Drew v. Warden

Drew v . Warden                        CV-03-087-JD   05/28/03
               UNITED STATES DISTRICT COURT FOR THE
                     DISTRICT OF NEW HAMPSHIRE


Phillip R. Drew

     v.                                  Civil N o . 03-87-JD
                                         Opinion N o . 

Warden, Northern Correctional
Facility, New Hampshire State Prison

                             O R D E R


     Phillip R. Drew, proceeding pro s e , seeks habeas corpus

relief, pursuant to 

, from the sentence imposed

following his guilty plea to a charge of driving while certified

as an habitual offender in violation of New Hampshire Revised

Statute Annotated (“RSA”) § 262:23. Drew’s claims arise from the

structure of RSA 262:23, which provided for different minimum

sentences depending on the defendant’s history of prior motor

vehicle convictions.1   The Warden moves for summary judgment.

                        Standard of Review

     Summary judgment is appropriate in habeas proceedings, as in

other civil actions, when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any



     1
      RSA 262:23 has been amended, effective after Drew was
charged as an habitual offender. Therefore the amendments are
not at issue here.
material fact and that the moving party is entitled to a judgment

as a matter of law.”   Fed. R. Civ. P. 56(c); see also Fed. R.

Civ. P. 81(a)(2); Rule 11 of the Rules Governing § 2254 Cases.

Additional standards apply to the court’s review of summary

judgment motions in habeas cases. See, e.g., Smith v . Cockrell,

 6 1 , 668 (5th Cir. 2002).

     If the state court adjudicated the petitioner’s federal

claims on the merits, the federal court, considering the same

claims on habeas review, must decide whether the state court

decision “was contrary t o , or involved an unreasonable

application o f , clearly established Federal law,” or “resulted in

a decision based on an unreasonable determination of the facts

. . . .”   § 2254(d); see also Price v . Vincent, 

,

at *3 (U.S. May 1 9 , 2003).   On the other hand, if the state court

did not address properly preserved federal claims on the merits,

the federal court reviews the decision under a de novo standard.

Gruning v . Dipaolo, 

 9 , 71 (1st Cir. 2002).

“Furthermore, . . . state-court determinations of factual issues

‘shall be presumed to be correct,’ unless the petitioner rebuts

the presumption ‘by clear and convincing evidence.’”      Niland v .

Hall, 

 (1st Cir. 2002) (quoting § 2254(e)(1)).




                                   2
                            Background
    Philip Drew was indicted on April 1 5 , 1999, on one count of
driving after being certified as an habitual offender, in
violation of RSA 262:23 (1993).       He was also charged with driving
while intoxicated, subsequent offense, in violation of RSA
265:82-b.   He pled guilty to the charges in May of 2000.      Before
he was sentenced, Drew moved to withdraw his guilty pleas on the
ground that he was not in his right mind at the time of the plea.
The motion was denied in March of 2001.

    Drew’s motor vehicle record included five prior convictions
for driving while intoxicated and a prior habitual offender
conviction.   Following his sentencing hearing on May 3 , 2001,
Drew was sentenced to two to four years on the habitual offender
offense, stand committed.   He was sentenced to a concurrent
twelve-month sentence on the driving while intoxicated
conviction.

    Drew filed a petition for a writ of habeas corpus in state
court, challenging the sufficiency of the indictment, because it
did not include the predicate prior convictions used in his
sentencing.   He also challenged his sentence on the habitual
offender conviction and argued that his trial counsel was
ineffective. The Superior Court concluded that he had waived his
claim challenging the sufficiency of the affidavit by pleading
guilty and that he had also procedurally defaulted the claim by

                                  3
not raising it in a direct appeal from the denial of his motion

to withdraw his guilty plea. The court further ruled that

because Drew could not show that he was prejudiced by his

counsel’s failure to challenge the sufficiency of the indictment,

his ineffective assistance of counsel claim was denied.

     On appeal to the New Hampshire Supreme Court, Drew raised

four issues. He challenged the sufficiency of the indictment and

the legality of his sentence in the absence of allegations of his

prior convictions; he asserted ineffective assistance of counsel;

and he claimed that the “rule of lenity” should allow him the

lesser punishment provided under RSA 262:62.    In support of his

claims, Drew cited state court cases and Apprendi v . New Jersey,

 (2000); Strickland v . Washington, 

 6 8 , 697

(1984); Bell v . United States, 

 (1955).    The New

Hampshire Supreme Court deferred screening of Drew’s appeal

pending decisions in two other cases, State v . LeBaron and State

v . Riendeau. After Riendeau was dismissed and the supreme court

issued a decision in LeBaron, the court summarily affirmed the

Superior Court’s decision denying Drew’s habeas petition, noting

that it had considered the effect of LeBaron on Drew’s appeal.




