Turgeon v . Cunningham CV-93-101-B 05/05/94
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Ronald Turgeon
v. Civil N o . 93-101-B
Michael J. Cunningham, Warden, New Hampshire State Prison
O R D E R
The State of New Hampshire has moved for reconsideration of
my March 1 7 , 1994 Order denying its motion to dismiss Ronald
Turgeon's habeas corpus petition. For the following reasons, the
State's motion is granted, and the March 1 7 , 1994 Order is
vacated.
I. FACTS
In February 1989, Turgeon was charged with four counts of
felonious sexual assault and one count of indecent exposure. He
plead not guilty to all charges, and the case was tried before a jury in November 1989.
On August 1 7 , 1989, the Merrimack County Superior Court
appointed Attorney Ray Raimo to represent Turgeon. According to
Raimo's billing records, he contacted Turgeon five times between
August 17 and October 1 6 , 1989 regarding the upcoming trial:
1 twice by letter, twice by phone, and once in a face to face
meeting which lasted approximately two hours and fifteen minutes.
Turgeon was unsatisfied with Raimo's performance. Four
weeks before trial, Turgeon filed a motion requesting that the
superior court dismiss Raimo from his case. Turgeon alleged,
inter alia, that Raimo failed to maintain contact with him and
failed to inform him of trial tactics and strategy. The superior
court did not entertain the motion and the case proceeded to
trial.
On the first day of trial, the State's attorney called seven
year-old Angela to the stand, one of Turgeon's alleged victims.
Turgeon was in the courtroom, seated next to Attorney Raimo. The
trial record reflects that Angela was nervous, scared and
embarrassed about testifying. During direct examination, Angela
identified Turgeon by name. However, when asked if he was in the courtroom, she responded in the negative. In order to help
Angela identify Turgeon, the State's attorney approached each
person in the courtroom, had them stand and then asked Angela if
she recognized them. Angela's response to the first twenty-one
people pointed out by the State's attorney was "no", she did not
recognize them. Turgeon was the twenty-second person. When the
State's attorney reached Turgeon, the dialogue was as follows: Q: Can you recognize this man? A: Um, I think. Q: Who do you think he is? A: Um, Ron. Q: All right. Do you think or do you know? A: I think. Q: Has it been a long time since you saw him? A: Yep. The State's attorney went on to point out fourteen more people,
some of whom Angela recognized and could identify by name. Raimo
did not object to the manner in which the State's attorney had Angela identify Turgeon.1
Overall, the State called seven witnesses, including Angela
and Lisa, the other alleged victim. Raimo effectively cross-
examined these witnesses. After the State rested, Raimo called
three defense witnesses: eight year-old Daniel, who was present
at the scene of one of the alleged sexual assaults; five year-old Corina, Turgeon's daughter, who was also present at the scene of
one of the alleged sexual assaults and at the scene of the
indecent exposure; and Louisa Turgeon, petitioner's wife. At the
end of the second day of trial, the defense rested.
On December 1 , 1989, the jury found Turgeon guilty of the
indecent exposure charge and one count of felonious sexual
1 Raimo raised an objection at the outset of the identification process. However, the prosecutor rephrased his question and Raimo did not renew his objection.
3 assault against Angela.
Attorney Charles Flower represented Turgeon at his
sentencing hearing held on February 9, 1990. The superior court
sentenced Turgeon pursuant to N.H. Rev. Stat. Ann. § 651:6.
After making findings of fact regarding the nature of the
offenses for which Turgeon was convicted, his criminal
background, and his propensity to sexually abuse young girls, the
superior court sentenced him to an extended term of imprisonment
of from ten to 30 years on the felonious sexual assault
conviction, and a consecutive term of from two to five years
imprisonment on the indecent exposure conviction.
Turgeon appealed his conviction to the New Hampshire Supreme
Court. Initially proceeding pro s e , Turgeon filed numerous
motions with the court. Subsequently, Turgeon was appointed
appellate counsel. On December 2 , 1991, counsel filed an amended notice of appeal which contained the following three issues: I . Whether the Superior Court erred as a matter of law/abuse of discretion in denying Defendant's Motion for Dismissal due to the insufficiency of the evidence presented by the State to show the Defendant's actions were perpetrated for the purpose of sexual gratification?
