White v . Warden, NHSP CV-02-280-JM 12/10/03 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Delvin White
v. Civil N o . 02-280-JM Opinion N o . 2003 DNH 218P Jane Coplan, Warden, New Hampshire State Prison
O R D E R
Before the Court for consideration is Respondent’s motion
under Fed. R. Civ. P. 59(e) to alter the judgment in the above-
captioned matter (document n o . 1 4 ) . Petitioner has filed an
objection (document n o . 1 8 ) .
On July 9, 2002, the Petitioner filed a Petition for a Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2254 attacking his state
court convictions on sexual assault charges. After this Court’s
preliminary review of the petition, the Respondent filed an
answer. Thereafter, the parties consented to the assignment of
this case to the United States Magistrate Judge, and Respondent
subsequently filed a motion for summary judgment.
The central issue in this case is whether the New Hampshire
state courts violated Petitioner’s rights under the Sixth
Amendment to the United States Constitution to cross-examine the complaining witnesses against him where the trial court found
that Petitioner could not cross-examine the complaining witnesses
regarding an alleged pattern of prior false allegations of
similar offenses against others even though Petitioner had
demonstrated the falsity of those prior allegations to a
reasonable probability. After reviewing the matter, this Court
issued an order on July 1 1 , 2003, denying Respondent’s motion for
summary judgment, and granting the Petitioner’s application for a
writ of habeas corpus (document n o . 1 2 ) .
The standard of review that the Court applied to the
consideration of the Petitioner’s federal constitutional claim
was of critical importance to the decision. Under the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L .
N o . 104-132, 110 Stat. 1214 (1996), the federal courts may not
grant a state prisoner a writ of habeas corpus with respect to
any claim that was adjudicated on the merits in state court
proceedings unless the adjudication of the claim:
(1) 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 United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
2 28 U.S.C. § 2254(d). There is no dispute that the Supreme Court
of the United States has not decided a case where it held that a
defendant’s Sixth Amendment right to cross-examine witnesses
requires the introduction of the type of evidence claimed to have
been wrongfully excluded in the Petitioner’s case. Therefore, if
Petitioner’s federal constitutional claim was adjudicated on the
merits in the state court proceedings, application of the
deferential standard of Section 2254(d)(1) would be fatal to the
Petitioner’s claim. That is so because federal law has not been
clearly established in Petitioner’s favor within the meaning of
the AEDPA. In this Court’s July 1 1 , 2003 Order, however, the
Court stated that:
In light of the NHSC’s express decision not to undertake a separate federal analysis of White’s federal claim, and the NHSC’s apparent reliance on state authorities that do not support its perfunctory dismissal of analysis of federal law, this Court finds that White’s federal constitutional claim was not adjudicated on the merits in the state court.
July 1 1 , 2003 Order at 1 0 . Since the Court found that there was
no adjudication of Petitioner’s federal constitutional claim in
the state court proceedings to which the Court should defer, the
Court further found Petitioner’s claim required de novo review
3 under First Circuit precedent. Id.1 Exercising its independent
judgment on de novo review, the Court found that the Supreme
Court’s Confrontation Clause jurisprudence reasonably extends to
cross-examination of adverse witnesses about a pattern of
allegedly false accusations against others of the type of offense
of which the defendant is accused in circumstances where the
defendant has demonstrated the falsity of those prior accusations
by a reasonable probability.
In her Rule 59(e) motion, Respondent urges the Court to
reconsider whether it was appropriate to apply de novo review in
this case. Finding that Respondent’s motion raises a serious
legal question, the Court re-examines that issue here before this
case makes its way to an almost certain appeal.
The Supreme Court’s decision in Early v . Packer, 537 U.S. 3
(2002), bears mention. In Early, the Court reversed a decision
of the Ninth Circuit in a habeas case in which the Ninth Circuit
observed that the state court had not cited the controlling
1 See Fryar v . Bissonnette, 318 F.3d 339, 340 (1st Cir. 2003) (finding that de novo review was required where the federal claim was properly presented, but had not been addressed by the state’s highest court); DiBenedetto v . Hall, 272 F.3d 1 , 6 (1st Cir. 2001) (finding that the AEDPA does not apply where the state court has not decided the federal constitutional issue); Fortini v . Murphy, 257 F.3d 3 9 , 47 (1st Cir. 2001) (AEDPA does not apply when the federal claim was not addressed by the state courts).