                                  4
                                  Discussion

         Drew raises the same claims in support of his habeas

petition here that he raised on appeal to the New Hampshire

Supreme Court. The New Hampshire Supreme Court summarily

affirmed the Superior Court’s decision denying Drew’s habeas

petition, and the Superior Court did not address federal claims.
Because the New Hampshire Supreme Court did not adjudicate the

federal claims on the merits, the claims are subject to de novo

review here. See Gruning v . Dipaolo, 

 9 , 71 (1st Cir.

2002).


A.   Sufficiency of the Indictment and Legality of Sentence

         Drew contends that RSA 262:23 (1993) provided penalties for
two crimes: a felony under Part I and a misdemeanor under part
III. 2       Based on that statutory interpretation, he argues that the


         2
             The applicable version of RSA 262:23 provided as follows:

         I . It shall be unlawful for any person to drive any
         motor vehicle on the ways of this state while an order
         of the director or the court prohibiting such driving
         remains in effect. If any person found to be an
         habitual offender under the provisions of this chapter
         is convicted of driving a motor vehicle on the ways of
         this state while an order of the director or the court
         prohibiting such operation is in effect, he shall be
         sentenced, notwithstanding the provisions of RSA title
         LXII, to imprisonment for not less than one year nor
         more than 5 years. No portion of the minimum mandatory
         sentence shall be suspended, and no case brought to

                                       5
indictment charging him under RSA 262:23 was constitutionally


    enforce this chapter shall be continued for sentencing;
    provided, however, that any sentence or part thereof
    imposed pursuant to this section may be suspended in
    cases in which the driving of a motor vehicle was
    necessitated by situations of apparent extreme
    emergency which required such operation to save life or
    limb. Any sentence of one year or less imposed
    pursuant to this paragraph shall be served in a county
    correctional facility. Any sentence of more than one
    year imposed pursuant to this paragraph shall be served
    in the state prison.

     I I . For the purpose of enforcing this section, in any
    case in which the accused is charged with driving a
    motor vehicle while his license, permit or privilege to
    drive is suspended or revoked, or is charged with
    driving without a license, the court before hearing
    such charge shall determine whether such person has
    been held an habitual offender and by reason of such
    holding is barred from driving a motor vehicle on the
    ways of this state. For the purposes of this section,
    in determining whether the person has been held an
    habitual offender and by reason of such holding is
    barred from driving a motor vehicle on the ways of this
    state, a certified copy of the individual's motor
    vehicle record on file with the division shall be as
    competent evidence in any court within this state as
    the original record would be if produced by the
    director as legal custodian thereof.

     III. Notwithstanding paragraph I , any person who
    qualifies under RSA 259:39 shall not be subject to the
    minimum mandatory provisions of paragraph I ; provided,
    however, that any such person may be sentenced to one
    year or less. Any person incarcerated on June 8 , 1992,
    pursuant to certification as an habitual offender under
    RSA 259:39, who does not have a conviction under RSA
    265:82 or any misdemeanor or felony motor vehicle
    convictions pursuant to RSA title X X I , may apply
    immediately to the superior court for sentence review
    and reduction.

                                6
insufficient because it did not include the predicate offenses

necessary to charge a felony under the statute. The Superior

Court ruled that Drew had procedurally defaulted this claim by

pleading guilty and then failing to raise the issue in an appeal

of the denial of his motion to withdraw his guilty plea.      Because

the Superior Court decision was the last reasoned decision on the

issue, the court looks through the summary affirmance to the

Superior Court decision. See Gunter v . Maloney, 

 4 , 80

(1st Cir. 2002) (citing Ylst v . Nunnemaker, 

 9 7 , 801-04

(1991)).

     Ordinarily, a habeas petitioner’s failure to satisfy the

state’s procedural requirements bars consideration of the claim

in federal court unless the petitioner can show both cause for

the default and resulting prejudice. See Edwards v . Carpenter,

 (2002) (citing Coleman v . Thompson, 

 (1991)).   The Warden, however, has not raised the issue

of procedural default. Because the procedural default doctrine

is a judicially made rule, which supports the policies of comity

and judicial economy, it is not jurisdictional, and the court

need not consider the question sua sponte. See, e.g., Massaro v .

United States, 

 (page references not available)

(U.S. Apr. 2 3 , 2003); Edwards, 

.