4 I I . Whether the Superior Court abused its discretion o r , in the alternative, erred as a matter of law in denying Defendant's Motion to Dismiss the charge of indecent exposure due to the State's presentation of insufficient evidence to prove a requisite mental intent to expose the Defendant's genitals? III. Whether the Superior Court erred as a matter of law in allowing the State to have the Defendant identified to the jury in an overly suggestive procedure whereby alternative individuals were eliminated until the victim/witness was left with a choice of identifying her father or the defendant as the perpetrator?
On February 4 , 1992, the supreme court directed appellate
counsel to file a statement of reasons why the court should
accept Turgeon's case for briefing and oral argument. With
respect to issues one and two, the supreme court also directed appellate counsel to make a succinct statement as to why the
evidence was insufficient as a matter of law.
On February 2 8 , 1992, appellate counsel withdrew issues one
and two from the supreme court's consideration, stating that he
was acting with Turgeon's consent. Appellate counsel chose to
focus the appeal on the issue of the in-court identification
procedure.
On March 1 2 , 1992, Turgeon filed a motion with the supreme
5 court stating that he had not consented to appellate counsel's
withdrawal of issues one and two. Nevertheless, on March 3 1 ,
1992, the court declined to accept Turgeon's appeal, citing New
Hampshire Supreme Court Rule 7 ( 1 ) .
On July 3 0 , 1992, Turgeon, proceeding pro s e , filed for
state habeas corpus relief with the superior court. In his state
petition Turgeon raised, inter alia, claims of ineffective
assistance of counsel, suggestive in-court identification,
insufficiency of the evidence, and imposition of an unlawful
sentence. The superior court held a hearing on the petition on
December 1 1 , 1992. None of Turgeon's previous attorneys appeared
to testify at the hearing. Moreover, no witnesses were called to
testify. The hearing consisted solely of Turgeon's unsworn
statements. On December 2 4 , 1992, the superior court denied
Turgeon habeas corpus relief. On March 1 1 , 1993, Turgeon appealed the superior court's
decision to the New Hampshire Supreme Court. On June 2 , 1993,
the supreme court declined to accept Turgeon's appeal, citing New
On two prior occasions, April 2 7 , 1992 and January 2 2 , 1993,
Turgeon filed for federal habeas corpus review in this court. On
both occasions this court dismissed the habeas petitions as mixed
6 petitions because they contained unexhausted ineffective
assistance of counsel claims. A review of the record indicates
that Turgeon has now exhausted his state remedies.
II. DISCUSSION
Turgeon raises five claims in his present petition. First,
he asserts that he received ineffective assistance of counsel at
trial and at his sentencing hearing. Second, he contends that
during trial he was subjected to an overly suggestive in-court
identification procedure. Turgeon's third and fourth claims are
identical to the two insufficiency of the evidence claims
appellate counsel allegedly waived during Turgeon's appeal to the
supreme court. Finally, Turgeon argues that the sentence he
received was illegal, in that it was disproportionate to the offense for which he was convicted.
The State contends that Turgeon's attorneys were not
ineffective, and that he is procedurally barred from raising the
remaining four claims because he defaulted on the claims in state
court.
