Mathison v . NH State Prison CV-98-457-M 04/30/01
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
James L . Mathison,
Petitioner
v. Civil N o . 98-457-M
Opinion N o . 2001 DNH 085
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 s e , 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. In his
petition, Mathison advances three arguments in support of his
requested relief: 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 subsequent state petition for habeas corpus
operated to deny him his constitutional rights to due process and
equal 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.
Factual Background and Procedural History
In July of 1990, Mathison 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, vacated those convictions,
since Mathison 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, Mathison 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. Mathison was again convicted on both
sexual assault counts, but acquitted on the perjury count. He
then appealed to the New Hampshire Supreme Court, which affirmed
his convictions. See State of New Hampshire v . Mathison, N o . 95-
245 (N.H. February 4 , 1996).
2
In April of 1997, Mathison filed a petition for writ of
habeas corpus in the New Hampshire Superior Court (Merrimack
County), 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 2 4 , 1997,
at which it heard testimony from witnesses and arguments on the
merits of the petition. By order dated November 2 4 , 1997, the
court denied Mathison’s request for habeas relief. See Mathison
v . Cunningham, N o . 97-E-0132 (Merrimack Sup. C t . November 2 4 ,
1997). Mathison 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,
N o . 98-013 (N.H. July 6, 1998). Mathison then filed a petition
for writ of habeas corpus in this court.
By order dated October 1 9 , 2000 (document n o . 1 8 ) , the court
observed that Mathison’s due process and equal protection claims
all relate to discretionary and procedural decisions made during
the course of his state court habeas corpus proceeding - a
collateral challenge to the alleged deficiencies in his criminal
trial.
3
There i s , 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 n o . 1 ) , claims 12.B.1 through 12.C.6.
Thus, through this proceeding, petitioner is seeking to
challenge the procedures relating t o , and ultimately
the results o f , state proceedings that were collateral
to his underlying criminal trial.
Id. at 8 (emphasis in original). Distinguishing Dickerson v .
Walsh, 750 F.2d 150 (1st Cir. 1984), the court concluded that,
under the facts alleged in Mathison’s petition, those due process
and equal protection claims were not cognizable in a § 2254
petition.
Consequently, 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
constitutional magnitude and that are not related to
his confinement. 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.
4
Id. at 11-12 (citation omitted).
Accordingly, the court denied Mathison’s petition for habeas
relief as to his due process and equal protection claims. What
remains, then, is his claim to have been denied effective
assistance of counsel at his third criminal trial. The State
acknowledges that, as to that claim, Mathison has met the
exhaustion requirements of § 2254(b)(1). Nevertheless, because
it asserts that Mathison cannot meet the requirements of
§ 2254(d), the State says it is entitled to judgment as a matter
of law. Mathison has not objected and the time for filing any
objection lapsed nearly a month ago.
Discussion
I. Legal Framework.
To prevail on his § 2254 petition with regard to his claims,
Mathison must demonstrate that the state court adjudication of
his habeas petition “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, he must show that the state court’s
5
resolution of his petition was “contrary to, or involved an
unreasonable application o f , clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1). The Supreme Court recently explained the
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, 529 U.S. 362, 412-13 (2000). With those
principles in mind, the court considers Mathison’s petition.
II. The State Habeas Court’s Decision.
The parties agree that each of the specific instances of
alleged ineffective assistance Mathison points to in his § 2254
6
petition, was presented to and addressed by the state habeas
court.
The petitioner claims that he was denied effective
assistance of counsel in his third trial because his
attorney: (1) failed to introduce certain photographs
of scars on his body, which were introduced at the
first and second trials; (2) failed to call Pamela
Bouchard, a defense investigator, who testified at the
first two trials; (3) failed to call certain other
character witnesses; (4) failed to take advantage of
the prosecutor’s use of a standard phrase the
prosecutor uses at the beginning of his closing
argument; (5) failed to object and request a mistrial
when a witness referred to one of the [petitioner’s]
prior trials; (6) failed to challenge “inappropriate
behavior” by the prosecutor; [and] (7) f[a]iled to
include the prosecutor’s introduction of a certain
photograph of the accuser in the notice of appeal.
Mathison v . Cunningham, at 1-2.1 See also Petitioner’s Notice of
Appeal to New Hampshire Supreme Court (Jan. 6, 1998) (raising the
same issues in his appeal to the state supreme court).
1
Those claims correspond to the following claims raised
in Mathison’s § 2254 petition: 12.A.1 (body scars); 12.A.4
(Pamela Bouchard); 12.A.8 (character witnesses); 12.A.5 (closing
argument); 12.A.6 (reference to prior trial); 12.A.3
(prosecutorial misconduct); and 12.A.7 (notice of appeal). As to
his final claim of ineffective assistance - counsel’s alleged
“failure to challenge the accuser’s direct material perjury,”
habeas petition at 12.A.2 - Mathison says it was subsumed within
his assertion that counsel failed to challenge the prosecutor’s
“inappropriate behavior” (i.e., subornation of perjury), treated
by the state courts as such, and, therefore, properly exhausted.
