Smart v . NYS DOC CV-99-179-M 09/30/02 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Pamela Smart, Petitioner
v. Civil N o . 99-179-M Opinion N o . 2002 DNH 174 Glenn S . Goord, New York State Department of Correctional Services, Respondent
O R D E R
Petitioner was convicted in the New Hampshire Superior Court
as an accomplice to the first degree murder of her husband,
conspiracy to commit that murder, and witness tampering. She
seeks habeas corpus relief, asserting violations of her Fifth,
Sixth, and Fourteenth Amendment rights, denial of due process and
a fair trial, and violation of her Eighth Amendment protection
from cruel and unusual punishment. Respondent counters that
petitioner is entitled to no relief on any of her claims.
Procedural History
Petitioner was convicted on March 2 2 , 1991, following a 23-
day jury trial. She filed post-trial motions for relief in the New Hampshire Superior Court, and pursued a direct appeal of her
convictions to the New Hampshire Supreme Court on several
grounds, some of which are reasserted in this habeas petition.
The New Hampshire Supreme Court affirmed the petitioner’s
conviction in a published opinion. See State v . Smart, 136 N.H.
639 (1993). Four years later, petitioner filed a state habeas
petition in the Superior Court, raising (and exhausting) the
claims presented here. The state habeas court denied relief,
and, on appeal from that decision, the New Hampshire Supreme
Court summarily affirmed. Petitioner then timely filed this
petition for federal habeas relief.1 She is currently serving a
mandatory sentence of life imprisonment, without the possibility
of parole.
Standard of Review
Since passage of the Anti-Terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), the power to
1 The petition was initially filed in the United States District Court for the Southern District of New York, where petitioner is incarcerated pursuant to an agreement between the states of New Hampshire and New York. The case was transferred here as petitioner is in the custody of the State of New Hampshire
2 grant federal habeas relief to a state prisoner with respect to
claims adjudicated on the merits in state court has been
substantially limited. A federal court may not disturb a state
conviction unless the state court’s adjudication “resulted in a
decision that was contrary t o , or involved an unreasonable
application o f , clearly established Federal law, as determined by
the Supreme Court of the Unite States,” at the time the state
conviction became final. 28 U.S.C. § 2254(d)(1). See
also Williams v . Taylor, 529 U.S. 3 6 2 , 399 (2000).
Additionally, if the state court resolved a petitioner’s
claim on an “adequate and independent state ground,” a federal
court may only disturb that ruling if the petitioner shows “cause
. . . and actual prejudice as a result of the alleged violation
of federal law, or demonstrate[s] that failure to consider the
claims will result in a fundamental miscarriage of justice.”
Coleman v . Thompson, 501 U.S. 7 2 2 , 750 (1991). See also Gunter
v . Maloney, 291 F.3d 74 (1st Cir. 2002). “Cause” is particularly
relevant when the independent state ground is petitioner’s
procedural default (i.e., the failure to raise the issue on
direct appeal). In that case, petitioner must provide a reason
3 for the default that is external to the petitioner. See Coleman,
501 U.S. at 7 5 0 , 752. The “fundamental miscarriage of justice”
test can be met by showing “actual innocence” or “a fair
probability that, in light of all the evidence . . . the trier of
the facts would have entertained a reasonable doubt of [her]
guilt.” Sawyer v . Whitley, 505 U.S. 333, 339 (1992) (quoting
Kuhlmann v . Wilson, 477 U.S. 436, 455, n.17 (1986)).
Discussion
This petition asserts five grounds upon which relief should
be granted. Each was fully presented to the New Hampshire
Superior Court, and, subsequently, to the New Hampshire Supreme
Court, thereby satisfying the requirement that federal review be
preceded by the exhaustion of available state remedies. See 28
U.S.C. §§ 2254(b) and ( c ) .
Asserted Grounds for Relief
Petitioner first asserts that she is entitled to a new trial
because on three occasions the trial judge engaged in ex parte
communications with members of the jury, in violation of her
constitutional right to be present at all critical stages of the
4 trial, and her right to be tried by a fair and impartial jury
(Ground 1 ) . The first challenged communication took place when
the trial judge informed the jury, during the afternoon of the
first day of deliberations, that they would have to be
sequestered, beginning the next night, if a verdict was not
reached. The second communication involves the judge’s in
camera, on the record, questioning of a juror about alleged juror
misconduct. The final communication took place after petitioner
was convicted and also involved the judge’s in camera, on the
record, questioning of a (different) juror about alleged
misconduct. Petitioner argues that her presence on those
occasions could not be waived, and her absence undermines her
conviction.
