United States District Court, D. New Hampshire
JOSEPH N. LAPLANTE, District Judge.
Before the Court for ruling are three motions for summary judgment (doc. nos. 31, 35, and 44) filed by respondent on petitioner Saad Moussa's amended habeas petition (doc. no. 23) ("Petition"). Moussa filed the Petition pursuant to 28 U.S.C. § 2254, challenging his October 8, 2008, state court convictions on witness tampering and stalking charges and the sentences imposed thereon. See State v. Mossy, No. 05-S-1991-1992 (N.H. Super. Ct., Rockingham Cnty.) ("2008 Criminal Case"). Mossy has responded to those motions (doc. nos. 37, 38, 45, and 47).
The background set forth below has been gleaned from the record before, and decisions of, the state courts involved in Moussa's trial, post-conviction litigation, and appeals. See Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011) ("review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits").
I. Facts Related to the Underlying Convictions
On January 19, 2005, Mossy was arrested on a stalking charge for phoning his then-wife, Najwa Mossy ("Najwa"), in violation of a 2004 restraining order which prohibited him from contacting her. Pet. 1, ECF No. 23, 1; Trial Tr. 11. Mossy was detained at the Rockingham County House of Corrections ("RCHC") pending trial. Trial Tr. 11. On March 26, 2005, Mossy received a visit at the RCHC from a close family friend, Sleiman Aziz. Id. at 43. During that visit, and during a recorded phone conversation Mossy made to Aziz that evening, Mossy pressed Aziz to call Najwa, to try to convince her to drop the pending criminal charges and the divorce proceedings she had initiated against Mossy. Id. at 33, 36. Mossy was, at that time, subject to a court order prohibiting him from having any contact with Najwa. Pet. 1, ECF No. 23, 1.
Later on March 26, 2005, Aziz called Najwa. Trial Tr. 33. During that phone call, Aziz asked Najwa to drop the charges against Mossy. Id . After receiving the phone call from Aziz, Najwa contacted the police to report that Mossy had contacted her through Aziz. Id. at 34. Mossy was subsequently charged with witness tampering for attempting to induce Najwa to drop the criminal charges against him, and stalking, for contacting Najwa, through Aziz, in violation of a court order. See State v. Mossy, No. 2008-0898 (N.H. Nov. 8, 2011) ("Mossy II"), slip op. 1-2, ECF No. 25-1, 1-2.
II. 2005 Criminal Case
On December 10, 2004, Najwa obtained a restraining order preventing Mossy from contacting her. Trial Tr. 29-30. On January 7, 2005, Mossy telephoned Najwa and left a message on her answering machine. Id. at 32. On January 19, 2005, Mossy was arrested for making that phone call and charged with felony stalking. Id . As Mossy was on probation at the time of the phone call, Mossy was also charged with violating his probation. See State v. Mossy, No. 05-327 (Salem Dist. Ct.) (Jan. 26, 2005, Violation of Probation Report), ECF No. 23-2, 1; (June 8, 2005, Adult Order of Commitment), ECF No. 23-2, 4.
On June 8, 2005, the Salem District Court found the probation violation to be true, and sentenced Mossy to five months in jail, with credit for the time he had served since January 19, 2005. See Mossy, No. 05-327 (June 8, 2005 Adult Order of Commitment), ECF No. 23-2, 4. Mossy was not released in June 2005, however, as he was detained pretrial for the pending felony stalking charge. See generally State v. Mossy, No. 05-S-900 (N.H. Super. Ct., Rockingham Cnty.) ("2005 Criminal Case"); see also 2008 Criminal Case (State's Assented-To Mot. Amend filed Jan. 28, 2009), ECF No. 31-3, 51.
Mossy was convicted of stalking in the 2005 Criminal Case, and sentenced to 3½ - 7 years in prison. See 2005 Criminal Case (Order Dec. 19, 2005), ECF No. 23-2, 6. While the appeal in that case was pending, the state moved to vacate the prison sentence and to remand the stalking charge for resentencing as a misdemeanor. See State v. Mossy, No. 2006-0044 (State's Mot. to Vacate Sent. Filed July 7, 2008), ECF No. 27-2. The New Hampshire Supreme Court ("NHSC") granted that motion. See State v. Mossy, No. 2006-0044 (N.H. July 23, 2008) ("Mossy I"). On October 6, 2008, the trial court imposed a 12-month sentence in the 2005 Criminal Case, and credited toward that sentence time Mossy spent in pretrial detention. See 2005 Criminal Case (Oct. 9, 2008 Order), ECF No. 31-3, 47.