     “An indictment must set forth each element of the crime that

it charges.”   Almendarez-Torres v . United States, 

 2 4 ,

                                  7
228 (1998).     An indictment “need not set forth factors relevant

only to the sentencing of an offender found guilty of the charged

crime.”   Id.   However, “‘any fact (other than prior conviction)

that increases the maximum penalty for a crime must be charged in

an indictment, submitted to a jury, and proven beyond a

reasonable doubt.’"    Ring v . Arizona, 

 8 4 , 600 (2002)

(quoting Jones v . United States, 

 2 7 , 243 n.6 (1999));

see also Apprendi v . New Jersey, 

 (2000).

Factors that increase the statutory minimum sentence within the

applicable sentencing range need not be charged in the indictment

or found by the jury.    See Harris v . United States, 

 (2002).

     RSA 262:23 describes the offense of driving after

certification as an habitual offender and provides penalties.

The elements of the offense are “(1)that an habitual offender

order barring the defendant from driving a motor vehicle was in

force; (2) that the defendant drove a motor vehicle on the ways

of this State while that order remained in effect; and (3) that

the defendant did so with knowledge of his status as an habitual

offender.”    LeBaron, 808 A.2d at 543 (quoting State v . Crotty,

 (1991)).    Drew does not dispute that the

indictment charged him with those elements and that he pled




                                   8
guilty to the offense as charged.3

     Part I of RSA 262:23 provides a sentence of “not less than

one year nor more than 5 years.”       Part III of RSA 262:23 provides

an exception to Part I in that an habitual offender defendant who

does not have certain specified prior convictions is subject to a

sentence of one year or less.   Drew contends that because the
specified prior convictions, which he admits he had, prevented

him from being eligible for the sentencing exception provided in

Part I I I , the prior convictions were elements of the crime, which

were not charged in the indictment, in violation of the Sixth and

Fourteenth Amendments.

     The New Hampshire Supreme Court recently interpreted RSA

262:23, guided by the analysis in Almendarez-Torres.      See

LeBaron, 808 A.2d at 543-44.    The court concluded that Part I

states the offense and the elements of the offense while Part III

only provides an exception to the sentencing requirements of Part

I.   Id.   The court held that the prior convictions specified in
Part III are sentencing factors and are not elements of the

offense stated in Part I .   United States Supreme Court precedent

would not require a different result in this case.

     Therefore, the indictment charging Drew with violation of



     3
      The indictment also includes the designation of “RSA Ch
262:23 Felony.”

                                   9
RSA 262:23 was constitutionally sufficient. His sentence, based

on prior convictions, was within the range provided in Part I ,

and was constitutional. The Warden is entitled to summary

judgment with respect to Drew’s claims based on the sufficiency

of the indictment and the legality of his sentence.


B.   The Rule of Lenity

     “In a criminal case, the rule of lenity requires a court to

resolve true statutory uncertainty in the accused’s favor.”

United States v . Ahlers, 

 4 , 62 (1st Cir. 2002).

Federal courts, however, lack power to apply the rule of lenity

to a state statute. Sabetti v . Dipaolo, 

 6 , 19 (1st Cir.

1994).    Therefore, Drew’s claim based on the rule of lenity is

denied.



C.   Ineffective Assistance of Counsel

     Drew contends that his counsel was constitutionally

ineffective for failing to challenge the sufficiency of the

indictment based on the lack of allegations of prior convictions.

Constitutionally ineffective assistance of counsel is shown if

“counsel’s representation fell below an objective standard of

reasonableness,” and 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 688.

                                 10
Counsel’s conduct is entitled to a “strong presumption” of

professional reasonableness. Bell v . Cone, 

(2002).

      As discussed above, the New Hampshire Supreme Court’s

interpretation of RSA 262:23 in LeBaron is contrary to the

interpretation Drew urges in support of his claim.      The New

Hampshire Supreme Court relied on its decision in LeBaron in its

summary affirmance of the denial of Drew’s state habeas petition.

Drew’s counsel cannot be faulted for failing to pursue an

argument that the New Hampshire Supreme Court has rejected.


                             Conclusion

      For the foregoing reasons, the respondent’s motion for

summary judgment (doc. n o . 7 ) is granted.   The clerk of court

shall enter judgment accordingly and close the case.

      SO ORDERED.




                                        Joseph A . DiClerico, J r .
                                        United States District Judge
May 2 8 , 2003

cc:   Phillip R. Drew, pro se
      Stephen D. Fuller, Esquire




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