See Petition for Habeas Corpus, at para. 12.A.2.
7
A. § 2254(d)(2) - Unreasonable Determination of Facts.
Mathison does not appear to challenge the state court’s
denial of his habeas petition on grounds that it was based upon
“an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. §
2254(d)(2). Even if he were, however, nothing in the record
would support such a claim.
Most of the pertinent facts underlying Mathison’s legal
claims are undisputed. For example, all agree that Mathison’s
trial counsel did not use the phrase, “oh what a tangled web we
weave,” in his closing as Mathison had requested. And, the State
does not deny that Pamela Bouchard was not called as a defense
witness at Mathison’s third trial, or that counsel elected not to
introduce evidence of Mathison’s scars, or that counsel did not
include in the notice of appeal to the state supreme court the
evidentiary issue concerning the introduction, at trial, of the
photograph of Mathison’s accuser. As to the few factual issues
that were actually in dispute (e.g., whether Mathison instructed
counsel to introduce evidence of his scars or whether Mathison
asked counsel to call M s . Bouchard as a witness), there was
8
conflicting testimony and the state court was required to assess
the relative credibility of the witnesses and ascribe such weight
to their testimony as it deemed appropriate. Nothing in the
record or Mathison’s submissions suggests that the state court’s
factual findings were “unreasonable.” See 28 U.S.C. § 2254(e)(1)
(“In a proceeding instituted by an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of
a State court, a determination of a factual issue made by a State
court shall be presumed to be correct. The applicant shall have
the burden of rebutting the presumption of correctness by clear
and convincing evidence.”). See also Coombs v . State of Maine,
202 F.3d 14 (1st Cir. 2000).
B. § 2254(d)(1) - Contrary to Established Federal Law.
The state habeas court neither applied a rule of law that
contradicted the Supreme Court’s holdings in cases involving
alleged ineffective assistance of counsel, nor did it reach a
different result based upon a set of materially indistinguishable
facts. To the contrary, the state court correctly identified and
applied the proper legal standards, as articulated in Strickland
9
v . Washington, 466 U.S. 668 (1984). Specifically, the state
habeas court observed:
In order to prevail on his claim that he received
ineffective assistance of counsel, the petitioner must
satisfy a two-pronged test. The petitioner must first
show that his trial attorney’s performance was
deficient, and second that the attorney’s deficient
performance resulted in actual prejudice to the
petitioner.
To show deficient performance, the attorney’s conduct
must fall below an objective standard of reasonable
competence. . . . To establish prejudice, the
petitioner must demonstrate that there is a reasonable
probability that the result of the proceedings would
have been different had he[] received competent
representation.
Mathison v . Cunningham, at 2-3 (citations and internal quotation
marks omitted). See also Strickland, 466 U.S. at 6 8 7 , 694.
Based upon the facts produced before the state habeas court,
one cannot reasonably conclude that a different outcome of that
proceeding was mandated by Supreme Court precedent.
Consequently, Mathison is not entitled to habeas relief under the
“contrary to” clause of § 2254. See, e.g., Williams v . Matesanz,
230 F.3d 4 2 1 , 426 (1st Cir. 2000) (“A state court decision that
applies the correct legal rule but reaches an independent outcome
10
on different facts cannot be deemed to run at cross purposes to
Supreme Court precedent. Accordingly, section 2254(d)(1)’s
‘contrary to’ prong cannot be used here to spearhead habeas
relief.”). As the Supreme Court observed in Williams v . Taylor,
[A] run-of-the-mill state-court decision applying the
correct legal rule from our cases to the facts of a
prisoner’s case would not fit comfortably within
§ 2254(d)(1)’s “contrary to” clause. Assume, for
example, that a state-court decision on a prisoner’s
ineffective-assistance claim correctly identifies
Strickland as the controlling legal authority and,
applying that framework, rejects the prisoner’s claim.
Quite clearly, the state-court decision would be in
accord with our decision in Strickland as to the legal
prerequisites for establishing an ineffective-assistance claim, even assuming the federal court
considering the prisoner’s habeas petition might reach
a different result applying the Strickland framework
itself. It is difficult, however, to describe such a
run-of-the-mill state-court decision as “diametrically
different” from, “opposite in character or nature”
from, or “mutually opposed” to Strickland, our clearly
established precedent. Although the state-court
decision may be contrary to the federal court’s
conception of how Strickland ought to be applied in
that particular case, the decision is not “mutually
opposed” to Strickland.
Williams, 529 U.S. at 406.
11
C. § 2254(d)(1) - Unreasonable Application of Federal Law.
Next, the court must consider whether the state habeas
court’s decision involved “an unreasonable application of clearly
established Federal law, as determined by the Supreme Court of
the United States.” 28 U.S.C. § 2254(d)(1). “This reduces to a
question of whether the state court’s derivation of a case-
specific rule from the Court’s generally relevant jurisprudence
appears objectively reasonable.” O’Brien v . DuBois,
145 F.3d 1 6 ,
25 (1st Cir. 1998). As the Supreme Court has pointed out,
however, “the most important point is that an unreasonable
application of federal law is different from an incorrect
application of federal law.” Williams,
529 U.S. at 410 (emphasis
in original). In light of that admonition, the Court held:
Under § 2254(d)(1)’s “unreasonable application” clause,
then, a federal habeas court may not issue the writ
simply because that court concludes in its independent
judgment that the relevant state-court decision applied
clearly established law erroneously or incorrectly.