A. THE COURT'S MARCH 1 7 , 1994 ORDER
In my March 1 7 , 1994 Order, I denied the State's motion to
dismiss because I concluded that: (1) Turgeon was entitled to an
7 evidentiary hearing on his ineffective assistance of counsel claims; and (2) the State had failed to establish that Turgeon procedurally defaulted on his remaining claims. After considering the State's motion for reconsideration, I have concluded that my March 1 7 , 1994 Order should be vacated because the Order was based on several erroneous legal conclusions. First, I mistakenly evaluated the State's motion as if it were a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) when, in reality, I should have treated the motion as a motion for summary judgment.2 See Browder v . Director, Dept. of
2 The State captioned its motion a "Motion to Dismiss," but did not identify the rule on which it was based. Nor did the State describe the standard of review which it contended should govern the motion. Because the State routinely files motions to dismiss pursuant to Rule 12(b)(6) in habeas corpus cases, I treated the motion as if it had been filed under Rule 12(b)(6). In the future, the State should not file motions to dismiss in habeas corpus cases assigned to me for decision. Pursuant to Rule 4 of the rules governing Section 2254 cases in the United States District Courts, the court is required to review each petition and determine whether it should be dismissed before respondent is required to answer the petition. In the rare case where the State is ordered to answer a petition that fails, in the State's view, to satisfy the Rule 4 standard, the State may file a motion to reconsider the court's Rule 4 determination in lieu of an answer. Otherwise, it must answer the petition in the manner contemplated by Rule 5 . I f , after answering the petition, the State contends that it is entitled to judgment as a matter of law on the petition and record produced with the answer, it may move for summary judgment. For example, if the State contends that the petition should be dismissed because it contains unexhausted claims, it should move for summary judgment on this
8 Corr., 434 U.S. 2 5 7 , 269 n.14, reh'g denied, 434 U.S. 1089 (1978)
(recognizing that a Rule 12(b)(6) motion is not an appropriate
motion in habeas corpus litigation). Second, I erroneously
concluded that an evidentiary hearing was required to resolve
Turgeon's ineffective assistance of counsel claims when I first
should have directed the State to produce a transcript of the
December 1 , 1992 state court hearing on these claims. Finally,
in evaluating the State's procedural default argument, I
mistakenly presumed that the state supreme court reached the
merits of Turgeon's federal claims when it dismissed both his
direct appeal and his habeas corpus appeal without explanation.
See, e.g., Harris v . Reed, 489 U.S. 255, 263 (1989). I discuss
these latter two errors in greater detail below.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
In Keeney v . Tamayo-Reyes, 112 S.Ct. 1715, 1721 (1992), the
Supreme Court held that a habeas corpus petitioner is entitled to
an evidentiary hearing in federal court only if he can show
basis. After I review the answer and any motion for summary judgment filed by the State and any objections filed by the petitioner, I will determine whether discovery is warranted under Rule 6, whether the record should be expanded pursuant to Rule 7 , and whether an evidentiary hearing is necessary pursuant to Rule 8.
9 either: (1) "cause for his failure to develop the facts in state-
court proceedings and actual prejudice resulting from that
failure"; or (2) "that a fundamental miscarriage of justice would
result from failure to hold a federal evidentiary hearing." Id.
Since Turgeon does not allege facts that would entitle him to an
evidentiary hearing under the rule announced in Keeney, I
determine that he is not entitled to an evidentiary hearing.3
The State has not produced a transcript of the hearing upon
which the state court based its denial of Turgeon's ineffective
assistance claims. Although I am required to presume that the
State court's factual findings are correct, see 28 U.S.C. §
2254(d); but c f . Chakouian v . Moran, 975 F.2d 9 3 1 , 934 (1st Cir.
1992) (noting that mixed questions of fact and law are reviewed
de novo in habeas corpus cases), I cannot evaluate the findings
made by the state court without the transcript of the hearing on which those findings are based. Accordingly, the State is
3 Notwithstanding the State's argument to the contrary, I do not construe Keeney to hold that I am precluded from conducting an evidentiary hearing on a habeas corpus petition when I determine that such a hearing would be helpful in resolving an issue raised in the petition. Keeney merely dispenses with the requirement that I hold an evidentiary hearing except in situations where the petitioner can meet either the cause and prejudice test or the fundamental miscarriage of justice standard. See Keeney, 112 S.Ct. at 1727 (O'Connor, J., dissenting); Pagan v . Keane, 984 F.2d 6 1 , 64 (2nd Cir. 1993).
10 directed to produce a transcript of the hearing on or before May
3 0 , 1994. I will determine whether to schedule an evidentiary
hearing on Turgeon's ineffective assistance of counsel claims
after I review the hearing transcript.
C. PROCEDURAL DEFAULT
The State contends that Turgeon is procedurally barred from
raising his remaining claims in federal court. In resolving this
contention, I must first determine whether the New Hampshire
Supreme Court relied on state procedural grounds in dismissing
Turgeon's appeals. If it did, Turgeon will not be entitled to
raise his claims here unless he can establish either: (1) cause
for failing to comply with the state rule and prejudice resulting
from the failure; or (2) that a fundamental miscarriage of justice would result from the application of the state rule.
Coleman v . Thompson, 111 S.Ct. 2546, 2565, reh'g denied, 112
S.Ct. 620 (1991). I begin by determining whether the New
Hampshire Supreme Court relied on state procedural grounds in
dismissing Turgeon's appeals.
