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Ayer v. Warden, New Hampshire State Prison

United States District Court, D. New Hampshire

April 22, 2015

Daniel E. Ayer, Sr., Petitioner
Warden, New Hampshire State Prison, Respondent

ORDER No. 2015 DNH 081.

STEVEN J. McAULIFFE, District Judge.

In August of 1999, petitioner, Daniel Ayer, shot and killed Mark Rowland. Ayer was tried and convicted of first degree murder. The New Hampshire Supreme Court affirmed his conviction on appeal, and the United States Supreme Court denied his petition for writ of certiorari. Ayer's efforts to obtain habeas corpus relief in the state courts were similarly unsuccessful. He then sought habeas relief in this court, advancing nine claims.

Pending before the court are: (1) Ayer's motion to amend his habeas corpus petition; and (2) the State's motion for summary judgment as to all claims advanced in that petition. For the reasons discussed, Ayer's motion to amend is denied and the State's motion for summary judgment is granted.

I. Motion to Amend Habeas Petition.

In his motion to amend, Ayer seeks to add a new claim to his pending petition for a writ of habeas corpus. Specifically, he asserts that his constitutionally protected right to access the court has been violated because he did not receive copies of three of the State's filings in this case. In her Report and Recommendation, the magistrate judge properly concluded that Ayer's proposed claim is not appropriate for habeas relief and recommended that the court deny his motion.[1]

After due consideration, I herewith approve the Report and Recommendation of Magistrate Judge Andrea K. Johnstone dated March 30, 2015 (document no. 90), for the reasons set forth therein. Ayer's motion to amend his habeas corpus petition (document no. 87) is denied.

II. Motion for Summary Judgment on Ayer's Petition.

The court now turns to the nine claims for relief advanced in Ayer's petition, all of which are the subject of the State's motion for summary judgment.

Standard of Review

Since passage of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") and its amendments to 28 U.S.C. § 2254, the power to grant federal habeas relief to a state prisoner with respect to claims adjudicated on the merits in state court has been substantially limited. A federal court may not disturb a state conviction unless the state court's adjudication "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). And, a habeas petitioner seeking relief under that provision faces a substantial burden insofar as "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1).

Alternatively, habeas relief may be granted if the state court's resolution of the constitutional issues before it "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). The Supreme Court explained the distinction between decisions that are "contrary to" clearly established federal law, and those that involve an "unreasonable application" of that law as follows:

Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams v. Taylor , 529 U.S. 362, 412-13 (2000). The Court also noted that an "incorrect" application of federal law is not necessarily an "unreasonable" one.

[T]he most important point is that an unreasonable application of federal law is different from an incorrect application of federal law.... Under § 2254(d)(1)'s "unreasonable application" clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.

Id. at 410-11 (emphasis in original). So, to prevail, the habeas petitioner must demonstrate that "the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter , 562 U.S. 86, 103 (2011).

Finally, it probably bears noting that a state court need not rely upon, nor need it even cite, Supreme Court precedent in order to avoid resolving a petitioner's claims in a way that is "contrary to" or involves an "unreasonable application of" clearly established federal law. See Early v. Packer , 537 U.S. 3, 8 (2002) ("Avoiding these pitfalls does not require citation of our cases - indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.") (emphasis in original). In fact, even when a state court has summarily rejected a petitioner's federal claim without any discussion at all, "it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington , 562 U.S. at 99 (emphasis supplied). Under those circumstances - that is, when "a state court's decision is unaccompanied by an explanation, " - the habeas petitioner still bears the burden of "showing there was no reasonable basis for the state court to deny relief." Id. at 98.

As the Supreme Court has noted, AEDPA's amendments to § 2254(d) present a substantial hurdle for those seeking federal habeas relief.

If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings. It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no further.

Harrington , 562 U.S. at 102 (citation omitted).

Only as to federal claims that were presented to the state court but neither adjudicated on the merits nor dismissed by operation of a regularly-applied state procedural rule, may this court apply the more petitioner-friendly de novo standard of review. See, e.g., Clements v. Clarke , 592 F.3d 45, 52 (1st Cir. 2010) ("In contrast, a state court decision that does not address the federal claim on the merits falls beyond the ambit of AEDPA. When presented with such unadjudicated claims, the habeas court reviews them de novo.") (citation omitted).

With those principles in mind, the court turns to Ayer's petition and the State's motion for summary judgment.


On August 20, 1999, Ayer shot and killed Mark Rowland, a social worker who had been working with the New Hampshire Division for Children, Youth and Families. In resolving the claims Ayer presented on direct appeal of his state conviction, the New Hampshire Supreme Court summarized Ayer's criminal conduct, arrest, interrogation, and conviction as follows:

Beginning in 1998, the New Hampshire Division for Children, Youth and Families (DCYF) became involved with the defendant's family, and in July 1999, Family Counselor Mark Rowland of the Nashua Children's Home was assigned to the defendant's case. On August 20, 1999, Rowland was scheduled to meet with the defendant's family. When Rowland arrived that day, the defendant was leaving in his truck. He informed Rowland that he did not want to meet and that he hoped Rowland would leave. The defendant then left the property but remained in the immediate area. Rowland did not leave. When the defendant returned a few minutes later, Rowland told the defendant that he would not leave. The defendant then shot Rowland in the head and fled in his truck. Rowland later died from the gunshot wound.
Within minutes of the shooting, Officer Martin Matthews of the Nashua Police Department received a radio dispatch about the shooting and rushed to the scene. Immediately after he arrived, emergency medical personnel arrived and began treating Rowland. As soon as the scene was secured, Matthews was ordered to begin investigating this urgent situation. He scanned the area for potential witnesses to the shooting and for anyone who might know where the shooter was. His attention was drawn to a woman, later identified as Joan Ayer, the defendant's wife, who was standing near the scene, crying hysterically. As Matthews approached Mrs. Ayer, but before he asked any questions, she blurted out, "He had said that morning that he was going to shoot him, " and, "he'd been sitting across the street in his truck all morning waiting for him." Matthews asked to whom Mrs. Ayer was ...

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