Ellsworth v . Cunningham CV-99-132-JD 04/24/00
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Raymond Ellsworth
v. Civil N o . 99-132-JD
Opinion N o . 2000 DNH 098
Michael Cunningham, Warden,
N.H. State Prison and
Philip T . McLaughlin,
Attorney General
O R D E R
The respondents move to dismiss the petition for habeas
corpus relief filed by Raymond Ellsworth, asserting that the
petitioner’s third claim for relief was not exhausted in the
state courts. In particular, the respondents contend that the
petitioner failed to raise federal grounds, as to that claim, in
his appeal to the New Hampshire Supreme Court. The petitioner
objects, contending that the court was sufficiently notified of
the federal nature of his claim to satisfy the exhaustion
requirement.
As a prerequisite for habeas relief in federal court, an
applicant must exhaust the remedies available in state court as
to each claim for relief. See 28 U.S.C.A. § 2254(b)(1);
O’Sullivan v . Boerckel,
526 U.S. 838, 842 (1999). “To satisfy
the exhaustion requirement, a petitioner must present the federal
claim fairly and recognizably.” Casella v . Clemons,
___ F.3d ___,
2000 WL 287280 at *2 (1st Cir. March 2 2 , 2000).
The test for whether a petitioner’s claims have been exhausted is
substantive: “was the claim presented in such a way as to make
it probable that a reasonable jurist would have been alerted to
the existence of the federal question?” Scarpa v . Dubois,
38
F.3d 1 , 6 (1st Cir. 1994).
A petitioner is deemed to have satisfied the exhaustion
requirement in state court proceedings by:
(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.
Gagne v . Fair, 835 F.2d 6, 7 (1st Cir. 1987). In applying the
guidelines, the court must also determine whether the federal
claim was presented with sufficient specificity to constitute a
fair presentation. See Nadworny v . Fair,
872 F.2d 1093, 1097-98
(1st Cir. 1989). While some flexibility is apparent in the
exhaustion guidelines, the essential question is whether a
“reasonable jurist would have discerned the federal question from
a perusal of the petitioner’s relevant state-court filings” in
the specific context of each case. Adelson v . DiPaola,
131 F.3d
259, 262 (1st Cir. 1997).
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In this case, the petitioner’s third claim in support of
habeas relief states:
The state court’s refusal to provide Ellsworth with
(a) Blake’s therapy notes, (b) Montrose’s Spaulding
disciplinary/behavioral records, (c) records concerning
Montrose’s prior sexual victimization and treatment
maintained by Spaulding, DCYF, Dr. Spencer and others,
and (d) the critical incident report concerning
Montrose’s return to Spaulding on the day of one of the
alleged assaults is contrary to and involved an
unreasonable interpretation of the Supreme Court’s
decision in Pennsylvania v . Ritchie, 480 U.S. 3 9 ,
107
S.Ct. 989 (1987). Accordingly, Ellsworth was convicted
in violation of the due process clause of the
Fourteenth Amendment.
Petition at 2 0 , ¶ 84 (document n o . 1 ) . In his direct appeal to
the New Hampshire Supreme Court, Ellsworth raised the following
questions that are related to claim three in his petition:
3 . Should the trial court have found that (a) the
due process clauses of the State and National
Constitutions, and (b) Superior Court Rule 99 entitled
the defendant to discovery of an incident report
concerning the complainant’s early return to his
residential school on the day of one of the alleged
sexual assaults?
4 . Should the trial court have found that (a) the
due process clauses of the State and National
Constitutions, and (b) Superior Court Rule 99 entitled
the defendant to discovery of notes kept by the
complainant’s therapist concerning the complainant’s
initial accusation against the defendant when: [grounds
for seeking notes omitted]
5 . Should the trial court have found that (a) the
due process clauses of the State and National
Constitutions, and (b) Superior Court Rule 99 entitled
the defendant to discovery of records relating to the
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complainant’s prior sexual victimization by a person
other than the defendant?
6. Should the trial court have found that (a) the
due process clauses of the State and National
Constitutions, and (b) Superior Court Rule 99 entitled
the defendant to discovery of records concerning the
complainant’s course of treatment for his prior sexual
victimization (which might explain the complainant’s
knowledge of sexual facts)?
7 . Should the trial court have found that (a) the
due process clauses of the State and National
Constitutions, (b) Superior Court Rule 99 entitled the
defendant to discovery of the complainant’s
disciplinary records at the residential placement where
the defendant was employed?
Notice of Appeal at 6-7. In support of each of the quoted
questions, Ellsworth cited Pennsylvania v . Ritchie, 480 U.S. 39
(1987), along with New Hampshire cases. Therefore, Ellsworth
both cited the due process clause of the federal constitution and
relied on federal constitutional precedent.1
In his brief in support of his appeal to the supreme court,
1
The respondents do not address Ellsworth’s notice of
appeal, but instead argue that he failed to present the federal
claim in his brief. Despite the supreme court’s blanket ruling
that these claims and others (“a laundry list of complaints
regarding the trial court’s other discovery rulings”) were
“without merit and do not warrant further discussion,” Ellsworth
did not waive the claims by failing to adequately brief them.
State v . Ellsworth, 142 N.H. 710, 720 (1998). But cf. State v .
Hoag,
2000 WL 354190 at *4 (N.H. Apr. 7 , 2000) (“Any remaining
issues raised in the notice of appeal but not briefed are
waived.”)
4
Ellsworth argued that the trial court erred in refusing to
disclose the cited materials due to an incorrect legal standard
or an abuse of its discretion. Ellsworth relied on the legal
standard in State v . Gagne, 136 N.H. 101, 105 (1992). In Gagne,
the defendant contended that the trial court violated his state
and federal rights to due process by refusing to conduct an in
camera review of certain privileged documents. See
id. at 102.
The supreme court identified two issues related to the
defendant’s request for privileged materials: the showing
necessary to obtain review of privileged materials in discovery,
raising fourteenth amendment due process issues; and the showing
necessary to use the information at trial, raising sixth
amendment issues. See
id. at 104. The court analyzed both
issues in the context of federal law without reference to state
constitutional issues. See
id. at 104-05. Cf. State v . Ball,
124 N.H. 226, 232-33 (1983) (discussing the supreme court’s
obligation to review state constitutional issues separate from
federal constitutional issues).
Ellsworth’s reliance on Gagne in support of his federal due
process right to discover the privileged materials presented a
federal right through state court analysis. While that may be a
less obvious, and therefore risky, means of presenting a federal
constitutional issue in state court, reliance on state
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construction of federal law may still adequately present the
federal nature of the issue to the court. See Nadworny, 872 F.2d
at 1099. Despite the supreme court’s lack of analysis of the
issues Ellsworth raised, the federal nature of the issue is
unmistakable in Gagne. The court is satisfied that a reasonable
jurist would have been placed on notice of the federal due
process question raised by Ellsworth based on the notice of
appeal and the argument made in the brief, even if the citations
to federal authority in the notice of appeal were not considered.
Conclusion
For the foregoing reasons, the respondents’ motion to
dismiss (document n o . 21) is denied.
SO ORDERED.
Joseph A . DiClerico, J r .
District Judge
April 2 4 , 2000
cc: Andrew R. Schulman, Esquire
Richard J. Lehmann, Esquire
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