1. Determining Whether a State Court Judgment is Based on State Law
It is often difficult to determine whether a state court has
11 based its dismissal of an appeal on state or federal grounds.
The Supreme Court attempted to address this difficulty in Harris
v . Reed, where the court held that "a procedural default does not
bar consideration of a federal claim on either direct or habeas
review unless the last state court rendering a judgment in the
case 'clearly and expressly' states that its judgment rests on a
state procedural bar." 489 U.S. 255, 263 (1989). Just two years
later, however, the court substantially narrowed this holding,
stating that in order for the Harris presumption to apply, "the
decision of the last state court to which the petitioner
presented his federal claims must fairly appear to rest primarily
on federal law or to be interwoven with federal law." Coleman,
111 S.Ct. at 2559. In the present case, the Supreme Court's
dismissal of both Turgeon's habeas corpus appeal and his direct
appeal are unexplained. Moreover, I find nothing in the record suggesting that either decision either rested primarily upon
federal law or was interwoven with federal law. Accordingly, I
may not rely on the Harris presumption in resolving this issue.
In Ylst v . Nunnemaker, the Supreme Court examined how a
district court should determine the basis for an unexplained
state court denial of a habeas corpus petition. 111 S.Ct. 2590,
2594 (1991). In such cases, the Court held that a district court
12 must apply the following presumption:
Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground. If an earlier opinion "fairly appears to rest primarily upon federal law," Coleman, 111 S.Ct. at 2591, we will presume that no procedural default has been involved by a subsequent unexplained order that leaves the judgment or its consequences in place. Similarly, where . . . the last reasoned opinion on the claim explicitly imposes a procedural default, we will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits. Id.
Accordingly, I look to the superior court's Order denying
Turgeon's habeas corpus petition to determine its basis. In this
Order, Judge William O'Neil stated: With the exception of M r . Turgeon's allegation of ineffective assistance of counsel, most, if not all, of M r . Turgeon's complaints are those that are the subject of a direct appeal and [sic] the Supreme Court of New Hampshire. The New Hampshire Supreme Court declined defendant's appeal, therefore, those matters are not before this court on the petition for writ of habeas corpus.
Although not required to do s o , the court will briefly address some of M r . Turgeon's concerns.
Although Judge O'Neil did not explain the basis for his
13 conclusion that he was not required to reach the merits of
Turgeon's claims, I conclude that he applied several accepted
state procedural rules limiting his authority to consider claims
raised in habeas corpus petitions. First, with respect to the
suggestive identification claim, Judge O'Neil merely recognized
the obvious limitation on his authority to grant habeas corpus
relief on a ground that had been presented to the state supreme
court and had been found by that court to be an insufficient
basis to justify a new trial. Second, with respect to the
insufficiency of the evidence claims, Judge O'Neil relied on the
well-established state rule that matters raised in a notice of
appeal but later withdrawn are waived. Humphrey v . Cunningham,
133 N.H. 7 2 7 , 7 3 2 , 584 A.2d 763, 766 (1990); Stewart v .
Cunningham, 131 N.H. 6 8 , 7 1 , 550 A.2d 9 6 , 98 (1988). Finally,
with respect to the unlawful sentence claim, Judge O'Neil based his decision on the rule that claims that are known to the
defendant but not raised in a direct appeal are waived. Avery v .
Cunningham, 131 N.H. 1 3 8 , 143, 551 A.2d 9 5 2 , 955 (1988); but see,
Humphrey, 133 N.H. at 7 3 2 , 584 A.2d at 766 ("A petitioner . . .
may collaterally attack a proceeding by filing a petition for
writ of habeas corpus after the time for a direct appeal has
expired, if he can establish a harmful constitutional error.").
14 Since Judge O'Neil's disposition of both the insufficiency
of the evidence claims and the disproportionate sentencing claim
were based upon state law, I follow Ylst and presume that the
Supreme Court's later disposition of the petition was based upon
the same grounds. Because Turgeon has produced no evidence to
rebut this presumption, I conclude that these claims were denied
on the basis of state law.
