UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Joel G. Verenbec
v. Civil No. 11-cv-161-LM
Opinion No. 2015 DNH 127
Warden, Northern New Hampshire
Correctional Facility
O R D E R
Before the court is § 2254 petitioner Joel Verenbec’s
motion to reconsider (doc. no. 40) the court’s September 25,
2014 Order (doc. no. 39), to the extent that the Order denied
Verenbec’s request for an evidentiary hearing and granted the
respondent warden’s motion for summary judgment on all but one
claim for relief. The warden has not objected to Verenbec’s
motion for reconsideration (doc. no. 40).
Local Rule 7.2(d) states that a “motion to reconsider an
interlocutory order of the court . . . shall demonstrate that
the order was based on a manifest error of fact or law.”
Verenbec asserts, among other things, that this court erred in
concluding that the state courts adjudicated any of his claims
on the merits, and in declining to hold an evidentiary hearing
on the claims resolved in the September 25, 2014, Order (doc.
no. 39). Additionally, Verenbec asserts that there are factual
issues that warrant resolution only after an evidentiary
hearing, and that this court’s rejection of his claims will
result in the continued incarceration of an innocent man.
I. Claims Adjudicated on the Merits in State Courts
This court’s review of claims adjudicated on the merits in
the state courts is limited to the state court record. See
Cullen v. Pinholster, 131 S. Ct. 1388, 1398, 1400 (2011); see
also
28 U.S.C. § 2254(d)(1). In the September 25, 2014 Order
(doc. no. 39), this court found that Claims 3(a)-(b), Claim 3(d)
(in part), and Claims 3(e)-(i), were adjudicated on the merits
in the state courts. This court has reviewed the record in
light of Verenbec’s assertions and finds no error in its
determination regarding which claims had been adjudicated on the
merits by the state courts. Therefore, as to each of those
claims, a hearing would not yield evidence that could be deemed
relevant to the resolution of Verenbec’s § 2254 petition.
The court has reviewed the record as to its resolution of
each of those claims determined on the merits in the state
courts and finds no error in its previous ruling that the state
court’s determination was reasonable and not contrary to any
Supreme Court precedent. Accordingly, as to Claims 3(a)-(b),
Claims 3(e)-(i), and Claim 3(d) (in part), the motion to
reconsider the summary judgment order is denied.
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II. Remaining Claims
Of the claims resolved in the September 25, 2015 Order
(doc. no. 39), only Claim 2 and a portion of Claim 3(d)
(relating to Attorney Maggiotto’s failure to press his motion
for a recess) were not adjudicated on the merits in the state
courts. As to those remaining claims, this court concludes that
Verenbec had not made the showing necessary to demonstrate the
existence of any genuine issue of material fact, which could
warrant an evidentiary hearing and reconsideration of the
summary judgment order. A “habeas judge, before granting an
evidentiary hearing,” must determine whether the petitioner has
shown that “his allegations would entitle him to relief and
[that] the hearing is likely to elicit the factual support for
those allegations.” Teti v. Bender, 507 F.3d 50, 62 (1st Cir.
2007). Section 2254(e)(2) further provides that if a petitioner
moves for an evidentiary hearing to develop the factual basis
for a claim that he failed to develop in the state courts, the
federal court must deny the request unless the petitioner shows
that the claim relies on “a factual predicate that could not
have been previously discovered through the exercise of due
diligence,”
28 U.S.C. § 2254(e)(2)(A)(ii), and that the “facts
underlying the claim would be sufficient to establish by clear
and convincing evidence that but for constitutional error, no
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reasonable fact-finder would have found the applicant guilty of
the underlying offense.” Id. § 2254(e)(2)(B).
Verenbec has not made the requisite showing under
§ 2254(e)(2) as to the portion of Claim 3(d) dealing with
Attorney Maggiotto’s failure to press his motion for recess.
Verenbec has not shown that he exercised due diligence when he
failed to develop this claim in the state courts. Verenbec
obtained unsworn witness statements regarding his claim that two
jurors sitting in the jury box appeared to hear and react to the
victim’s crying outside of the courtroom and her continued
crying or sniffling as she entered the courtroom, but Verenbec
has not shown why he could not obtain sworn statements.
Furthermore, he has not shown by clear and convincing evidence
that but for counsel’s failure to press his motion for a recess
more vigorously, no reasonable juror would have found him
guilty. Such a showing would require Verenbec to demonstrate
that, had the trial court granted a recess immediately before
the eleven-year-old victim began testifying (thereby mitigating
any impact that her crying before testifying may have had on
jurors), no reasonable juror would have believed her testimony
that Verenbec sexually assaulted her. Verenbec has failed to
make the requisite showing here. Accordingly, Verenbec has not
shown that an evidentiary hearing in this court is properly held
on Claim 3(d) with respect to counsel’s failure to press his
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motion for a recess, and Verenbec has not shown that there is
any error in this court’s underlying ruling granting summary
judgment on Verenbec’s Sixth Amendment ineffective assistance of
counsel claim relating to Attorney Maggiotto’s failure to press
his motion for a recess.
Similarly, as to Claim 2, Verenbec has not made the
requisite showing to warrant an evidentiary hearing. Claim 2 is
Verenbec’s due process claim that the prosecutor knowingly put
forward false testimony, when the victim’s aunt did not disclose
that she used an alias in the pornography industry, and that
there were images of her on the Internet engaging in sex acts
with other women. Verenbec has not shown that an evidentiary
hearing would disclose that the prosecutor knew that any part of
the witness’s testimony was untrue. Furthermore, he has not
shown that he exercised due diligence in the state courts with
respect to establishing the factual predicate for that claim.
Verenbec has thus failed to satisfy his burden under § 2254(e)
with respect to his request for a hearing as to Claim 2.
Moreover, he has not shown that there is any error in this
court’s underlying ruling granting summary judgment on the due
process claim relating to the aunt’s testimony.
Accordingly, this court declines to reconsider its
September 25, 2014 Order (doc. no. 39). Because Verenbec has
not otherwise demonstrated that the September 25, 2014 Order
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(doc. no. 39) is based on any error of law or fact, the court
denies the motion to reconsider (doc. no. 40) that Order.
Conclusion
For the foregoing reasons, the court denies Verenbec’s
motion (doc. no. 40), seeking reconsideration of the September
25, 2014 Order (doc. no. 39).
SO ORDERED.
_______________________________
Landya McCafferty
United States District Judge
June 22, 2015
cc: Joel Verenbec, pro se
Elizabeth C. Woodcock, Esq.
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