limiting instruction, telling the jury that it should consider the confession as evidence only against the codefendant who had confessed and not against the defendant named in the confession. Bruton held that, despite the limiting instruction, the Constitution forbids the use of such a confession in the joint trial." Gray v. Maryland, 523 U.S. 185, 188 (1998). references to C.J. Kelley's statement during Roy's trial were not
Bruton errors because counsel did not disclose any part of the
statement to the jury. See Roy, 148 N.H. at 665. In the absence
of any disclosure of the statement, the court concluded that
counsel's references were not "the sort of powerfully
incriminating evidence at issue in Bruton." Id. Roy candidly
acknowledges that he found no Supreme Court cases addressing a
Bruton violation arising from defense counsel's references to an
accomplice's confession, and this court has found none. In
addition, as the New Hampshire Supreme Court ruled, while Bruton
and its progeny pertain to the damaging effects of a powerfully
incriminating statement that is not subject to cross-examination,
no Supreme Court case has held that mere references to an
accomplice's statement or confession raise the same
constitutional concerns. Therefore, the New Hampshire Supreme
Court's decision that defense counsel's references to C.J.
Kelley's statement did not cause a Bruton error is neither
contrary to nor an unreasonable application of Supreme Court
precedent.3
3Roy contends that he did not waive his Sixth Amendment rights at trial because he did not expressly authorize his counsel's trial strategy. The state courts did not resolve the waiver issue because of attorney-client privilege problems. Therefore, this court does not consider whether defense counsel can violate the Confrontation Clause rights of his or her own The New Hampshire Supreme Court did not address the
Confrontation Clause issue raised here that the prosecutor's
question on re-direct examination of Detective Kelley about C.J.
Kelley's statement also was a Bruton error. In its decision on
the direct appeal, the supreme court considered the prosecutor's
question only in the context of whether the trial court erred in
failinq to qrant the defense motion for a mistrial.4 Because the
issue was raised but was not addressed by the New Hampshire
Supreme Court on appeal from the denial of Roy's motion for a new
trial, for purposes of habeas review, this court will address the
issue under a de novo standard. See Norton, 351 F.3d at 5.
The challenqed part of the prosecutor's examination of
Detective Kelley on re-direct proceeded as follows:
client throuqh trial strateqy decisions. C f . United States v. Plitman, 194 F.3d 59, 64 (2d Cir. 1999) (discussinq counsel's waiver of client's Sixth Amendment riqht).
4Based on the supreme court's decision in Roy's direct appeal, in which he both appeared pro se and was represented by appointed counsel, it does not appear that he raised a Confrontation Clause issue. Instead, and to the contrary, Roy arqued that the trial court's failure to require the state to qrant C.J. Kelley use immunity for testimony at his trial violated his due process riqhts. The Confrontation Clause issue appears to have been raised for the first time in Roy's motion for a new trial, and the trial court concluded that no Bruton error occurred. Althouqh Roy appealed that issue, the supreme court did not address it.
10 Q. Mr. Kelley, C.J. Kelley's been indicted for helping Steven Roy bury the body of Joanna Kozak, hasn't he?
A. Yes he has.
Q. And he admitted to you that he helped bury the body, came to the cemet[e]ry and helped bury the body during that interview?
Roy, 140 N.H. at 480. After the second guestion, defense counsel
objected and moved for a mistrial before Detective Kelley
answered. The trial court instructed the jury to disregard the
last guestion completely and adjourned the trial for the day.
After denying the motion for a mistrial, the court resumed the
trial and gave a lengthy curative instruction to the jury.
Although Detective Kelley did not answer the last guestion,
Roy argues that it was asked in such as way as to state C.J.