4 Supreme Court precedents on the relevant issue, nor indeed any
federal law. Id. at 8 . The Supreme Court found that a state
court need not cite, or even be aware o f , the Supreme Court’s
cases, “so long as neither the reasoning nor the result of the
state-court decision contradicts them.” Id. In Ellsworth v .
Warden, N.H. State Prison, 333 F.3d 1 (1st Cir. 2003), the First
Circuit rejected an argument that Early invalidated the First
Circuit’s opinion in Fortini that the AEDPA does not apply when
the federal claim was not addressed by the state courts. The
First Circuit found that Early stands only for the proposition
that deference under the AEDPA does not depend on the state court
citing federal case law. Ellsworth, 333 F.3d at 4 n.1. Thus,
Fortini is ostensibly still good law.
Notwithstanding the First Circuit’s finding in Ellsworth,
however, the First Circuit has embraced a rule that greatly
restricts the application of Fortini. The court has found that
the adjudication of a habeas petitioner’s federal constitutional
claim should be deemed “subsumed” within the state court’s
adjudication of the petitioner’s state law claim if the state
court has held that the state adheres to a standard that is more
favorable to defendants than the applicable federal standard.
5 See Norton v . Spencer, N o . 03-1571, 2003 WL 22459121 at *3 (1st
Cir. Oct.
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White v . Warden, NHSP CV-02-280-JM 12/10/03 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Delvin White
v. Civil N o . 02-280-JM Opinion N o . 2003 DNH 218P Jane Coplan, Warden, New Hampshire State Prison
O R D E R
Before the Court for consideration is Respondent’s motion
under Fed. R. Civ. P. 59(e) to alter the judgment in the above-
captioned matter (document n o . 1 4 ) . Petitioner has filed an
objection (document n o . 1 8 ) .
On July 9, 2002, the Petitioner filed a Petition for a Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2254 attacking his state
court convictions on sexual assault charges. After this Court’s
preliminary review of the petition, the Respondent filed an
answer. Thereafter, the parties consented to the assignment of
this case to the United States Magistrate Judge, and Respondent
subsequently filed a motion for summary judgment.
The central issue in this case is whether the New Hampshire
state courts violated Petitioner’s rights under the Sixth
Amendment to the United States Constitution to cross-examine the complaining witnesses against him where the trial court found
that Petitioner could not cross-examine the complaining witnesses
regarding an alleged pattern of prior false allegations of
similar offenses against others even though Petitioner had
demonstrated the falsity of those prior allegations to a
reasonable probability. After reviewing the matter, this Court
issued an order on July 1 1 , 2003, denying Respondent’s motion for
summary judgment, and granting the Petitioner’s application for a
writ of habeas corpus (document n o . 1 2 ) .
The standard of review that the Court applied to the
consideration of the Petitioner’s federal constitutional claim
was of critical importance to the decision. Under the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L .
N o . 104-132, 110 Stat. 1214 (1996), the federal courts may not
grant a state prisoner a writ of habeas corpus with respect to
any claim that was adjudicated on the merits in state court
proceedings unless the adjudication of the claim:
(1) 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 United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
2 28 U.S.C. § 2254(d). There is no dispute that the Supreme Court
of the United States has not decided a case where it held that a
defendant’s Sixth Amendment right to cross-examine witnesses
requires the introduction of the type of evidence claimed to have
been wrongfully excluded in the Petitioner’s case. Therefore, if
Petitioner’s federal constitutional claim was adjudicated on the
merits in the state court proceedings, application of the
deferential standard of Section 2254(d)(1) would be fatal to the
Petitioner’s claim. That is so because federal law has not been
clearly established in Petitioner’s favor within the meaning of
the AEDPA. In this Court’s July 1 1 , 2003 Order, however, the
Court stated that:
In light of the NHSC’s express decision not to undertake a separate federal analysis of White’s federal claim, and the NHSC’s apparent reliance on state authorities that do not support its perfunctory dismissal of analysis of federal law, this Court finds that White’s federal constitutional claim was not adjudicated on the merits in the state court.
July 1 1 , 2003 Order at 1 0 . Since the Court found that there was
no adjudication of Petitioner’s federal constitutional claim in
the state court proceedings to which the Court should defer, the
Court further found Petitioner’s claim required de novo review
3 under First Circuit precedent. Id.1 Exercising its independent
judgment on de novo review, the Court found that the Supreme
Court’s Confrontation Clause jurisprudence reasonably extends to
cross-examination of adverse witnesses about a pattern of
allegedly false accusations against others of the type of offense
of which the defendant is accused in circumstances where the
defendant has demonstrated the falsity of those prior accusations
by a reasonable probability.
