United States District Court, D. New Hampshire
Dominic S. Ali,
New Hampshire Adult Parole Board.
REPORT AND RECOMMENDATION
ANDREA K. JOHNSTONE, Magistrate Judge.
Before the court are respondent's "Motion for Summary Judgment as to Claims 4(g) and 5" (doc. no. 57), and Dominic Ali's "Motion to Vacate Enhance Indictment" (doc. no. 61). The respondent objects (doc. no. 64) to Ali's motion, and Ali objects (doc. no. 66) to respondent's motion. The pending motions (doc. nos. 57 and 61) have been referred to the magistrate judge for a report and recommendation, pursuant to LR 72.1. For reasons set forth below, the district judge should grant respondent's motion (doc. no. 57), deny Ali's motion (doc. no. 61), and decline to issue a certificate of appealability.
Ali is an inmate in Immigration and Customs Enforcement ("ICE") custody. Ali was paroled by the New Hampshire Department of Corrections to ICE custody before the expiration of a sentence Ali was serving in New Hampshire on a 2008 second degree assault charge.
In 2004, Ali pleaded nolo contendere, and was convicted of, violating a restraining order. In the 2008 assault prosecution, the state used Ali's 2004 conviction as the basis for enhancing the 2008 second degree assault charge from a Class B felony to a Class A felony, pursuant to N.H. Rev. Stat. Ann. § 173-B:9, IV(b). In the 2004 criminal case and pretrial and at trial in the 2008 criminal case, Ali was represented by court-appointed counsel from the New Hampshire Public Defender ("NHPD").
In this § 2254 petition, Ali challenges his 2008 conviction, and, derivatively, his 2004 conviction, on grounds including ineffective assistance of counsel in the 2008 case. The operative claims in the § 2254 petition, and additional facts relating to Ali's case, are set forth in this court's March 31, 2014, Order (doc. no. 46) ("March 2014 Order"), granting in part respondent's motion for summary judgment on all claims except for Claims 4(g) and 5(a)-(d). Because respondent had not filed all of the state court record that this court required to rule on Claims 4(g) and 5(a)-(d), this court in the March 2014 Order denied that summary judgment motion as to those claims, without prejudice to refiling after respondent filed additional parts of the state court record.
Claims 4(g) and 5 (a)-(d) are reproduced below: 4(g). NHPD Attorneys Helen Sullivan and Aileen O'Connell, appointed to represent Ali, provided incompetent representation of Ali at trial and in pretrial proceedings in the 2008 case, in violation of Ali's Sixth Amendment right to the effective assistance of counsel, in that they failed to investigate whether the 2004 conviction, which provided the basis for enhancing the 2008 felony charge, had been obtained in violation of Ali's constitutional rights.
5. Non-NHPD Attorney Anthony Introcaso, appointed to represent Ali shortly before sentencing in the 2008 case, denied Ali competent representation at sentencing, in violation of Ali's Sixth Amendment right to the effective assistance of counsel, in that Attorney Introcaso:
(a) Failed to challenge the materially incorrect statement of Ali's prior criminal record and inaccuracies regarding the 2008 convictions in the Pre-Sentence Investigation report ("PSI");
(b) Failed to provide the PSI to Ali prior to the sentencing hearing;
(c) Failed to assert as mitigating factors during sentencing (i) that trial counsel generally provided ineffective assistance of counsel to Ali; and (ii) that trial counsel failed to advise Ali of the improbability of acquittal and the benefits of accepting a plea bargain, in violation of Ali's Sixth Amendment right to the effective assistance of counsel; and
(d) Did not review the sentencing recommendations prepared by the NHPD attorneys who had represented Ali at trial and did not prepare or offer the sentencing court any sentencing proposal on Ali's behalf.
Respondent has filed documents in compliance with the March 2014 Order in this case. see Doc. Nos. 47, 50, and 57. Ali has filed a "Motion to Vacate Enhance [sic] Indictment" (doc. no. 61) and an objection (doc. no. 66) to ...