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Kerry Kidd v. Larry Blaisdell

January 31, 2012

KERRY KIDD
v.
LARRY BLAISDELL, WARDEN NORTHERN NEW HAMPSHIRE CORRECTIONAL FACILITY



The opinion of the court was delivered by: Landya McCafferty United States Magistrate Judge

ORDER

Before the court is the petition for writ of habeas corpus (doc. no. 1), filed by pro se petitioner, Kerry Kidd. The matter is here for preliminary review to determine whether or not the claims raised in the petition are facially valid and may proceed. See Rule 4 of the Rules Governing Section 2254 cases in the United States District Courts ("§ 2254 Rules").

Standard of Review

Pursuant to § 2254 Rule 4, a judge is required to promptly examine any petition for habeas relief, and if "it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition." Id. In undertaking this review, the court applies a standard analogous to that used in reviewing a motion to dismiss filed under Fed. R. Civ. P. 12(b)(6). The court decides whether the complaint contains sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face and cognizable in a petition for federal habeas relief. See Love v. Butler, 952 F.2d 10, 15 (1st Cir. 1991) (habeas petition was properly dismissed on the merits sua sponte, where petitioner's arguments were readily resolved without resort to transcript, and district court had access to pertinent documents filed with petition including parties' state court briefs and state court decision); see also Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S. Ct. 1937, 1949 (2009) (standard of review applicable in determining if complaint states viable claims); cf. Day v. McDonough, 547 U.S. 198, 209-10 (2006) (holding that, as with exhaustion, district court may sua sponte raise statute of limitations and dismiss habeas petition, after providing parties with notice and opportunity to respond).

The court undertakes this preliminary review of the petition with due consideration for the petitioner's pro se status. "As a general rule, we are solicitous of the obstacles that pro se litigants face, and while such litigants are not exempt from procedural rules, we hold pro se pleadings to less demanding standards than those drafted by lawyers and endeavor, within reasonable limits, to guard against the loss of pro se claims due to technical defects." Dutil v. Murphy, 550 F.3d 154, 158 (1st Cir. 2008).

Background

In 2006, Kidd was charged with aggravated felonious sexual assault on a minor. The witnesses who testified at trial included the victim and Kidd's estranged wife. Attorney Lee Topham represented Kidd at trial. Kidd asserts in this petition that Topham provided ineffective assistance of counsel, as specified more fully herein.

A jury convicted Kidd in September 2006, and the court sentenced Kidd to ten to twenty years in prison. The New Hampshire Supreme Court ("NHSC") affirmed Kidd's conviction on December 21, 2007, in NHSC case no. 2007-0151.

Kidd filed a motion for a new trial on January 22, 2008, asserting that Attorney Topham had provided ineffective assistance of counsel. Kidd offered expert testimony and other evidence in connection with his motion in an effort to show that counsel's performance had been so deficient as to violate the standard set in Strickland v. Washington, 466 U.S. 668 (1984). The superior court in Grafton County denied the motion on June 8, 2009.

Kidd appealed the order denying a new trial to the NHSC. In his appellate brief, Kidd cited the state and federal constitutions in arguing that trial counsel's deficient performance had deprived Kidd of a fair trial. In particular, Kidd cited the following claimed deficiencies: (1) counsel failed to cross-examine witnesses and failed to adequately highlight discrepancies between the witnesses' out-of-court statements and their testimony at trial; and (2) counsel failed to object to the prosecutor's and trial court's use of the term "victim" during jury selection and at trial. The NHSC issued an opinion on August 31, 2010, affirming the order denying a new trial. See State v. Kidd, No. 2009-0453 (N.H. Aug. 31, 2010).

Kidd filed the instant petition for federal habeas relief in July 2011. The petition includes the following claims asserting that trial counsel's performance failed to meet the benchmark set in Strickland v. Washington, 466 U.S. 668 (1984), and thus violated his Sixth Amendment right to effective assistance of counsel at trial*fn1

1. Counsel failed to cross-examine witnesses and failed to adequately highlight discrepancies between out-of-court statements and testimony at trial;

2. Counsel failed to object to the prosecutor's and trial court's use of the term "victim" during ...


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