Petitioner also says she is entitled to a new trial because
the presiding judge violated her Fifth and Sixth Amendment rights
to due process and to confront witnesses when he failed to allow
her to re-call co-defendants who had previously been called as
witnesses by the prosecution (Ground 2 ) . After the witnesses had
been excused, petitioner discovered letters written by them while
they were incarcerated. She claims the letters demonstrated “a
5 total disdain for the criminal trial process and prove that the
witnesses had an opportunity to collaborate on their testimony.”
Pet. at 2 2 . Accordingly, she says, she should have been
permitted to re-call and cross-examine those witnesses regarding
the content of the letters, presumably to undermine their
credibility and establish fabrication.
Petitioner’s third ground for habeas relief is that the
State failed to provide her with exculpatory evidence in its
possession, thereby violating her right to due process (Ground
3). That allegation arises from petitioner’s belief that one of
her co-defendants, who testified against her, was provided with
an additional, undisclosed, incentive to testify, which should
have been revealed under the mandate of Brady v . Maryland, 373
U.S. 83 (1963). See also Giglio v . United States, 405 U.S. 150
(1972)(impeachment evidence is exculpatory within the meaning of
Brady and, if material, must be disclosed).
Next, petitioner claims that extensive publicity surrounding
the investigation leading to her indictment, and her trial, as
well as the disruptive presence of members of the media, both in
6 the courtroom and around the courthouse, all combined to deprive
her of a fair trial (Ground 4 ) . Petitioner argues that her
rights to both an impartial jury and fair trial were violated
because the trial judge denied her motion for change of venue o r ,
in the alternative, failed to sua sponte order a continuance,
given the extensive media coverage of her case. Drawing
comparisons between her trial and that considered in Sheppard v .
Maxwell, 384 U.S. 333 (1966), petitioner says the trial
atmosphere was so chaotic due to the presence and behavior of the
media that she could not possibly have received a fair trial.
Finally, petitioner argues that the sentence imposed – life
in prison without the possibility of parole – violates the Eighth
Amendment’s prohibition against cruel and unusual punishment,
since it is disproportionally severe in relation to the crimes of
conviction. She points to the fact that she was only 23 years
old when sentenced, and that her co-conspirators, who actually
carried out the murder of her husband, received substantially
less severe sentences (Ground 5 ) .
7 Analysis
Opposing habeas relief, Respondent appropriately begins by
pointing to the earlier decisions of the New Hampshire Supreme
Court and state habeas court. The state court found Grounds 1
(ex parte communication) and 3 (failure to disclose impeachment
evidence) to have been procedurally defaulted. Since a
procedural default constitutes an “adequate and independent state
ground” upon which to deny relief, federal review of those two
claims is available only upon a showing of both cause for the
default and prejudice. Alternatively, petitioner must
demonstrate that the failure to review the claims she advances
will result in a fundamental miscarriage of justice. See
Williams v . Taylor, supra. Respondent says petitioner has not
made the requisite showing and i s , therefore, not entitled to
federal review of those claims. Additionally, respondent argues
that even if the court considers the merits of those claims,
petitioner would still be entitled to no relief, because her
constitutional rights were not violated by any of the three
communications or by the alleged withholding of information.
8 The state habeas court declined to consider the merits of
Grounds 2 (deprivation of rights of confrontation and cross-
examination related to recalling witnesses) and 4 (deprivation of
the right to an impartial jury and fair trial due to extensive
publicity) because they had already been fully briefed,
litigated, and resolved by the New Hampshire Supreme Court on
direct appeal. Respondent argues that petitioner is not entitled
to federal relief because the state courts’ collective rulings on
those issues were neither “contrary to,” nor did they involve “an
unreasonable application o f , clearly established Federal law, as
determined by the United States Supreme Court.” Id.
The state courts also rejected Ground 5 (unconstitutionality
of a life sentence), finding life in prison without the
possibility of parole to be proportional to the crimes of which
petitioner was convicted – orchestrating the deliberate murder of
her husband by students in the high school in which she taught.
Respondent again argues that petitioner is not entitled to relief
because the state courts’ findings were not “contrary to,” and
did not involve “an unreasonable application o f , clearly
9 established Federal law, as determined by the United States
Supreme Court.” See id. Respondent is correct.
I. Grounds 1 and 3 (Ex Parte Communication / Failure to Disclose Impeachment Material)
That a claim is procedurally defaulted constitutes an
“adequate and independent state ground” for denying relief. See
Coleman, 501 U.S. at 758. Accordingly, this court cannot grant
relief on Ground 1 or 3 unless petitioner first establishes both
cause for her procedural default, and actual prejudice from the
alleged violation of federal law, o r , unless petitioner
demonstrates that, based on the record as a whole, there is a
fair probability that, absent the alleged violations, the finders
of fact (here, the jury) would have entertained a reasonable
doubt as to her guilt. See Id. at 750.