Rather, that application must also be unreasonable.
Id. at 411.
Here, the record reveals that the state court’s decision
denying Mathison habeas relief was not the product of an
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“unreasonable application” of the governing federal law. To the
contrary, the state court’s decision addresses each of Mathison’s
claims, applies the appropriate legal standard, and appears to
reach a reasonable, plausible, well-supported conclusion.
First, with regard to most of Mathison’s claims, the state
court concluded (after hearing testimony from both Mathison and
his trial attorney) that trial counsel’s challenged decisions
were the “result of reasonable tactics, not incompetence.”
For instance, the decision not to introduce the
evidence of the defendant’s scars as a way of
impeaching the victim, or the decision not to attempt
to “throw off” the prosecutor by hoisting him by his
“oh what a tangled web we weave” argument, and the
decision not to draw attention to the reference to a
prior trial by a witness - were all tactical decisions
that are reasonable when one considers the blueprint of
the criminal jury trial.
Mathison v . Cunningham, at 3 . In light of the testimony
introduced at the hearing on Mathison’s habeas petition, it
cannot be said that those conclusions were themselves
unreasonable or that they were the product of an unreasonable
application of the Strickland standard. See Transcript of
Hearing on a Petition for Habeas Corpus (October 2 4 , 1997). See
13
generally Lema v . United States, 987 F.2d 4 8 , 54-55 (1st Cir.
1993).
Next, the state habeas court rejected Mathison’s claim that
trial counsel rendered constitutionally deficient assistance by
having failed to raise an evidentiary issue in Mathison’s notice
of appeal. Mathison claims that the prosecutor in his underlying
criminal trial improperly introduced a photograph of Mathison’s
accuser. The trial court admitted that photograph over the
objection of Mathison’s counsel and Mathison claims that counsel
should have presented that evidentiary issue to the state supreme
court on appeal. The state habeas court rejected Mathison’s
claim on two grounds. First, it concluded that the photograph
was properly admitted at Mathison’s criminal trial and,
therefore, “the fact that the photo issue was not appealed shows
a reasonable understanding of the rules of evidence.” Mathison
v . Cunningham, at 4 . Additionally, the court concluded that even
if his counsel’s performance was deficient and the issue should
have been raised on appeal, Mathison had failed to show that he
was prejudiced by counsel’s failure to do s o . Id. See also
Strickland,
466 U.S. at 697.
14
Finally, applying the “prejudice” prong of the Strickland
test more broadly, the state habeas court determined that none of
the alleged deficiencies in Mathison’s third trial served to
undermine confidence in the jury’s verdict. In other words, the
court concluded that Mathison failed to show that there is a
reasonable probability that, “but for counsel’s unprofessional
errors, the result of the proceeding would have been different,”
Strickland 466 U.S. at 6 9 4 , or that such alleged errors were
sufficient to “undermine confidence in the [trial’s] outcome.”
Id. In support of that conclusion the state habeas court
observed that although Mathison’s second criminal trial suffered
from none of the alleged deficiencies present in his third trial,
he was still convicted of the sexual assault charges against him.
That is to say, although Pamela Bouchard did testify at
Mathison’s second trial, character witnesses did testify at the
second trial, photographs of his scars were introduced and his
accuser was confronted with them (all matters Mathison claims
were lacking in his third trial), the jury still returned a
verdict of guilty.2
2
Mathison’s convictions following his second trial were
vacated by the state supreme court on procedural grounds, after
the court determined that Mathison was entitled t o , but failed to
receive, a transcript of his first trial.
15
In light of the foregoing, even if this court disagreed with
the state habeas court’s ultimate resolution of Mathison’s
petition (and it does n o t ) , it cannot conclude that the state
court’s decision denying Mathison’s petition for habeas relief
involved, or was the product o f , an unreasonable application of
clearly established law. Rather, the state court correctly
identified and reasonably applied the governing Supreme Court
precedent in arriving at its conclusion that Mathison was not
denied effective assistance of counsel at his third criminal
trial.
Conclusion
The record of Mathison’s criminal trial and his subsequent
state court habeas proceeding reveals that the state court’s
denial of his petition for habeas corpus relief was not based
upon an unreasonable determination of the facts in light of the
evidence presented to i t , nor was that decision contrary to
clearly established federal law, nor did it involve an
unreasonable application of that law. Consequently, the State is
entitled to judgment as a matter of law and its motion for
summary judgment (document n o . 20) is granted. The Clerk of
16
Court shall enter judgment in accordance with this order and
close the case.
SO ORDERED.
Steven J. McAuliffe
United States District Judge
April 3 0 , 2001
cc: James L. Mathison, pro se
Ann M. Rice, Esq.
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