Mathison v. Warden, NH State Prison CV-98-457-M 10/19/00
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
James L. Mathison,
Petitioner
v. Civil No. 98-457-M
Opinion No. 2000 DNH 218
Michael J. Cunningham, Warden,
New Hampshire State Prison;
The New Hampshire Supreme Court; and
Merrimack County Superior Court,
Respondents
O R D E R
James L. Mathison, appearing pro se, petitions for a writ of
habeas corpus, challenging his state court convictions for one
count of felonious sexual assault and one count of aggravated
felonious sexual assault. See 28 U.S.C. § 2254. Although his
petition raises 27 distinct claims, they fall into three general
categories: first, he claims that he was denied effective
assistance of counsel at his criminal trial; second, he says that
the procedures employed by the state superior court in reaching
the merits of his subseguent state petition for habeas corpus
operated to deny him his constitutional rights to due process and
egual protection; and, finally, he raises essentially the same
due process and equal protection claims with regard to the manner
in which the New Hampshire Supreme Court disposed of his appeal
of the lower state court's denial of his habeas corpus petition.
Background
In July of 1990, petitioner was indicted on charges of
felonious sexual assault and aggravated felonious sexual assault.
His first trial resulted in a deadlocked jury and a mistrial.
Subsequently, he was re-tried and convicted on both counts. The
New Hampshire Supreme Court, however, reversed both convictions,
since petitioner was not provided with transcripts of the first
trial prior to commencement of the second trial. Accordingly,
the matter was remanded and scheduled for a third trial.
Prior to his third trial, petitioner was charged with
perjury, arising from testimony he had given in his second trial.
The perjury charge was consolidated with the two sexual assault
charges and trial began. Petitioner was convicted on both sexual
assault counts, but acquitted on the perjury count. He again
appealed to the New Hampshire Supreme Court, which affirmed his
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convictions. See State of New Hampshire v. Mathison, No. 95-245
(N.H. February 4, 1996).
In April of 1997, petitioner filed a petition for writ of
habeas corpus in the Merrimack County (New Hampshire) Superior
Court, alleging that he was denied effective assistance of
counsel during his third trial. After ruling on a number of
procedural motions, the court held a hearing on October 24, 1997,
at which it heard arguments on the merits of the petition for
habeas corpus. By order dated November 24, 1997, the court
denied the petition. See Mathison v. Cunningham, No. 97-E-0132
(Merrimack Sup. C t . November 24, 1997). Petitioner appealed that
denial to the New Hampshire Supreme Court, which summarily
affirmed the lower court's decision. See Mathison v. Warden, New
Hampshire State Prison, No. 98-013 (N.H. July 6, 1998).
Petitioner then filed a petition for writ of habeas corpus in
this court.
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Discussion
I. Legal Framework.
Before considering the merits of a petition for habeas
corpus, a federal court must first determine whether the
petitioner has exhausted available remedies in the state court
system. See 28 U.S.C. § 2254(b)(1)(A). "An applicant shall not
be deemed to have exhausted the remedies available in the courts
of the State, within the meaning of this section, if he has the
right under the law of the State to raise, by any available
procedure, the guestion presented."
28 U.S.C. § 2254(c). A
petitioner's failure to exhaust state remedies can be excused
only if "there is an absence of available State corrective
process" - in which case exhaustion is simply impossible - or
when "circumstances exist that render such process ineffective to
protect the rights of the applicant."
28 U.S.C. § 2254(b)(1).
To satisfy the exhaustion reguirement of § 2254, a
petitioner must have "fairly presented the substance of his
federal habeas claim to the state court before seeking federal
review." Gagne v. Fair, 835 F.2d 6, 7 (1st Cir. 1987). That
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requirement can be met by any of the following: "(1) citing a
specific provision of the Constitution; (2) presenting the
substance of a federal constitutional claim in such manner that
it likely alerted the state court to the claim's federal nature;
(3) reliance on federal constitutional precedents; and (4)
claiming a particular right specifically guaranteed by the
Constitution." Id. (citing Dougan v. Ponte,
727 F.2d 199, 201
(1st Cir. 1984)). See also Nadwornv v. Fair,
872 F.2d 1093, 1097
(1st Cir. 1989) .
If the provisions of § 2254(b)(1) are met, the petitioner
must demonstrate that the state court adjudication of his claim
"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." 28 U.S.C. § 2254(d)(2).
Alternatively, the petitioner must show that the state court's
resolution of his habeas petition was "contrary to, or involved
an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States."
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U.S.C. § 2254(d)(1). The Supreme Court recently explained the
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distinction between decisions that are "contrary to" clearly
established federal law, and those that involve an "unreasonable
application" of that law.