The state habeas court determined that, with regard to the
trial judge’s communications with the jury, petitioner failed to
contemporaneously object to the first two challenged
communications. Relying upon applicable New Hampshire law, the
court found that failure to interpose contemporaneous objections
barred petitioner from pursuing those claims on either direct
10 appeal or collateral review. The court further found that while
the third communication was addressed in a motion to the trial
court seeking a new trial (which was denied), petitioner failed
to raise that issue on direct appeal, and was thus precluded from
raising it in a subsequent state petition for collateral review.
The state court similarly found that, although petitioner
raised and litigated Ground 3 (failure to disclose alleged
impeachment material related to an adverse witness) during post-
conviction proceedings, she failed to brief the issue on direct
appeal. Again relying upon applicable New Hampshire law, the
state habeas court ruled that relief was unavailable.
As respondent points out, petitioner has offered no reason
at all for her failure to interpose the required objections or to
take the requisite appeals, nor has she shown that actual
prejudice resulted from any of the alleged violations of federal
law. Additionally, she has not suggested that, based on the
record as a whole, there would be reasonable doubt as to her
guilt in the absence of the alleged violations of her federal
rights, or any other reason to lack confidence in the outcome of
11 her trial. Since petitioner has not even attempted to establish
cause and prejudice relative to her procedurally defaulted
claims, and has not established any basis upon which to make an
“actual innocence” claim, the defaulted claims are not subject to
federal review. Moreover, the record reveals no possible
prejudice from either the routine judicial communication
complained o f , nor the failure to disclose possible impeachment
material related to one of the prosecution’s witness’s motivation
for testifying against her (the record discloses that the state
habeas court found that the impeachment evidence petitioner
references did not in fact exist).
II. Grounds 2 and 4 (Disallowing recall of witnesses and Prejudicial Publicity)
In addressing Ground 2 - the trial judge’s refusal to allow
petitioner to re-call witnesses after discovery of letters
authored by co-defendants - the New Hampshire Supreme Court fully
recognized that defendants do enjoy a constitutional right to
confront adverse witnesses, and attack their credibility through
cross-examination. But, in petitioner’s case, the trial judge
determined (and her legal counsel conceded) that the letters did
not relate to new issues. The judge also determined that “review
12 of the extensive cross-examination of [her co-defendants] reveals
that all of [the issues raised] had been explored.” Smart, 136
N.H. at 668. Because a trial judge has “broad discretion . . .
to preclude repetitive and unduly harassing interrogation,” Davis
v . Alaska, 415 U.S. 3 0 8 , 316 (1974), the New Hampshire Supreme
Court concluded that petitioner had not been deprived of her
Fifth and Sixth Amendment rights.
Nothing in petitioner’s pleadings before this court suggests
that the state supreme court’s rulings were anything other than
entirely consistent with and proper applications of United States
Supreme Court precedent as it pertains to these asserted grounds
for relief. It is also apparent that the desired line of
questioning would have had no substantial effect on the trial
result and petitioner’s inability to pursue it does not in any
way undermine confidence in the jury’s verdict. Recalling the
co-defendant witnesses for resumed cross-examination would have
been entirely cumulative of what had already been fully explored.
Regarding Ground 4 (Prejudicial Publicity), after an
exhaustive review of the record, including voir dire, trial, and
post-trial transcripts, and thirty hours of videotape of the
13 trial, the New Hampshire Supreme Court rejected petitioner’s
claim that she was denied an impartial jury and a fair trial due
to the presence and behavior of the media. Smart, 136 N.H. at
648-59. The New Hampshire Supreme Court concluded that
petitioner’s trial and associated media conduct were
substantially different from that in Sheppard v . Maxwell, finding
“any comparison [between the two] to be illusory.” Id. Based on
the totality of the circumstances and deference to the trial
judge’s role in determining impartiality, as required by United
States Supreme Court jurisprudence, the New Hampshire Supreme
Court found that the jury pool was not so tainted that an
impartial jury could not be chosen. The New Hampshire Supreme
Court also found that ample safeguards had been put in place, and
enforced throughout the trial, to protect petitioner’s due
process rights. See Id.; see also Mu’Min v . Virginia, 500 U.S.
415, 427 (1991) (“primary reliance on the judgment of the trial
court makes good sense”); Patton v . Yount, 467 U.S. 1025, 1031-32
(1984); Irvin v . Dowd, 366 U.S. 7 1 7 , 724 (1961) (only overturn
factual determination of trial judge if “manifest error”).
14 It is also apparent that the state supreme court considered
petitioner’s prejudicial publicity claim in light of federal
constitutional requirements:
Although the defendant bases her claim on both the State and Federal Constitutions, she relies primarily on federal law, and does not argue for a higher standard under the New Hampshire Constitution. Because we believe the principles are the same in any event, we address her argument under both constitutions, by reference to federal decisions.
