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Kerner v. Reilly

United States District Court, First Circuit

July 22, 2013

Mark A. Kerner, Petitioner
v.
Edward Reilly, Warden, Northern New Hampshire Correctional Facility; and William L. Wrenn, Commissioner, New Hampshire Department of Corrections, Respondents No. 2013 DNH 100

ORDER

STEVEN J. MCAULIFFE, United States District Judge.

Before the court are petitioner Mark A. Kerner’s petition for a writ of habeas corpus (doc. no. 3); Kerner’s motion to stay the statute of limitations applicable to the petition, which the clerk docketed as part of the petition (doc. no. 1); and Kerner’s motion for appointment of counsel (doc. no. 5). The matter is here for preliminary review to determine whether 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”).

Background

On June 24, 2009, a jury in the New Hampshire Superior Court at Hillsborough County, Southern District, convicted Kerner of five felony and two misdemeanor sexual offenses. On September 21, 2009, Kerner was sentenced to a lengthy prison term. Kerner filed a direct appeal of his conviction in the New Hampshire Supreme Court (“NHSC”). The NHSC denied that appeal on September 24, 2010. See State v. Kerner, No. 2009-0709 (N.H. Sept. 24, 2010). Kerner next filed a motion for original jurisdiction in the NHSC, and the NHSC denied that motion on March 10, 2011. Kerner then filed a state court habeas petition in the New Hampshire Superior Court at Coos County (“CCSC”), which the CCSC denied, without a hearing, on April 6, 2012. Kerner did not appeal that denial to the NHSC. Kerner filed another motion for original jurisdiction, seeking plain-error review of the CCSC decision, in the NHSC on August 20, 2012. The NHSC denied the motion on October 12, 2012.

Claims

Kerner’s § 2254 petition asserts that his conviction, and therefore his incarceration, are constitutionally infirm. Specifically, Kerner asserts that:

1. Kerner’s trial counsel violated his Sixth and Fourteenth Amendment rights to the effective assistance of counsel by:
a. failing to complete a full investigation prior to trial;
b. failing to call an expert witness at trial to testify or provide information to assist the defense in challenging the victim’s credibility at trial;
c. failing to question two potential alibi witnesses;
d. failing to subpoena at least two potential witnesses to testify at trial;
e. failing to discuss with Kerner why certain witnesses were not subpoenaed to testify at trial;
f. failing to keep Kerner adequately informed of “which way the case was heading” during trial;
g. failing to meet with Kerner enough prior to trial;
h. failing to review important in camera documents;
i. failing to spend sufficient time working on Kerner’s case;
j. failing to share exculpatory “Brady” evidence with Kerner;
k. failing to present all exculpatory “Brady” evidence to the jury;
l. failing to impeach key witnesses with prior inconsistent statements;
m. failing to provide an alternative or secondary ...

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