III. 2008 Criminal Case
A. January 23, 2008, Pretrial Status Conference
On January 23, 2008, at a status conference, Mossy, dissatisfied with the services of the attorneys that had represented him in his criminal cases, told the court he wished to proceed pro se in the 2008 Criminal Case. Jan. 23, 2008, Status Conf. Tr. 12. The trial court conducted a colloquy with Mossy. Id. at 12-23. The court advised Mossy against proceeding pro se and warned him of a number of specific dangers of doing so. Id. at 13-16, 19, 21-22. When Mossy still expressed the desire to proceed to trial pro se after the colloquy and warnings, the court found that Mossy had knowingly, intelligently, and voluntarily waived his right to counsel, and invoked his right to represent himself. See 2008 Criminal Case (Jan. 23, 2008, Order, at 2); ECF 38-4, 12.
B. September 26, 2008, Pretrial Status Conference
At a September 26, 2008, status conference in the 2008 Criminal Case, Mossy appeared pro se. Sept. 26, 2008, Status Conf. Tr. 1. At the start of the hearing, the prosecutor advised the court that Moussa's family had contacted an attorney, Stephen Wight, about representing Mossy in the 2008 Criminal Case. Id. at 3. Wight was in the courtroom and advised the court that he had been "retained very tangentially" by Moussa's family, that he had only come to court that day to talk with Mossy, and that he would not stay in the case if he was not going to be helpful. Id. at 3-4. The court advised Wight that Mossy had elected to proceed pro se. Id. at 4. Wight, in response, stated "Yeah. Okay. Leave it there for now. Okay. That's fine. I'll just back away." Id . Mossy did not ask for Wight to represent him, did not indicate that he wished to revoke his waiver of counsel, and did not state that he had reconsidered his decision to represent himself. Id. at 6-7.
In the status conference, Mossy informed the court that he had health problems, but he did not seek relief relating to his health. Id. at 9. The court advised Mossy during the status conference that he could have Wight act as standby counsel, and that Mossy could discuss that option with Wight, but no further action was taken with regard to Wight representing Mossy in the 2008 Criminal Case. Id. at 6. Mossy participated in the status conference pro se, and represented himself at trial without standby counsel. See Trial Tr. 1, 178.
C. October 6, 2008, Pretrial Status Conference
On the morning of jury selection in the 2008 Criminal Case, October 6, 2008, Mossy asked the judge to recuse herself, asserting that he and the judge did not like each other, and that the judge would hold the remand of the sentence in the 2005 Criminal Case against him in the 2008 Criminal Case. Oct. 6, 2008, Status Conf. Tr. 3-4. Stating that she had no animus against Mossy for any reason, the judge again declined to recuse herself. Id. at 19.
D. Trial and Sentencing
The evidence commenced in Moussa's trial on October 7, 2008. Trial Tr. 15. Mossy chose not to attend the morning session of the trial on that date because he disagreed with the judge's decision not to recuse herself in the case. Id. at 19. During Moussa's absence, Najwa testified that, on March 26, 2005, she received a call from a family friend, Sleiman Aziz, who told Najwa that Mossy had asked Aziz to call Najwa to try to convince her to drop the charges against him and not to testify against him. Id. at 33. The prosecutor played a recording of a conversation in Arabic that had been recorded at the RCHC, and Najwa identified the voices on the recording as Aziz's and Moussa's. Id. at 35.
Later that day, Mossy returned to the courtroom to participate in the trial. Id. at 56. The state then called Nadia Ezzat, the translator hired by the state to translate and transcribe the March 26, 2005, phone call from Mossy to Aziz. Id. at 57, 60. Ezzat testified to her qualifications as a translator and authenticated the transcript she had made of the phone conversation. Id. at 58-60. The court admitted Ezzat's transcript in evidence. Id. at 63.
When Mossy began to cross-examine Ezzat, he attempted to use a translation that one of his former attorneys had obtained, and that he had used to prepare for trial. Id. at 67-69. The court did not let Mossy ask Ezzat questions based on Moussa's transcript, stating that Ezzat had no personal knowledge of the transcript. Id. at 69.
Mossy objected to having to use Ezzat's transcript for cross-examination as he had not seen it before. Id. at 68, 70. The state later noted that it had sent a copy of the transcript to Moussa's former attorney, Evan Nappen. Id. at 189. Mossy had moved pretrial for discovery and, at that time, had advised the court and the state that he had been unable to obtain discovery from Nappen. Id. at 188. The court had denied Moussa's pretrial discovery request. Id. at 189; 2008 Criminal Case (Order Apr. 17, 2008), ECF No. 31-3, 28.