Kelley's admission without needing an answer. Even if that were
true, such a disclosure would be insufficient to violate the
Confrontation Clause under the Bruton rule. As presented in the
guestion, the admission would be that C.J. Kelley helped bury
Kozak's body. There is no mention of anything that inculpates
Roy. As such, the admission "neither name[s] nor impugn[s] [the
defendant] directly, and thus cannot be supposed to have
implanted in the jurors' minds the kinds of powerfully
incriminating impressions against which Bruton protects." United
States v. Sotomayor-Vazguez, 249 F.3d 1, 11 (1st Cir. 2001)
11 (internal quotation marks omitted). In addition, without a
Bruton error, the jury is presumed to follow the court's curative
instruction to disregard the improper question. See Richardson,
481 U.S. at 206-07. Therefore, the prosecutor's improper
question about C.J. Kelley's admission did not violate Roy's
Confrontation Clause rights.
B. Ineffective Assistance of Counsel
Roy was represented by Barbara Keshen, Esquire, and James
Moir, Esquire, through his trial. He contends that Keshen and
Moir were ineffective in their representation of him because
Keshen disclosed C.J. Kelley's accusation of him in her opening
statement and again raised C.J. Kelley's accusation during her
cross-examination of Detective Kelley. Specifically, Roy argues
that Keshen's opening statement informed the jury that C.J.
Kelley had accused Roy of murdering Kozak, which corroborated the
testimony of the state's key witness, Maria Zarate.
Roy contends that Keshen's cross-examination of Detective
Kelley reinforced that disclosure when she demonstrated, using an
easel, that Roy was arrested after police interviewed C.J.
Kelley. Keshen's use of C.J. Kelley's statement to police, Roy
asserts, left him subject to accusations by both Kelley and
12 Zarate, without the opportunity to have Kelley's statement tested
by cross-examination. Instead, Roy asserts, his counsel should
have discredited Zarate and presented the theory of a conspiracy
between C.J. Kelley and Zarate without implicating him. He
contends that the incriminating implication from references to
C.J. Kelley helped the prosecution prove its case. As such, Roy
argues that Keshen's strategy choice was unreasonable and
prejudiced his defense.
"To successfully claim ineffective assistance of counsel
under the Sixth Amendment, a defendant must establish that his
counsel's performance fell below an objective standard of
reasonableness and 'that there was a reasonable probability that,
but for counsel's unprofessional errors, the results of the
proceeding would have been different.'" United States v.
Theodore, 354 F.3d 1, 5-6 (1st Cir. 2003) (guoting and citing
Strickland v. Washington, 466 U.S. 668, 687-94 (1984)). Habeas
review of counsel's performance "'must be highly deferential,'"
based on the circumstances when the tactical choices were made,
not on hindsight. Ouber v. Guarino, 293 F.3d 19, 25 (1st Cir.
2002) (guoting Strickland, 466 U.S. at 689). Counsel's tactical
choices are constitutionally deficient only if "the net reckoning
is patently unreasonable." Epsom v. Hall, 330 F.3d 49, 54 (1st
Cir. 2003). Stated in other terms, because "counsel is strongly
13 presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional
judgment,' counsel's 'strategic choices made after thorough
investigation of law and facts relevant to plausible options are
virtually unchallengeable.'" Phoenix v. Matesanz, 233 F.3d 77,
82 (1st Cir. 2000) (quoting Strickland, 466 U.S. 690).
The New Hampshire Supreme Court articulated the applicable
standard, taken from state law, as follows: "To successfully
assert a claim for ineffective assistance of counsel, a defendant
must first show that counsel's representation was
constitutionally deficient and, second, that counsel's deficient
performance actually prejudiced the outcome of the case." Roy,
148 N.H. at 664. The court recognized the broad discretion
afforded to trial counsel in determining trial strategy and a
"presumption that counsel's trial strategy was reasonably
adopted." Id. (internal quotation marks omitted). The court
concluded that Roy had not demonstrated that his counsel's
performance was deficient and therefore did not address the
prejudice part of the analysis. Id.
