The opinion of the court was delivered by: Steven J. McAuliffe United States District Judge
In November of 2008, Leonard Montour was convicted of two counts of Aggravated Felonious Sexual Assault, four counts of Felonious Sexual Assault, and two counts of Misdemeanor Sexual Assault on his former babysitter. He was sentenced to serve 15 to 30 years in prison and his convictions were affirmed on appeal to the New Hampshire Supreme Court. State v. Montour, Case No. 2009-0313 (N.H. Sept. 14, 2010) (document no. 1-5).
Montour now seeks federal habeas corpus relief, asserting that he was deprived of his Fourteenth Amendment right to due process and his Sixth Amendment right to confront his accuser. See generally 28 U.S.C. § 2254. The State moves for summary judgment. For the reasons discussed below, the State's motion is granted.
As Montour acknowledges in his memorandum, and as this court has previously noted, the burden on a petitioner seeking federal habeas corpus relief is substantial. Since passage of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), the power to grant federal habeas relief to a state prisoner with respect to claims adjudicated on the merits in state court has been significantly limited. A federal court may not disturb a state conviction unless the state court's adjudication "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). And, a habeas petitioner seeking relief under that provision faces a substantial burden insofar as "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1).
Alternatively, habeas relief may be granted if the state court's resolution of the constitutional issues before it "resulted in a decision that was contrary to, or 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). See generally Williams v. Taylor, 529 U.S. 362, 412-13 (2000). To prevail on such a claim, the habeas petitioner must demonstrate that "the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011).
Only as to federal claims that were presented to the state court but neither adjudicated on the merits nor dismissed by operation of a regularly-applied state procedural rule, may this court apply the more petitioner-friendly de novo standard of review. See, e.g., Clements v. Clarke, 592 F.3d 45 52 (1st Cir. 2010) ("In contrast, a state court decision that does not address the federal claim on the merits falls beyond the ambit of AEDPA. When presented with such unadjudicated claims, the habeas court reviews them de novo.") (citation omitted).
With those principles in mind, the court turns to Montour's petition and the State's motion for summary judgment.
Montour's first trial ended in a mistrial, after the jury declared it was deadlocked and unable to reach a verdict. Prior to the retrial, Montour's girlfriend, Jennifer Scott, reported to Manchester police that the couple had received harassing phone calls on Montour's cellular telephone. She told police she suspected the calls had been made by Montour's victim. She also reported that she had been awakened late at night by the sound of a woman screaming outside, followed by tires screeching - an event she believed was related to the harassing phone calls.
And, finally, Ms. Scott told police she was concerned about a photograph on the victim's MySpace page that showed her holding a firearm.
Manchester police investigated the incidents and interviewed Montour's victim. When police initially contacted her by telephone, the victim denied making any calls to Montour's cell phone. Subsequently, however, she met with the investigating officer, admitted she had placed the phone calls to Montour, but said she couldn't remember how many times she had called him.
She vehemently denied making any threats or acting with the intent to harass him and told the investigating officer she would be willing to "swear to this under oath and take a lie detector test." Incident/Investigation Report (document no. 1-8) at 13. She said her phone was "on mute the whole time," told the officer she was afraid of Montour, and asked, "why would I threaten him?" Id.
The victim explained that although she originally told prosecutors she was not willing to go through the ordeal of a second trial, she changed her mind and wanted to let Montour know that "she wasn't going to back down." Id. She denied calling him repeatedly, but suggested that her phone might have done so without her knowledge - that is, she reported that sometimes when she put her phone away, it would redial the last outgoing number that she had called. The investigating officer noted that her son had the same phone and had ...