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Rogers v. Gerry

United States District Court, D. New Hampshire

November 4, 2014

Scott N. Rogers
v.
Richard Gerry, Warden, New Hampshire State Prison.

REPORT AND RECOMMENDATION

ANDREA K. JOHNSTONE, Magistrate Judge.

Before the court is respondent's motion for summary judgment (doc. no. 22) on the 28 U.S.C. § 2254 petition filed by Scott Rogers. Rogers objects to that motion. See Doc. Nos. 23, 27, and 32. The motion is before the undersigned magistrate judge for a report and recommendation pursuant to LR 72.1. For the reasons stated below, this court recommends that the district judge grant the motion for summary judgment (doc. no. 22), deny the § 2254 petition, and decline to issue a certificate of appealability.

Background

Rogers is serving a prison sentence pursuant to convictions for burglary, theft by unauthorized taking, and receiving stolen property, relating to his involvement in the March 2008 burglary of a hotel under construction in Bedford, New Hampshire, and the theft of new televisions from that hotel. Rogers's involvement in the burglary and theft came to the attention of the Bedford Police Department ("BPD") when the New Hampshire Attorney General's Drug Task Force turned over a one-party intercept of a telephone conversation between Rogers and a confidential informant ("CI"), in which the television theft was discussed. Based on that information, and BPD surveillance of the hotel job site, the BPD obtained a search warrant for Rogers's apartment. The search yielded three of the stolen televisions.

Rogers moved to represent himself at trial without the assistance of any lawyer. The trial court granted Rogers's request and appointed stand-by counsel to assist him.

Prior to trial, Rogers filed several discovery motions pro se, including a request for access to a recording of the one-party intercept phone call that had been cited in the BPD's search warrant application. The state objected to that discovery request, invoking New Hampshire Rule of Evidence 509 to shield the contents of the recording. Rule 509 grants the state the privilege to refuse to disclose "the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law." The trial court denied Rogers's request for the recording.

At trial, the state presented evidence that Rogers and Michael Grenon, a carpenter working on the hotel job site, drove to the construction site using Rogers's Jeep, and used Grenon's key to enter the building after hours to take new televisions, which they brought back to Rogers's apartment in Rogers's Jeep. BPD Officer Griswold testified that the BPD obtained a warrant to search Rogers's apartment, and that the search yielded three stolen televisions, one which was set up on a stand for viewing, and two in their boxes in a closet. Officer Griswold also testified that Rogers initially denied knowing anything about the theft, but when confronted with the fact that three stolen televisions were found in his apartment, Rogers told Griswold that the BPD "had him for receiving and not for burglary." Doc. No. 22-7, at 99 (Tr. of Trial at 99, State v. Rogers, Nos. 08-S-1492, -1493, -1494 (N.H. Super. Ct., Hillsborough Cnty., N. Div. Mar. 23, 2010)).

Rogers, who did not testify on his own behalf, called several witnesses, including the person he knew was the CI who had spoken to him in the one-party intercept call. The CI testified that he remembered the police asking him to call Rogers because they thought Rogers was into "dirty stuff." See id. at 130. He further testified that he remembered Rogers telling him that Rogers would "minus" the money the CI owed to Rogers if the CI helped Rogers steal the TVs. See id. When asked to describe what was said in the call that the officers asked the CI to make, the CI testified he could not remember. Id. at 129-30.

The jury convicted Rogers on all charges. Rogers, who had a lengthy criminal record, received two concurrent sentences of ten to thirty years, and one consecutive sentence of ten to thirty years.

Rogers appealed the convictions to the New Hampshire Supreme Court ("NHSC"). That court affirmed, specifically rejecting Rogers's arguments challenging the trial court's denial of his request for access to a recording of the one-party intercept call. See State v. Rogers, No. 2010-0515 (N.H. June 11, 2013). Rogers has asserted an analogous claim in the § 2254 petition, a due process claim challenging the denial of Rogers's discovery request to obtain the recording of the one-party intercept phone conversation between himself and the CI, which the state court ruled was privileged under N.H. R. Evid. 509.[1]

Discussion

I. Habeas Standard of Review

In a federal habeas action, relief is not available as to any claim adjudicated on the merits in state court, unless the state court's legal conclusions or application of legal standards to settled facts "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1); see also Robidoux v. O'Brien, 643 F.3d 334, 338 (1st Cir. 2011). If the issue is one of fact, the habeas court must "apply a presumption of correctness to the [state] court's factual findings and also examine whether there has been an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." John v. Russo, 561 F.3d 88, 92 (1st Cir. 2009); ...


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