Smart, 136 N.H. at 646. The state supreme court correctly
identified, construed, and applied controlling United States
Supreme Court precedent in resolving petitioner’s prejudicial
publicity claim, noting that “adverse pretrial publicity can
create such a presumption of prejudice in a community that the
juror’s claims that they can be impartial should not be
believed.” Id. at 647 (quoting Patton v . Yount, supra, at 1031).
But, the court also recognized that under federal precedent, a
“trial court’s finding that a jury was impartial should only be
overturned for manifest error.” Id. Properly distinguishing
petitioner’s case from that of Irvin v . Dowd, 366 U.S. 717
(1961), the state supreme court noted that no member of
petitioner’s jury expressed an opinion on voir dire that she was
15 guilty, and no juror was seated over her objection. Under such
circumstances, observed the court, “[i]t is difficult to conclude
. . . that the trial court’s finding that the jury was impartial
constituted manifest error.” Id. at 648.
The state supreme court also fully considered the nature of
what was undeniably extensive pretrial publicity surrounding
petitioner’s case - publicity that may well have been
unprecedented in the state, certainly unprecedented in the modern
era on instant mass communication. Again, the court properly
identified and applied United States Supreme Court precedent,
determining that, while extensive, the pretrial publicity
consisted by and large of “straightforward, unemotional factual
accounts of events and of the progress of . . . investigations.”
Id. at 649 (quoting United States v . Haledman, 559 F.2d 3 1 , 61
(D.C. Cir. 1976)). See also Murphy v . Florida, 421 U.S. 7 9 4 , 801
n.4 (1975) (“To ignore these real differences in the potential
for prejudice [between hostile or prejudicial publicity and
factual reporting] would not advance the cause of fundamental
fairness, but only make impossible the timely prosecution of
persons who are well known in the community, whether they be
notorious or merely prominent.”).
16 In concluding that “notwithstanding extensive pretrial
publicity, there was no manifest error in the trial court’s
determination that an impartial jury had been selected for the
[petitioner’s] trial,” the state supreme court’s application of
the analytic framework dictated by the relevant Supreme Court
precedent was neither objectively unreasonable, nor contrary to
that precedent. As noted previously, on federal habeas review,
state court findings and rulings can only be disturbed if those
rulings are contrary t o , or involved an unreasonable application
o f , clearly established Federal law, as determined by the United
States Supreme Court.
Petitioner does not address the applicable standard of
review in her pleadings but, instead, presents legal argument as
if de novo review were available in this court. It is plainly
not available. In any event, there is no basis for federal
habeas relief relative to petitioner’s prejudicial publicity
claim.
III. Ground 5 (Disproportionate and Unconstitutional Life Sentence)
Again, petitioner presumes, incorrectly, that de novo review
is available in this court. Petitioner fails to provide any
17 indication as to how the state habeas court’s finding - that her
sentence does not amount to cruel and unusual punishment - is
either contrary t o , or involves an unreasonable application o f ,
Supreme Court precedent. In any event, a sentence of life
imprisonment without the possibility of parole is certainly
proportional to the crimes for which she was convicted -
orchestrating the murder of her husband at the hands of her
teenage students - and flatly does not violate the Eighth
Amendment’s proscription. See generally Harmelin v . Michigan,
501 U.S. 957 (1991) (life sentence without possibility of parole
for possessing large quantity of cocaine is neither
disproportionate to the crime, nor does it violate the Eighth
Amendment’s Cruel and Unusual Punishments Clause).
Conclusion
A paragraph by paragraph comparison of petitioner’s state
habeas petition and her federal petition sheds some light on why
the petition before this court may not address critical issues,
like the standard of review applicable in habeas cases brought
pursuant to 28 U.S.C. § 2254. Except for a few minor stylistic
changes, petitioner appears to have filed the same legal
18 memorandum in both cases. The basic question here is not whether
petitioner can assert non-frivolous, or even colorable
constitutional claims, because this court does not have de novo
review authority. Absent a showing of cause and prejudice, or a
fundamental miscarriage of justice, in the case of issues decided
against petitioner by the state’s courts on adequate and
independent state grounds, and absent state court rulings that
are manifestly contrary t o , or involve an unreasonable
application o f , clearly established Federal law, as determined by
the United States Supreme Court, see Williams, 529 U.S. at 405-
0 6 , federal habeas relief is not available to state prisoners.
Given the record and pleadings before the court, it is
apparent that petitioner has not and cannot establish the
predicates necessary to federal habeas relief. Accordingly,
given the limited scope of review by this court, petitioner’s
failure to assert any basis for extending relief under the
applicable legal standards, and this court’s finding of no basis
in the record for affording federal habeas relief, the petition
for writ of habeas corpus is denied.
19 SO ORDERED.
Steven J. McAuliffe United States District Judge
September 3 0 , 2002
cc: Leslie H . Ben-Zvi, Esq. Mark L . Sisti, Esq. Ann M . Rice, Esq.