In her Rule 59(e) motion, Respondent urges the Court to
reconsider whether it was appropriate to apply de novo review in
this case. Finding that Respondent’s motion raises a serious
legal question, the Court re-examines that issue here before this
case makes its way to an almost certain appeal.
The Supreme Court’s decision in Early v . Packer, 537 U.S. 3
(2002), bears mention. In Early, the Court reversed a decision
of the Ninth Circuit in a habeas case in which the Ninth Circuit
observed that the state court had not cited the controlling
1 See Fryar v . Bissonnette, 318 F.3d 339, 340 (1st Cir. 2003) (finding that de novo review was required where the federal claim was properly presented, but had not been addressed by the state’s highest court); DiBenedetto v . Hall, 272 F.3d 1 , 6 (1st Cir. 2001) (finding that the AEDPA does not apply where the state court has not decided the federal constitutional issue); Fortini v . Murphy, 257 F.3d 3 9 , 47 (1st Cir. 2001) (AEDPA does not apply when the federal claim was not addressed by the state courts).
4 Supreme Court precedents on the relevant issue, nor indeed any
federal law. Id. at 8 . The Supreme Court found that a state
court need not cite, or even be aware o f , the Supreme Court’s
cases, “so long as neither the reasoning nor the result of the
state-court decision contradicts them.” Id. In Ellsworth v .
Warden, N.H. State Prison, 333 F.3d 1 (1st Cir. 2003), the First
Circuit rejected an argument that Early invalidated the First
Circuit’s opinion in Fortini that the AEDPA does not apply when
the federal claim was not addressed by the state courts. The
First Circuit found that Early stands only for the proposition
that deference under the AEDPA does not depend on the state court
citing federal case law. Ellsworth, 333 F.3d at 4 n.1. Thus,
Fortini is ostensibly still good law.
Notwithstanding the First Circuit’s finding in Ellsworth,
however, the First Circuit has embraced a rule that greatly
restricts the application of Fortini. The court has found that
the adjudication of a habeas petitioner’s federal constitutional
claim should be deemed “subsumed” within the state court’s
adjudication of the petitioner’s state law claim if the state
court has held that the state adheres to a standard that is more
favorable to defendants than the applicable federal standard.
5 See Norton v . Spencer, N o . 03-1571, 2003 WL 22459121 at *3 (1st
Cir. Oct. 3 0 , 2003) (finding that it was inappropriate for the
district court to apply de novo review to a habeas petitioner’s
federal claim because adjudication of the claim was subsumed
within the state appellate court’s adjudication of the issue
under state l a w ) ; McCambridge v . Hall, 292 F.3d 2 4 , 35 (1st Cir.
2002) (“If there is a federal or state case that explicitly says
that the state adheres to a standard that is more favorable to
defendants than the federal standard . . . , we will presume the
federal law adjudication to be subsumed within the state law
adjudication”). Under this reading of the law, a claim that
arises under both state and federal law need not be considered as
two distinct claims in order for the AEDPA to apply. As a
consequence, a state defendant who is aggrieved by a decision in
the state courts is not entitled to a full adjudication of his
federal constitutional claim in either the state courts, nor in
the federal courts on habeas review, if the state deems its
standard more favorable than the federal standard.2
2 There is an apparent exception to the First Circuit’s rule if the state court is incorrect in its determination that the state standard is more favorable to defendants than the federal standard, but it not entirely clear how this exception is to be applied. See McCambridge v . Hall, 292 F.3d at 35 (suggesting that the AEDPA does not apply if the state court is incorrect in
6 Respondent argues in her Rule 59(e) motion that the
adjudication of Petitioner’s federal constitutional claim was
subsumed within the New Hampshire Supreme Court’s analysis of the
state law claim when the court found, without discussion, that
federal law did not provide the defendant any greater protection.
Respondent argues that the court’s opinion was supported by its
citation of State v . Ellsworth, 142 N.H. 7 1 0 , 719-20 (1998),
which in turn cited a federal case, United States v . Stamper, 766
F. Supp. 1396, 1400 (W.D.N.C. 1991). Respondent further argues
that the district court in Stamper employed the same standard
used by the New Hampshire Supreme Court in Petitioner’s case.
The Court finds Respondent’s argument unpersuasive for two
reasons. First, the issue raised in State v . Ellsworth was not
the same issue that Petitioner presented in the instant case.
