JOSEPH A. DiCLERICO, Jr., District Judge.
Adam Mentus, proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mentus challenges his state court conviction of manslaughter on the grounds that the state court violated his Fifth, Sixth, and Fourteenth Amendment rights by failing to authorize the amount he requested to hire a gun expert and that the prosecutor's closing argument denied his right to a fair trial. The warden moves for summary judgment. Mentus has not responded to the motion.
Standard of Review
In habeas proceedings as in other civil cases, "[s]ummary judgment is proper if there is no genuine issue as to any material fact and the undisputed facts show that the moving party is entitled to judgment as a matter of law." Kuperman v. Wrenn , 645 F.3d 69, 73 (1st Cir. 2011); see also Fed.R.Civ.P. 81(a)(4). When a motion for summary judgment is unopposed, the court nevertheless must consider the motion under the summary judgment standard. Sanchez-Figueroa v. Banco Popular de P.R. , 527 F.3d 209, 212 (1st Cir. 2008).
Mentus and Nathan Caron went to a firearms store where Caron bought a handgun. Later in the day, Mentus and three others planned to go to a sandpit to fire the gun. Deirdre Budzyna got into the car to drive to the sandpit, and Mentus sat behind her in the car.
Moments after getting into the car, Mentus took the loaded gun out of his pocket. As he held the gun in his right hand, it fired. The bullet went through the seat and hit Budzyna, puncturing her lung. She got out of the car, and Menus called 911. Budzyna later died at the hospital.
Mentus was charged with manslaughter. Because he was indigent, Mentus was represented by counsel from the New Hampshire Public Defender's office. Before trial, counsel asked the court to authorize, pursuant to RSA 604-A:6, payment of $3, 000.00 to hire Gregory Danas as a firearms expert. The court held a hearing and initially authorized $750.00. Because that was not enough to hire Danas, counsel asked the court to reconsider the allocation. On reconsideration, the court authorized $1, 200.00, which was still not enough to hire Danas.
Instead of Danas, the defense hired a lawyer who was involved in litigation against firearm manufacturers to serve as the firearms expert. The court ruled that the lawyer was not qualified to testify as an expert. As a result, Mentus did not have a firearms expert at trial to support his defense that the gun misfired. A firearms expert did testify on behalf of the state.
In his closing argument at trial, the prosecutor said:
There's always a risk. The way we handle guns that are even unloaded. Once its loaded, there's a risk, and you can't let it bump into something. And while it may [misfire] when you drop it on the ground, what does that mean?... That means you shouldn't drop it on the ground. If you've got that gun and its loaded, [it] better be in your holster with a triple safety. And when you pull it out, you better not drop it on the ground or you're responsible for that.
Mentus , 162 N.H. at 798. Defense counsel objected that the prosecutor's statement meant that a person would be reckless per se if he dropped a gun which was a misstatement of the law. The trial judge overruled the objection.
Mentus was convicted of manslaughter. On appeal, Mentus challenged the trial court's decision to authorize only $1, 200.00 for his expert witness, rather than the full amount he requested, and the trial court's failure to sustain the defense's objection to the prosecutor's closing argument. The New Hampshire Supreme Court reviewed both issues under the state law "unsustainable exercise of discretion standard." Id. at 795 (citing State v. Sweeney , 151 N.H. ...