Under the "contrary to" clause, a federal habeas court
may grant the writ if the state court arrives at a
conclusion opposite to that reached by [the Supreme]
Court on a question of law or if the state court
decides a case differently than [the Supreme] Court has
on a set of materially indistinguishable facts. Under
the "unreasonable application" clause, a federal habeas
court may grant the writ if the state court identifies
the correct governing legal principle from [the
Supreme] Court's decisions but unreasonably applies
that principle to the facts of the prisoner's case.
Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000).
II. Petitioner's Claims.
In its answer, the State acknowledges that petitioner fairly
presented to the New Hampshire Supreme Court his claims
concerning ineffective assistance of trial counsel and has,
therefore, exhausted all available state remedies as to those
claims.
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The remainder of petitioner's claims, however, suffer from
numerous defects. Many either fail to raise questions of federal
law or were not properly presented in petitioner's appeal to the
New Hampshire Supreme Court. For example, claim 12.B.11 asserts
that the state superior court "refused to obey RSA 534:21 and
hold the hearing on the writ of habeas corpus within three days
as required by [state] law." Plainly, that claim fails to allege
that petitioner "is in custody in violation of the Constitution
or laws or treaties of the United States." 28 U.S.C. § 2254(a).
Claims 12.B.8 ("the court accepted the misbehavior by the agents
of the State without any sanction") and 12.B.9 ("The court
accepted conduct constituting a felony in the presence of the
court by agents of the State without any sanction.") suffer from
similar problems.
Other claims simply fail to set forth a basis for habeas
relief. For example, in claim 12.B.10 petitioner asserts that
during his state habeas proceedings "the court denied the
appointment of counsel, compounding the error of ineffective
assistance of counsel" at petitioner's criminal trial. However,
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the ineffectiveness of counsel during a state habeas proceeding
and, by necessary implication, the failure to appoint counsel
during that proceeding (at least in non-capital cases) cannot
form the basis of relief under section 2254. See 28 U.S.C. §
2254(i) ("The ineffectiveness or incompetence of counsel during
Federal or State collateral post-conviction proceedings shall not
be a ground for relief in a proceeding arising under section
2254."). Compare 28 U.S.C. § 2261 (addressing the appointment of
counsel to petitioners under a capital sentence). See also
Coleman v. Thompson,
501 U.S. 722, 752 (1991) ("There is no
constitutional right to an attorney in state postconviction
proceedings."); Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)
("We have never held that prisoners have a constitutional right
to counsel when mounting collateral attacks upon their
convictions, and we decline to so hold today.") (citation
omitted).
There is, however, a more fundamental problem with
petitioner's remaining claims. Each relates to some alleged
deficiency in the manner with which the state superior court or
supreme court handled his state petition for habeas corpus. See
Petition for Habeas Corpus (document no. 1), claims 12.B.1
through 12.C.6. Thus, through this proceeding, petitioner is
seeking to challenge the procedures relating to, and ultimately
the results of, state proceedings that were collateral to his
underlying criminal trial.
With one notable exception, every circuit court of appeals
that has addressed this issue has concluded that the writ of
habeas corpus is not an appropriate means by which to challenge
alleged deficiencies in a state court proceeding that was
collateral to the petitioner's trial. See, e.g., Conner v.
Director of Div. of Adult Corrections, 870 F.2d 1384, 1386-87
(8th Cir. 1989); Bryant v. State of Maryland,
848 F.2d 492, 493
(4th Cir. 1988); Spradlev v. Dugger,
825 F.2d 1566, 1568 (11th
Cir. 1987); Kirbv v. Dutton,
794 F.2d 245, 247-48 (6th Cir.
1986); Vail v. Procunier,
747 F.2d 277, 277-78 (5th Cir. 1984).
In 1984, however, the Court of Appeals for the First Circuit held
that there are circumstances under which a petitioner could
attack state post-conviction proceedings in a federal habeas
petition. Dickerson v. Walsh,
750 F.2d 150, 152-53 (1st Cir.
1984) .
In Dickerson, the petitioner challenged the Commonwealth of
Massachusetts' post-conviction review procedure applicable to
capital defendants. Specifically, Dickerson claimed that while
capital defendants must seek leave to appeal a denial of post
conviction relief, non-capital defendants have an appeal to the
Massachusetts Court of Appeals as a matter of right. The
distinction between the manner in which post-conviction appeals
might be pursued, said Dickerson, violated the egual protection
clause of the Fourteenth Amendment. The district court concluded
that the challenged state procedure did not violate the
Fourteenth Amendment and, therefore, denied Dickerson's
application for a certificate of probable cause. Dickerson
appealed.
In reviewing Dickerson's appeal, the court of appeals
acknowledged that a number of other circuit courts of appeal had
"refused to consider attacks on post-conviction proceedings by
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habeas petitions on the ground that errors or defects in a state
post-conviction proceeding do not ipso facto render a detention
unlawful." Id., at 152. The court went on, however, to conclude
that such a practice was not appropriate.
