The opinion of the court was delivered by: Joseph N. Laplante United States District Judge
The petitioner, Terry Thomas, seeks habeas corpus relief from his state-court convictions for receiving stolen property, claiming a violation of his Sixth Amendment right to counsel and other constitutional violations. The respondent, the Warden of the New Hampshire State Prison (the "Warden"), has moved for summary judgment, see Fed. R. Civ. P. 56, arguing that all of Thomas's claims lack merit and that he failed to properly exhaust his state-court remedies as to at least one of them. Thomas has cross-moved for summary judgment in his favor.
This court has jurisdiction over Thomas's petition under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(a). After oral argument, the court grants the Warden's motion for summary judgment and denies Thomas's cross-motion for summary judgment. As discussed fully infra, none of Thomas's claims can support habeas relief as a matter of law.
I. Applicable legal standard
"In civil matters including habeas, evidentiary proceedings are appropriate only where the party bearing the burden of proof . . . starts with enough evidence to create a genuine issue of fact; otherwise summary judgment is proper." Bader v. Warden, N.H. State Prison, 488 F.3d 483, 488 (1st Cir. 2007); see also Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (when the state court record "precludes habeas relief" under the limitations of § 2254(d), "a district court is not required to hold an evidentiary hearing"). Thomas bears the burden of proof on his claims for habeas relief. See Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
Under AEDPA, "a federal court [can] entertain only those applications
alleging that a person is in state custody 'in violation of the
Constitution or laws or treaties of the United States.'"*fn1
Cullen v. Pinholster, --- U.S. ---, 131 S. Ct. 1388, 1398
(2011) (quoting 28 U.S.C. § 2254(a)). AEDPA further "provide[s] that a
federal court may not grant such applications
unless, with certain exceptions, the applicant has exhausted state
If a habeas application includes a claim that has been "adjudicated on the merits in State court proceedings," § 2254(d), then the court must employ a "highly deferential standard . . ., which demands that state-court decisions be given the benefit of the doubt" with respect to that claim. Woodford, 537 U.S. at 24 (internal quotation marks and citation omitted). Under § 2254(d), a federal court cannot grant habeas relief with respect to a claim that was adjudicated on the merits in state court unless adjudication of the claim resulted in a decision that (i) "was contrary to" clearly established federal law, as determined by the Supreme Court of the United States, (ii) involved an "unreasonable application of" clearly established federal law, or (iii) was based on an "unreasonable determination of the facts in light of the evidence presented in the State court proceeding."
A claim is presumed to be "adjudicated on the merits" when it has been presented to a state court and the state court has denied relief, even if the state court does not provide its reasoning. See Harrington v. Richter, --- U.S. ---, 131 S. Ct. 770, 784-85 (2011). On the other hand, when it is clear that the "[state] courts did not reach the merits of [the petitioner's constitutional] claim, federal habeas review is not subject to the deferential AEDPA standard; "[i]nstead, the claim is reviewed de novo. Cone v. Bell, 556 U.S. 449, 129 S. Ct. 1769, 1783 (2009); see also Wright v. Marshall, 656 F.3d 102, 107-08 (1st Cir. 2011).
In 1999, Thomas was charged with seven counts of receiving stolen property. See N.H. Rev. Stat. Ann. § 637:7. Mona Igram, of the New Hampshire Public Defender's office, was assigned to represent him. In January 2000, Thomas sought to dismiss Igram and requested new counsel be appointed to act as "co-counsel" with him in his defense. The trial court granted this relief. Over the next 16 months, Thomas repeatedly sought and was appointed new "co-counsel." Eventually, after appointing at least four different lawyers to this role, the court denied Thomas's motion to replace his then current co-counsel, Jane-Holly Weintraub. Thomas opted to proceed pro se with Weintraub acting as his standby counsel.
In May 2001, following a jury trial in Hillsborough County Superior Court, Thomas was convicted on three counts of receiving stolen property. He was later sentenced to three concurrent terms of three and one-half to seven years in prison on each count and was ordered to pay restitution.
The following month, Thomas, proceeding pro se, appealed his convictions to the New Hampshire Supreme Court ("NHSC"). In the notice of appeal, Thomas raised several constitutional claims, including that the trial court erred in allowing him to proceed pro se and in denying his request for a transcript of a suppression hearing. Deputy Chief Appellate Defender David Rothstein, also of the Public Defender's Office, subsequently appeared as Thomas's appellate counsel.
Acting on his own behalf, Thomas later filed a request with the NHSC to proceed pro se on appeal and to dismiss Rothstein as his counsel because he "has not/is not providing reasonably effective assistance of counsel." Ex. N. at 8. Thomas argued that Rothstein had refused to pursue numerous appellate issues Thomas had identified. Thomas further argued that Rothstein had a conflict of interest because Thomas had filed professional conduct complaints against various public defenders, including Igram. At the NHSC's request, Rothstein submitted a brief on whether Thomas had the right to proceed pro se on appeal. Ruling that he had no such right, the NHSC ultimately denied Thomas's request to proceed pro se and affirmed his convictions. See State v. Thomas, 150 N.H. 327 (2003).