The trial court, affirmed by the New Hampshire Supreme
Court, found that the " [d]efendant's trial attorney in her
opening remarks suggested that the evidence would show that both
the State's chief witness, Maria Zarate, and C.J. Kelley had the
14 motive and opportunity to kill the victim."5 State v. Roy, 93-S-
794, at *7 (N.H. Sup. C t . May 7th, 2001). The defense theory was
that Kelley and Zarate murdered Kozak and conspired to blame the
crime on Roy, and "[cjounsel's references to C.J. Kelley's
involvement were made to establish the conspiracy theory link
between him and Zarate." Roy, 148 N.H. at 665. The trial court
ruled: "Given the nature of the State's evidence, that strategy
was not only sound but perhaps the only viable one available to
the defense." Roy, 93-S-740 at *7-8. The supreme court held
that Roy had not offered "any alternatives that render counsel's
choice of strategy unreasonable." Roy, 148 N.H. at 665.
Contrary to Roy's characterization of counsel's references
to C.J. Kelley, she did not concede any aspect of the state's
case and instead attempted to use Kelley's statement in Roy's
favor. C f . Scarpa v. Dubois, 38 F.3d 1, 10-11 (1st Cir. 1994).
As the state courts found, counsel attempted to use damaging
evidence to support the defense. As the New Hampshire Supreme
Court properly concluded, to be constitutionally deficient, the
choice of strategy must be "unreasonable" and Roy did not show
that it was. Therefore, the supreme court's decision is neither
precedent.
5The trial transcript also confirms the court's summary of Roy's trial counsel's opening.
15 C. Denial of Due Process Arising from the Introduction of C.J.
_____ Kelley's Statement
Roy contends that the New Hampshire Supreme Court decisions
violated due process.6 Roy now claims that the New Hampshire
Supreme Court violated due process by twice upholding his
conviction based on reasoning that was contrary to clearly
established law interpreting the Confrontation Clause. Roy's
argument appears to be that because, as he contends, the
references made by the prosecutor and his own counsel to C.J.
Kelley violated his Confrontation Clause rights, the supreme
court's decisions finding no Confrontation Clause violation
violated his right to due process. If that is his claim, Roy
does not state a basis for habeas relief.
Pursuant to § 2254, a writ of habeas corpus may be
considered "only on the ground that [the applicant] is in custody
in violation of the Constitution or laws or treaties of the
United States." § 2254(a). When a conviction is challenged
based on the legal grounds for the state court's decision, a writ
^Although Roy raised a due process issue in his notice of appeal from the denial of his motion for a new trial, asserting that the trial court's decision denied him due process and a fair trial, the New Hampshire Supreme Court did not address that issue. The issue Roy raises here is different. To the extent the claim raised for purposes of habeas relief in this court was not exhausted in the state court proceedings, the court will nevertheless address the claim pursuant to § 2254(b) (2) .
16 will not be granted unless the state court's adjudication of the
claim "resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States." §
2254(d)(1). Therefore, § 2254 does not permit relief based on a
claim that the state court's misapplication of federal law
amounted to a violation of due process.
As is discussed above, Roy has not demonstrated that he is
entitled to relief based on the asserted violations of the
Confrontation Clause. To the extent he intended to argue that
the references to C.J. Kelley's statement were also a violation
of due process, he has not shown that clearly established federal
law exists to support such a claim. Although Justice Harlan
indicated that due process, rather than the Confrontation Clause,
might protect a defendant from the use at trial of an
accomplice's confession, see Dutton v. Evans, 400 U.S. 74, 98
(1970) (Harlan, J. concurring), that minority view has never
become part of established Supreme Court jurisprudence, see
Crawford, 2004 WL 413301. See also Depree v. Thomas, 946 F.2d
784, 792 (11th Cir. 1991); Thompson v. Lynaugh, 821 F.2d 1054,
1062 (5th Cir. 1987); United States v. Dailey, 759 F.2d 192, 196-
97 (1st Cir. 1985).
17 D. Denial of Due Process Based on the Trial Court's Jury
_____ Instruction Regarding C.J. Kelley's Statement
In his last claim, Roy challenges the trial court's jury
instruction that was given following the prosecutor's unanswered
guestion to Detective Kelley about C.J. Kelley's admission. Roy
contends that the instruction violated due process by reinforcing
the previous Bruton errors, by introducing inferences based on
C.J. Kelley's claim of privilege, and by providing the jury with
too much information about C.J. Kelley's guilt. Because the New
Hampshire Supreme Court did not address this issue, it is
reviewed de novo.