At trial, Mossy told the court that he was unable to cross-examine Ezzat with the transcript as he had not had it before trial. Trial Tr. at 69-70, 190. The court told Mossy that he would have to use Ezzat's transcript during crossexamination, telling Mossy: "[Y]ou need to use [Ezzat's] transcript, and if you can't, we'll have to move on." Id. at 69. Mossy did not ask further questions of Ezzat or crossexamine her about her translation. Id. at 70.
The state then called Aziz to testify. Id. at 71. Aziz testified that Mossy "didn't ask me to do nothing." Id. at 83. Aziz admitted to telling Najwa she should drop the charges and the divorce proceedings, but stated that he did so of his own volition. Id. at 98. Aziz admitted that he had given a written statement to the police stating that Mossy had, during Aziz's March 26, 2005, visit to the RCHC, asked Aziz to call Najwa. Id. at 84, 107. The police statement was admitted in evidence as a full exhibit. Id. at 135. Mossy, on cross-examination, attempted to place in evidence a previous statement Aziz had made to an investigator working for one of Moussa's previous attorneys. Id. at 103-05. The court did not allow the statement to be admitted as a full exhibit, as it had not been provided to the state in reciprocal discovery. Id. at 104-05.
During the charging conference at Moussa's trial, Mossy objected to the introduction of the Ezzat translation in evidence because he had not received it in pretrial discovery. Id. at 190-91. The court compared the Ezzat transcript with the transcript Mossy had sought to use in cross-examining Ezzat, found that they were similar but did contain differences, and allowed both transcripts to be admitted in evidence. Id. at 191-92.
On October 8, 2008, after closing arguments and jury instructions, the jury found Mossy guilty of both charges. Id. at 228. On November 14, 2008, the court sentenced Mossy to serve 3-6 years in prison for witness tampering, and to concurrently serve 12 months in jail on the stalking charge. 2008 Criminal Case (Order Nov. 14, 2008), ECF No. 38-4, 5. Mossy was ultimately granted 880 days of credit toward that sentence for time he had served prior to trial. 2008 Criminal Case (Order Feb. 11, 2009), ECF No. 31-3, 51-52, 54. The award of pretrial credit represented the time Mossy had spent incarcerated since June 19, 2006, the date on which Mossy finished serving all of the jail time imposed for the probation violation (five months) and for the 2005 Criminal Case (twelve months). See id.; see also Mossy, No. 2008-0806, at 1-2.
IV. Post-Conviction Litigation
A. Direct Appeal
Mossy, through court-appointed counsel, appealed his convictions in the 2008 Criminal Case to the NHSC. On November 8, 2011, the NHSC affirmed Moussa's convictions in the 2008 Criminal Case. See Mossy II, at 1.
B. State Petition for a Writ of Habeas Corpus
On August 7, 2012, Mossy filed a petition for a writ of habeas corpus in the New Hampshire Superior Court, sitting at Merrimack County ("MCSC"), asserting eleven claims for relief alleging substantive violations of his federal constitutional rights. Mossy also asserted a twelfth claim, alleging that his appellate counsel in the 2008 Criminal Case had provided him with ineffective assistance of counsel by failing to raise federal constitutional claims on direct appeal concerning the eleven substantive issues raised in his state habeas action. See Mossy v. Gerry, No. 217-2012-cv-582 (N.H. Super. Ct., Merrimack Cnty. Jan. 2, 2012), ECF No. 23-5 ("MCSC Habeas Order"). On January 2, 2013, the MCSC denied Moussa's state habeas petition and granted the state's motion to dismiss. See MCSC Habeas Order, at 16, ECF No. 23-5, 17. Mossy appealed the decision. See Notice of Appeal, ECF 23-8, 1. The NHSC declined the appeal on June 3, 2013, see Mossy v. Warden, No. 2013-0185 (N.H. June 3, 2013), ECF No. 23-9, 1, and denied Moussa's motion to reconsider on August 15, 2003. Mossy, No. 2013-0185 (N.H. Aug. 15, 2013), ECF No. 23-9, 15.
C. Federal Petition
Mossy filed this § 2254 habeas action in 2012, after he had served the entire sentence imposed in the 2008 Criminal Case, but while he remained incarcerated on a sentence imposed to run consecutively to his 2008 Criminal Case sentence. On January 17, 2014, this court identified twelve claims asserted in the Petition. See Doc. No. 24 (Jan. 17, 2014, Order) ("January 17 Order"). On November 25, 2014, this court dismissed Claim 11 as untimely, as it related to the 2005 Criminal ...