State v . Ellsworth addressed the admissibility of extrinsic
evidence of prior false allegations of sexual assault.
Petitioner’s case concerns the defendant’s right to cross-examine
an accusing witness with prior false allegations, rather than to
introduce extrinsic evidence of the prior false allegations at
trial. Second, the Court disagrees with the Respondent’s
its characterization of the state standard as more favorable than the federal standard).
7 interpretation of Stamper. In Stamper, the district court
presented the issue to be decided a s :
in a prosecution for statutory rape, where the nment’s sole incriminating evidence is the Government’s complaint’s testimony and where the complainant has admitted in writing to falsely accusing her mother’s boyfriend of sexual molestation on a prior occasion and has made accusations against two others under circumstances tending to show ulterior motives on her part, should the Court find to be admissible (a) cross examination of the complainant concerning such accusations, and (b) testimony by all three prior accusees that the ac
766 F. Supp. at 1399. Although the court in Stamper found that
there was a substantial similarity between the complainant’s
prior accusations and the accusation at issue, and that there was
substantial proof of the falsity of those prior allegations, the
court did not find, as the New Hampshire Supreme Court did in
Petitioner’s case, that a defendant must demonstrate “clearly and
convincingly” the falsity of the prior allegations before they
may be found admissible evidence. Indeed, the district court
noted that a letter written by the complainant regarding one of
the prior accusations, and the complainant’s in camera testimony
pertaining to all three prior allegations created “reasonable
doubt” as to the veracity of the prior allegations. Id. at 1402.
Therefore, Stamper does not support the New Hampshire Supreme
Court’s ruling.
8 Setting aside the reasoning behind the New Hampshire Supreme
Court’s decision, however, it is clear that the published cases
decided by the federal courts of appeal on constitutionally
required cross-examination are unfavorable to the Petitioner.
Relying on the reasoning in Justice Stewart’s concurring opinion,
those courts have interpreted Davis v . Alaska, 415 U.S. 308
(1974), as setting forth a dividing line between constitutionally
required cross-examination to expose the witnesses’ bias,
prejudice or motive and cross-examination intended as a general
attack on the witness’ credibility. See e.g., Redmond v .
Kingston, 240 F.3d 5 9 0 , 593 (7th Cir. 2001); Quinn v . Haynes, 234
F.3d 8 3 7 , 845 (4th Cir. 2000), Boggs v . Collins, 226 F.3d 7 2 8 ,
739-40 (6th Cir. 2000), United States v . Bartlett, 856 F.2d 1071,
1087-89 (8th Cir. 1988); Hughes v Raines, 641 F.2d 7 9 0 , 793 (9th
Cir. 1981). Those cases are not factually on point with the
instant case, however, because none of them involved an alleged
pattern of prior allegations of similar offenses against others
that have been shown to be false to a reasonable probability.
Although the Petitioner has not articulated a specific theory of
motive in this case, a pattern of false accusations may be
considered indicative of some motive to lie, making this case
9 similar to the “Davis-type” defense theory of a motive or scheme
to fabric the sexual assault allegations. See Stamper, 766 F.
Supp. at 1402 (finding that “defendant was entitled to offer the
evidence necessary to prove his theory of the case by showing
that complainant’s charges against him did not evince a single
isolated instance of manipulative behavior, but rather were part
of an ongoing scheme revealed by the like motive and modus
operandi of schemes past”). Nevertheless, this Court’s review of
this matter de novo does not demonstrate that the Supreme Court
of the United States, or the federal courts of appeal, would so
find if directly presented with this question.
Bound by circuit precedent on the application of the AEDPA,
the Court finds that the New Hampshire Supreme Court’s
adjudication of the Petitioner’s federal constitutional claim, by
means of adjudication of the analogous claim under state law, was
not contrary t o , nor an unreasonable application o f , federal law
as decided by the Supreme Court of the United States. Therefore,
the Court may not grant Petitioner a writ of habeas corpus.
The Respondent’s motion to alter the judgment (document n o .
10 14) is granted. This Court’s July 1 1 , 2003 Order (document n o .
12) is hereby withdrawn. Respondent’s motion for summary
judgment (document n o . 6 ) is granted. The Clerk of Court is
directed to enter judgment for the Respondent and close the case.
SO ORDERED.
James R. Muirhead United States Magistrate Judge Date: December 1 0 , 2003
cc: David M . Rothstein, Esq. Nicholas P. Cort, Esq.