Thomas then filed a motion in the Superior Court for post-conviction relief, i.e., a judgment of acquittal or, in the alternative, a new trial. The court denied the motion without a hearing. Thomas then filed a notice of discretionary appeal of this decision with the NHSC, alleging, among other claims, ineffective assistance of both trial counsel and appellate counsel and that the state knowingly withheld exculpatory evidence. In response, the state argued that Thomas was entitled to a hearing on his claims of ineffective assistance of trial counsel and withholding of evidence only. The NHSC agreed, remanding the matter for a hearing on those issues. After the hearing, the Superior Court rejected Thomas's claims. He then filed a notice of discretionary appeal of this decision with the NHSC, which declined to hear the appeal.
Prior to filing his second discretionary appeal, Thomas, proceeding pro se and in forma pauperis, filed a petition for a writ of habeas corpus in this court seeking relief from his convictions. Thomas's petition included approximately 136 federal constitutional claims (34 numbered claims, some with numerous lettered subparts). Following preliminary review, Magistrate Judge Muirhead recommended that 12 of the claims be dismissed but that the rest be allowed to proceed. The Warden eventually moved for summary judgment on these claims.
In light of the unusually large number of claims surviving preliminary review, the court appointed counsel to represent Thomas. See 18 U.S.C. § 3006A(a)(2)(B). The court also suspended its review of the pending summary judgment motion to allow appointed counsel an opportunity to review the case file, meet with Thomas, and file a notice with the court delineating which claims he intended to pursue, and which he waived. Counsel did so, eventually filing a notice with the court setting forth five "non-frivolous" claims he intended to pursue.*fn2 The Warden then moved for summary judgment on those claims. Thomas objected and filed a cross-motion for summary judgment.
Thomas's remaining claims are as follows:
(i) he was denied his Sixth Amendment right to counsel because the trial court allowed him to waive it, and to go to trial pro se, without conducting an adequate colloquy;
(ii) the trial court violated his due process rights when it denied his request for a transcript of the suppression hearing;
(iii) the trial court denied what he sees as his constitutional right to make an opening statement;
(iv) the trial court denied his Sixth Amendment right to effective assistance of counsel when it refused to allow his standby counsel, Weintraub, to withdraw despite an actual conflict of interest; and
(v) he was deprived of the effective assistance of appellate counsel because his appellate counsel, Rothstein, had a conflict of interest.
As explained fully infra, these claims are without merit.
A. Claims adjudicated on the merits
On Thomas's direct appeal, the NHSC considered and rejected his claims concerning his waiver of his right to counsel at trial and the trial court's denial of his request for the transcript of the suppression hearing. Therefore, these two claims were "adjudicated on the merits" and are reviewed under AEDPA's deferential standard. See Part I, supra.
The court first determines whether the NHSC's decision "was contrary to" clearly established federal law, as determined by the Supreme Court. A state court decision is "contrary to" established Supreme Court precedent if either the state court reaches a conclusion on a question of law "diametrically different" to that reached by the Supreme Court, or a state court "confronts a set of facts that are materially indistinguishable" from relevant Supreme Court precedent and reaches an opposite result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
If the NHSC's decision was not "contrary to" clearly established federal law, the court next determines whether the decision involved an "unreasonable application of" clearly established federal law. § 2254(d). A state court decision is an "unreasonable application" of clearly established federal law if the state court (i) "identifies the correct governing legal rule from [the Supreme Court's] cases but unreasonably applies it to the facts" of a prisoner's case, (ii) "unreasonably extends a legal principle from [the Supreme Court's] precedent to a new context where it should not apply" or (iii) "unreasonably refuses to extend that principle to a new context where it should apply." Williams, 529 U.S. at 407; see also L'Abbe v. DiPaolo, 311 F.3d 93, 96 (1st Cir. 2002). In order to meet this standard, the state court's application of law must contain "some increment of incorrectness beyond error . . . . The increment need not necessarily be great, but it must be great enough to make the decision unreasonable in the independent and objective judgment of the federal court." McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002) (internal quotation marks and citation omitted).
If the state court decision was not "contrary to" or an "unreasonable application of" clearly established federal law, the court next considers whether the decision was based on an "unreasonable determination of the facts in light of the evidence presented in the State court proceeding." § 2254(d). Determinations of fact made by the state court are presumed to be correct; the petitioner has the burden of rebutting this presumption of correctness by clear and convincing evidence. See § 2254(e)(1); Sleeper v. Spencer, 510 F.3d 32, 38 (1st Cir. 2007). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable--a substantially higher threshold." Schriro, 550 U.S. at 473 (internal citation omitted). Furthermore, "[t]he 'presumption of correctness is equally applicable when a state appellate court, as opposed to a state trial court, makes the findings of fact.'" Norton v. Spencer, 351 F.3d 1, 6 (1st Cir. 2003) (quoting Sumner v. Mata, 455 U.S. 591, 593 (1982)).
1. Thomas's waiver of the right to counsel at trial
Thomas argues that the trial court failed to conduct an adequate colloquy before allowing him to represent himself, as required to determine whether his waiver of his right to counsel was knowing and intelligent, under Faretta v. California, 422 U.S. 806 (1975), and related cases. He contends that although the record reflects that he expressed a desire to represent himself, it does not reflect that he was capable of, or understood the risks, of doing so. In moving for summary judgment, the Warden argues that the NHSC ...