While this position is appealing at first blush, on
analysis we find that it is neither consonant with the
basic policies of habeas corpus relief nor Supreme
Court rulings. . . . The fact that a petitioner's
underlying claim can only be addressed in state court
does not give a state the license to administer its
laws in an unconstitutional fashion.
Id., at 153.
Here, however, petitioner does not challenge a state
procedural rule or the manner in which the State of New Hampshire
administers its post-conviction procedures. Nor does petitioner
assert that any of the alleged deficiencies identified in his
petition precluded him from obtaining state court review of his
state habeas petition. Instead, unlike the petitioner in
Dickerson, the petitioner in this case challenges a number of
procedural rulings issued by the state habeas court. As the
State has observed in its objection to petitioner's motion for
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sanctions (document no. 15), what the petitioner challenges in
this proceeding is the "propriety of a particular judge's
[discretionary] rulings which were rendered on a particular set
of facts." Id., at 3. Critically, none of the issues raised by
petitioner suggests that he was denied a full and meaningful
opportunity to file (and have decided) his state petition for
habeas relief. Instead, his claims focus exclusively on the
habeas court's failure to sanction the State for alleged
violations of various procedural orders, the court's failure to
seek criminal prosecution of a state agent for his alleged
perjury, and the court's alleged failure to reguire the State to
answer his petition in a more timely manner.
Conseguently, even if Dickerson remains good law and state
inmates may employ 28 U.S.C. § 2254 to challenge certain
constitutional deficiencies in state collateral review
procedures, the court concludes that, at least in this case,
petitioner cannot utilize the writ of habeas corpus to litigate
what he perceives to have been errors of judgment made by the
judge presiding over his state habeas petition that are not of
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constitutional magnitude and that are not related to his
confinement. See, e.g., Kirbv, 794 F.2d at 247-48 ("Though the
ultimate goal in this case, as in Dickerson, is release from
confinement, the result of habeas review of the specific issues
before us is not in any way related to the confinement. We
decline to allow the scope of the writ to reach this second tier
of complaints about deficiencies in state post-conviction
proceedings. We find the Williams stance persuasive in light of
the history of the scope of the writ as discussed in Preiser and
our own hesitancy to enlarge the scope of the writ of habeas
corpus without specific Supreme Court guidance."). Dismissal is
particularly appropriate in this case since petitioner, unlike
the petitioner in Dickerson, was afforded a full opportunity to
present all the claims raised in his petition, given a hearing on
the matter, provided with a written opinion in which the court
explained the basis for its denial of his petition, and permitted
to appeal that decision to the State's highest court.
Petitioner's claims regarding his state court habeas
petition all relate to discretionary decisions made by the
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presiding judge, each of which was collateral to the merits of
petitioner's claims concerning alleged deficiencies in his
criminal trial (i.e., the alleged ineffectiveness of trial
counsel) . Thus, unlike Dickerson, this case does not involve a
claim that the State has "administer[ed] its laws in an
unconstitutional fashion." Dickerson, 750 F.2d at 153. See also
Cross v. Cunningham,
87 F.3d 586, 588 (1st Cir. 1996) (rejecting
petitioner's claim that state's alleged violation of Interstate
Agreement on Detainers was cognizable in habeas corpus proceeding
and observing that the "IAD provision at issue here has nothing
to do with securing a fair trial, and [petitioner] makes no claim
that the alleged IAD violation actually impaired his ability to
prepare a defense or to prosecute his appeal.") (emphasis
supplied).
Accordingly, the court holds that claims 12.B.1 through
12.C.6 are not cognizable under 28 U.S.C. § 2254. In short,
those claims fail to assert that petitioner "is in custody in
violation of the Constitution or laws or treaties of the United
States."
28 U.S.C. § 2254(a).
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Conclusion
As to claims 12.B.1 through 12.C.6, the petition for writ of
habeas corpus is denied. As to claims 12.A.1 through 12.A.8, the
State shall, on or before December 18, 2000, file with the court
either: (a) a statement informing the court that an evidentiary
hearing is necessary to resolve one or more genuinely disputed
factual guestions; or (b) a motion for summary judgment, with a
supporting memorandum of law. If the State believes that a
transcript of the hearing on petitioner's state court habeas
petition is relevant, it shall produce that transcript (at its
expense) and submit copies of the same to the court and the
petitioner. See 28 U.S.C. § 2254(f) ("If the applicant, because
of indigence or other reason is unable to produce such part of
the record, then the State shall produce such part of the record
and the Federal court shall direct the State to do so by order
directed to an appropriate State official."); Rule 5 Governing
Section 2254 Cases ("The answer shall indicate what transcripts
. . . are available, when they can be furnished, and also what
proceedings have been recorded and not transcribed. There shall
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be attached to the answer such portions of the transcripts as the
answering party deems relevant.").
SO ORDERED.
Steven J. McAuliffe
United States District Judge
October 19, 2000
cc: James L. Mathison
Ann M. Rice, Esg.
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