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Greg Schillinger v. New Hampshire State Prison Warden

February 1, 2013

GREG SCHILLINGER
v.
NEW HAMPSHIRE STATE PRISON WARDEN, ET AL.*FN1



The opinion of the court was delivered by: Joseph Laplante United States District Judge

ORDER

Greg Schillinger, appearing pro se, has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence on counts of aggravated felonious sexual assault and felonious sexual assault, in State v. Schillinger, Nos. 00-S-0048 & 0049 (N.H. Super. Ct., Strafford Cnty.)*fn2 The matter is before the court for preliminary review to determine whether the claims raised in the petition (doc. nos. 1, 4, 9-13, 15, and 17-22) are facially valid and may proceed. See Rule 4 of the Rules Governing Section 2254 cases in the United States District Courts ("§ 2254 Rules").

§ 2254 Rule 4 Standard

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. The court decides whether the petition contains sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face and cognizable in a federal habeas action. See McFarland v. Scott, 512 U.S. 849, 856 (1994) ("Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face." (citing § 2254 Rule 4)). The court undertakes this review with due consideration for the petitioner's pro se status. "[A]s a general rule, . . . 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

Schillinger is a prisoner at the New Hampshire State Prison ("NHSP"), serving a sentence for a September 2000 conviction on counts of felonious sexual assault and aggravated felonious sexual assault. See State v. Schillinger, Nos. 00-S-0048 & 0049 (N.H. Super. Ct., Strafford Cnty.). The New Hampshire Supreme Court ("NHSC") affirmed Schillinger's convictions on October 22, 2002. See State v. Schillinger, No. 2000-829 (N.H. Oct. 22, 2002). Schillinger litigated a number of post-conviction motions in Strafford County Superior Court asserting claims of, among other things, ineffective assistance of counsel. The Superior Court denied those motions. The NHSC declined to accept Schillinger's discretionary appeals of orders denying Schillinger's post-conviction motions, in NHSC Case Nos. 2002-134 (N.H. Feb. 27, 2003), and 2003-666 (N.H. Nov. 20, 2003). Schillinger filed this § 2254 petition in 2012.

Claims

Schillinger's § 2254 petition (doc. nos. 1, 4, 9-13, 15, and 17-22), liberally construed, asserts the following claims:

1. Schillinger's conviction was obtained in violation of his Fourteenth Amendment right to due process, because the evidence in Schillinger's trial was not sufficient to prove guilt beyond a reasonable doubt, in that the minor victim's testimony was ambiguous, unreliable, and the product of "false memory implantation."

2. The Superior Court's denial of Schillinger's request to admit expert opinion evidence (in the form of Dr. Ralph Underwager's letters) to rebut testimony as to the reliability of the victim's testimony, violated Schillinger's (a) Fourteenth Amendment right to due process; and (b) Sixth Amendment right to compulsory process.

3. The Superior Court violated Schillinger's Fourteenth Amendment right to due process by failing to provide a preliminary hearing to assess the reliability of the minor victim's testimony, as required by State v. Hungerford, 142 N.H. 110, 119, 697 A.2d 916, 921 (1997).

4. The Superior Court violated Schillinger's Fourteenth Amendment right to due process and Sixth Amendment right to confrontation of the evidence against him: (a) by allowing the jury, during the trial, to view a videotaped interview of the victim; and (b) by allowing the jury to replay that videotape during its deliberations.

5. The Superior Court violated Schillinger's:

(a) Fourteenth Amendment right to due process; and (b) Sixth Amendment right to a fair trial before an impartial jury, by personally selecting the jury foreperson after reviewing the juror questionnaires.

6. Schillinger's conviction was obtained in violation of his Fourteenth Amendment right to due process, in that a hostile police chief instituted the prosecution without probable cause, seeking revenge against Schillinger and fame for himself.

7. Schillinger's counsel provided ineffective assistance of counsel, in violation of Schillinger's Sixth Amendment rights.

8. The Superior Court violated Schillinger's Fourteenth Amendment right to due process by sentencing him before a psychiatrist examined him to determine whether he was a dangerous sexual offender, contrary to the pre-sentencing examination ...


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