With respect to the suggestive identification claim, Judge
O'Neil's conclusion was based on his inability as a superior
court judge to overrule a decision of the supreme court. This
aspect of his decision thus provides no clues as to the basis for
the supreme court's disposition of this claim. Accordingly, I
cannot rely on the Ylst presumption to determine the basis for
the Supreme Court's unexplained disposition of the suggestive
identification claim. Nevertheless, I must still determine "if the petitioner is in custody pursuant to a state court judgment
that rests on an independent and adequate state ground." Id. at
2258.
The New Hampshire Supreme Court has steadfastly refused to
consider the merits of claims that are not properly preserved by
a contemporaneous objection at trial. State v . Wong, --- N.H. --
- , 635 A.2d 4 7 0 , 476-77 (1993); State v . Santana, 133 N.H. 7 9 8 ,
15 807-08, 586 A.2d 7 7 , 83 (1991); State v . Johnson, 130 N.H. 5 7 8 ,
587, 547 A.2d 213, 218 (1988). Turgeon's state supreme court
notice of appeal and his brief statement in support of his
request for appeal candidly concede that his suggestive
identification claim was not preserved by a contemporaneous
objection. Since there is no evidence in the record suggesting
that the supreme court based its dismissal of this claim on any
federal ground, I conclude that the state supreme court followed
its consistent practice and declined to consider the suggestive
identification claim because it was not preserved by a
contemporaneous objection. See, e.g., Coleman, 111 S . C t . at
2559 ("[i]n the absence of a clear indication that a state court
rested its decision on federal law, a federal court's task will
not be difficult"). 2. Determining When There is Cause for a Procedural Default
Turgeon does not attempt to rely on the miscarriage of
justice exception to the procedural default rule. Thus, I turn
to his claim that there was "cause" for his defaults in state
a. Suggestive identification claim
Turgeon asserts that his failure to preserve his suggestive
identification claim should be excused because his trial counsel
16 was constitutionally ineffective. I agree that a claim of
constitutionally ineffective assistance of counsel can serve as
"cause" for a procedural default. Murray v . Carrier, 477 U.S.
478, 488 (1986). However, I am not in a position to evaluate
this claim on the present record because I have not yet been
provided a copy of the hearing transcript where Turgeon was given
an opportunity to establish his ineffective assistance claim.
Accordingly, I will defer judgment on this claim until I have an
opportunity to review this transcript. b. Insufficiency of the evidence and disproportionate sentencing claims
Turgeon argues that he failed to preserve his sufficiency of
the evidence claims and disproportionate sentencing claims
because his appellate counsel was ineffective. While ineffective assistance that satisfies the test established in Strickland v .
Washington, 466 U.S. 6 6 8 , 690 (1984), can serve as a "cause" for
a failure to preserve an issue on appeal, Murray, 477 U.S. at
491, Turgeon never claimed in state court that his appellate
counsel was ineffective. Moreover, he is barred from relying on
this argument in his federal habeas corpus claim because he has
not attempted to explain his failure to raise this claim in state
court. Murray, 477 U.S. at 489 (ineffective assistance claim
17 that is asserted as a "cause" for a procedural default must
ordinarily be litigated in state court). Turgeon did argue in
state court that he should have been allowed to raise his
insufficiency of the evidence claims on appeal because he did not
give appellate counsel permission to withdraw these claims.
However, appellate counsel's failure to recognize or raise an
issue on appeal will not, by itself, constitute cause for a
procedural default. See Id. at 492. Accordingly, Turgeon is
barred from raising his insufficiency of the evidence and
unlawful sentence claims.
III. CONCLUSION
The State's motion for reconsideration (document n o . 24) is
granted and my March 1 7 , 1994 Order is vacated. The State's motion to dismiss (document n o . 13) is granted in part.
Turgeon's sufficiency of the evidence and disproportionate
sentencing claims were resolved in state court on independent and
adequate state grounds. Accordingly, he may not obtain review of
these claims in federal court. The State is ordered to produce a
transcript of the December 1 1 , 1992 hearing at which petitioner
raised his ineffective assistance claims in state court. After
reviewing this transcript, I will determine whether to hold an
18 evidentiary hearing on Turgeon's remaining claims.
SO ORDERED.
Paul Barbadoro United States District Judge May 5 , 1994
cc: Ronald Turgeon Mark D. Attorri, Esq. S . David Siff, Esq.