Verenbec v. Warden

2015 DNH 127

• Court: District Court, D. New Hampshire
• Decided: June 22, 2015
• Docket: 11-cv-161-LM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Joel G. Verenbec

v. Civil No. 11-cv-161-LM Opinion No. 2015 DNH 127 Warden, Northern New Hampshire Correctional Facility

O R D E R

Before the court is § 2254 petitioner Joel Verenbec’s

motion to reconsider (doc. no. 40) the court’s September 25,

2014 Order (doc. no. 39), to the extent that the Order denied

Verenbec’s request for an evidentiary hearing and granted the

respondent warden’s motion for summary judgment on all but one

claim for relief. The warden has not objected to Verenbec’s

motion for reconsideration (doc. no. 40).

Local Rule 7.2(d) states that a “motion to reconsider an

interlocutory order of the court . . . shall demonstrate that

the order was based on a manifest error of fact or law.”

Verenbec asserts, among other things, that this court erred in

concluding that the state courts adjudicated any of his claims

on the merits, and in declining to hold an evidentiary hearing

on the claims resolved in the September 25, 2014, Order (doc.

no. 39). Additionally, Verenbec asserts that there are factual

issues that warrant resolution only after an evidentiary hearing, and that this court’s rejection of his claims will

result in the continued incarceration of an innocent man.

I. Claims Adjudicated on the Merits in State Courts

This court’s review of claims adjudicated on the merits in

the state courts is limited to the state court record. See

Cullen v. Pinholster, 131 S. Ct. 1388, 1398, 1400 (2011); see

also 28 U.S.C. § 2254(d)(1). In the September 25, 2014 Order

(doc. no. 39), this court found that Claims 3(a)-(b), Claim 3(d)

(in part), and Claims 3(e)-(i), were adjudicated on the merits

in the state courts. This court has reviewed the record in

light of Verenbec’s assertions and finds no error in its

determination regarding which claims had been adjudicated on the

merits by the state courts. Therefore, as to each of those

claims, a hearing would not yield evidence that could be deemed

relevant to the resolution of Verenbec’s § 2254 petition.

The court has reviewed the record as to its resolution of

each of those claims determined on the merits in the state

courts and finds no error in its previous ruling that the state

court’s determination was reasonable and not contrary to any

Supreme Court precedent. Accordingly, as to Claims 3(a)-(b),

Claims 3(e)-(i), and Claim 3(d) (in part), the motion to

reconsider the summary judgment order is denied.

2 II. Remaining Claims

Of the claims resolved in the September 25, 2015 Order

(doc. no. 39), only Claim 2 and a portion of Claim 3(d)

(relating to Attorney Maggiotto’s failure to press his motion

for a recess) were not adjudicated on the merits in the state

courts. As to those remaining claims, this court concludes that

Verenbec had not made the showing necessary to demonstrate the

existence of any genuine issue of material fact, which could

warrant an evidentiary hearing and reconsideration of the

summary judgment order. A “habeas judge, before granting an

evidentiary hearing,” must determine whether the petitioner has

shown that “his allegations would entitle him to relief and

[that] the hearing is likely to elicit the factual support for

those allegations.” Teti v. Bender, 507 F.3d 50, 62 (1st Cir.

2007). Section 2254(e)(2) further provides that if a petitioner

moves for an evidentiary hearing to develop the factual basis

for a claim that he failed to develop in the state courts, the

federal court must deny the request unless the petitioner shows

that the claim relies on “a factual predicate that could not

have been previously discovered through the exercise of due

diligence,” 28 U.S.C. § 2254(e)(2)(A)(ii), and that the “facts

underlying the claim would be sufficient to establish by clear

and convincing evidence that but for constitutional error, no

3 reasonable fact-finder would have found the applicant guilty of

the underlying offense.” Id. § 2254(e)(2)(B).

Verenbec has not made the requisite showing under

§ 2254(e)(2) as to the portion of Claim 3(d) dealing with

Attorney Maggiotto’s failure to press his motion for recess.

Verenbec has not shown that he exercised due diligence when he

failed to develop this claim in the state courts. Verenbec

obtained unsworn witness statements regarding his claim that two

jurors sitting in the jury box appeared to hear and react to the

victim’s crying outside of the courtroom and her continued

crying or sniffling as she entered the courtroom, but Verenbec

has not shown why he could not obtain sworn statements.

Furthermore, he has not shown by clear and convincing evidence

that but for counsel’s failure to press his motion for a recess

more vigorously, no reasonable juror would have found him

guilty. Such a showing would require Verenbec to demonstrate

that, had the trial court granted a recess immediately before

the eleven-year-old victim began testifying (thereby mitigating

any impact that her crying before testifying may have had on

jurors), no reasonable juror would have believed her testimony

that Verenbec sexually assaulted her. Verenbec has failed to

make the requisite showing here. Accordingly, Verenbec has not

shown that an evidentiary hearing in this court is properly held

on Claim 3(d) with respect to counsel’s failure to press his

4 motion for a recess, and Verenbec has not shown that there is

any error in this court’s underlying ruling granting summary

judgment on Verenbec’s Sixth Amendment ineffective assistance of

counsel claim relating to Attorney Maggiotto’s failure to press

his motion for a recess.

Similarly, as to Claim 2, Verenbec has not made the

requisite showing to warrant an evidentiary hearing. Claim 2 is

Verenbec’s due process claim that the prosecutor knowingly put

forward false testimony, when the victim’s aunt did not disclose

that she used an alias in the pornography industry, and that

there were images of her on the Internet engaging in sex acts

with other women. Verenbec has not shown that an evidentiary

hearing would disclose that the prosecutor knew that any part of

the witness’s testimony was untrue. Furthermore, he has not

shown that he exercised due diligence in the state courts with

respect to establishing the factual predicate for that claim.

Verenbec has thus failed to satisfy his burden under § 2254(e)

with respect to his request for a hearing as to Claim 2.

Moreover, he has not shown that there is any error in this

court’s underlying ruling granting summary judgment on the due

process claim relating to the aunt’s testimony.

Accordingly, this court declines to reconsider its

September 25, 2014 Order (doc. no. 39). Because Verenbec has

not otherwise demonstrated that the September 25, 2014 Order

5 (doc. no. 39) is based on any error of law or fact, the court

denies the motion to reconsider (doc. no. 40) that Order.

Conclusion

For the foregoing reasons, the court denies Verenbec’s

motion (doc. no. 40), seeking reconsideration of the September

25, 2014 Order (doc. no. 39).

SO ORDERED.

_______________________________ Landya McCafferty United States District Judge

June 22, 2015

cc: Joel Verenbec, pro se Elizabeth C. Woodcock, Esq.