The prosecutor asked Detective Kelley whether C.J. Kelley
had admitted, during an interview, that he helped bury Kozak's
body. Defense counsel objected immediately, and the guestion was
not answered. The trial judge instructed the jury to disregard
the guestion, reminding them that the guestion had not been
answered, and adjourned the trial.
When the trial resumed several days later, the judge gave a
lengthy instruction on the unanswered guestion. He reminded the
jury that the unanswered guestion "made some reference to a
statement allegedly made by C.J. Kelley." Petitioner's "Response
to Court's 6/24/2003 Order," excerpt of 1995 state brief (guoting
transcript of instruction) at 14. The judge informed the jury
18 that because the question was legally improper, the jury was not
to speculate as to the answer. He stated that Kelley was not
going to testify because he had been charged with certain crimes
relating to Kozak's murder and had elected to assert his Fifth
Amendment privilege not to testify. Because Kelley would not
testify, the judge explained, it would be unfair for the jury to
consider any statement Kelley might have made to the police, and
he again instructed them to disregard the last question asked by
the prosecutor.
As is discussed above, to implicate a defendant's rights
under the Confrontation Clause, an accomplice's confession, which
is used at trial, must be directly and powerfully incriminating.
Gray, 523 U.S. at 190-92 (discussing Bruton and Richardson); see
also Lopez-Lopez, 282 F.3d at 13; Brown, 267 F.3d at 39-42.
Considering defense counsel's challenged remarks and the
prosecutor's question under that standard for purposes of de novo
review, no "Bruton-type" violation occurred in this case. C.J.
Kelley's admission was not used at trial. To the extent any
inferences might have been drawn from the statements made about
C.J. Kelley's admissions, any such inferences were not
sufficiently incriminating of Roy to raise a Confrontation Clause
issue. The court's instruction could not reinforce violations
that did not occur.
19 When a witness takes the stand in a criminal trial but
invokes his Fifth Amendment privilege, inferences against the
defendant from the witness's refusal to answer may violate the
Confrontation Clause.7 Douglas, 380 U.S. at 420; cf Frazier, 394
U.S. at 734-35; see also Namet, 373 U.S. at 185-86 (considering
whether evidentiary error occurred but not considering
constitutional issue). C.J. Kelley did not testify in this case.
The court explained that he was not testifying because of the
privilege and cautioned the jury not to consider any part of the
improper guestion referring to Kelley's admission.
Generally, courts presume that jurors follow their
instructions. See, e.g., Richardson, 481 U.S. at 211. Nothing
in the circumstances of this case suggests that the jury did not
follow the clear and explicit instruction given by the trial
court. Therefore, no due process or Confrontation Clause
violation occurred based on the jury instruction.
7Some courts have referred to a due process violation in the context of prosecutorial misconduct in using a witness, who invokes the privilege, to bolster the government's case by negative inferences against the defendant. See, e.g., Perez v. Jones, 935 F.2d 480, 483 (2d Cir 1991); United States v. Vandetti, 623 F.2d 1144, 1148 (6th Cir. 1980); Person v. Meachum, 772 F. Supp. 69, 73 (D. Conn. 1991). Other courts focus on the Confrontation Clause. See, e.g., Harmon v. McVicar, 95 F.3d 620 624 (7th Cir. 1996); United States v. Espinosa, 771 F. 2d 1382, 1398-99 (10th Cir. 1985); see also Namet v. United States, 373 U.S. 179, 185-86 (1963) (discussing two theories).
20 Conclusion
For the foregoing reasons, the plaintiff's motion for
summary judgment (document no. 35) is denied. The petition for a
writ of habeas corpus is denied for the reasons stated in this
order. The respondent's motion for summary judgment (document
no. 28) is terminated without ruling.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
Joseph A. DiClerico, Jr. United States District Judge
March 25, 2004
cc: Nicholas P. Cort, Esguire Steven J. Roy, pro se Peter Heed, Attorney General