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Robert V. Towle v. Coos County Superior Court*Fn1

August 7, 2012

ROBERT V. TOWLE
v.
COOS COUNTY SUPERIOR COURT*FN1



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

REPORT AND RECOMMENDATION

Proceeding pro se and in forma pauperis, pretrial detainee Robert V. Towle has filed a petition for a writ of habeas corpus (doc. no. 1), seeking relief from certain pretrial orders imposed by the Coos County Superior Court ("CCSC") in Towle's pending state criminal proceedings.*fn2 The matter is before this court for preliminary review to determine whether Towle's claims are facially valid and cognizable in a federal habeas action. See Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts ("§ 2254 Rules"); United States District Court District of New Hampshire Local Rule ("LR") 4.3(d)(2) (magistrate judge conducts preliminary review of initial filings by inmates to determine, among other things, whether the filing states any claim upon which relief might be granted).

Background

I. Procedural Background

A. State Criminal Charges

Towle was initially indicted and charged with possession of child pornography on August 14, 2006, and was granted personal recognizance bail pending trial. On December 8, 2006, Towle pleaded guilty and was sentenced to 3 1/2 - 7 years in prison. On February 9, 2010, the New Hampshire Supreme Court ("NHSC") reversed that conviction and remanded the matter to the superior court for retrial.

In 2008, while Towle's appeal of the child pornography charges was still pending, Towle was indicted on four counts of aggravated felonious sexual assault and related counts of criminal liability for the conduct of another. The superior court again granted Towle personal recognizance bail. On January 27, 2010, approximately two weeks before the child pornography convictions were reversed, Towle was convicted of the sexual assault charges. On March 4, 2010, several weeks after the child pornography charges were reversed, Towle was sentenced to 57-114 years on the sexual assault charges.

Although the state initially sought to reprosecute Towle on the child pornography charges, it decided to nol pros those indictments on May 10, 2010, due to Towle's receiving a lengthy prison sentence on the sexual assault charges. Towle asserts that the superior court judge allowed the nol pros over Towle's objection, as Towle wanted to have a trial at which he could be exonerated of the possession charges.

On December 14, 2011, the NHSC reversed Towle's sexual assault convictions and remanded the case to the superior court for a retrial. On December 15, 2011, the prosecutor in the sexual assault case made a public statement indicating that he was disappointed in the NHSC's decision and would seek high cash bail in order to keep Towle "behind bars" pending his retrial on the sexual assault charges. When Towle was rearraigned on those charges, he was held on cash bail pending trial.

Apparently in response to the reversal of Towle's sexual assault conviction, the state reindicted Towle on the child pornography charges. Towle was arraigned on those charges on March 1, 2012, almost six years after they were initially brought and twenty-two months after they had been nol prossed. The superior court set cash bail on those charges as well.

B. State Court Litigation

Since December 2011, Towle has been held pretrial on the sexual assault charges, and has been held on the child pornography charges since March 2012, unable to post bail in either case. Since being so detained, Towle has filed several motions in the state courts relevant to this federal habeas action, specifically: (1) a motion to recuse two judges whom, he alleges, have demonstrated bias by, among other things, setting cash bail on his cases after they were remanded; (2) a motion to reduce bail to personal recognizance; and (3) a motion to dismiss the child pornography charges based on a speedy trial violation. Each of these motions was denied by the superior court.

On April 19, 2012, Towle filed a petition for a writ of habeas corpus and a petition for original jurisdiction in the NHSC. On June 6, 2012, Towle filed a motion for injunctive relief in the NHSC. On June 11, 2012, the NHSC denied the habeas petition and the motion to exercise original jurisdiction, mooting the motion for injunctive relief. See In re Towle, No. 2012-272 (N.H. June 11, ...


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