United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
ANDREA K. JOHNSTONE, Magistrate Judge.
Before the court is respondent New Hampshire Attorney General's motion for summary judgment (doc. no. 23) on each claim asserted in Brian Decoito's petition for relief under 28 U.S.C. § 2254. Decoito has objected (doc. no. 28).
The § 2254 petition challenges Decoito's state convictions for falsification of evidence, conspiracy to commit robbery, and assault. Decoito was sentenced on those offenses to a prison term to be served consecutively to the unrelated federal sentence he is presently serving.
Decoito's state charges concerned his involvement in an assault on Michael Tremblay, which occurred while Decoito and Tremblay were both inmates at the Strafford County House of Corrections ("SCHC"). Ronald Wilson, a federal inmate who was Decoito's cellmate in the SCHC after that assault, testified in Decoito's state prosecution regarding incriminating statements Decoito made to Wilson after Decoito had been charged. Decoito moved in the Strafford County Superior Court ("SCSC") to exclude Wilson's testimony, asserting that Wilson was a state agent, and that the state, by corresponding with Wilson and calling him to testify to Decoito's statements, had violated Decoito's rights to counsel and due process. The SCSC denied that motion. The New Hampshire Supreme Court ("NHSC") affirmed Decoito's convictions, specifically ruling against Decoito on the constitutional claims regarding violations of his right to counsel and due process rights, relating to the use of Wilson's testimony to incriminate Decoito. See Doc. No. 23-3 (State v. Decoito, No. 2012-0759 (N.H. Oct. 25, 2013)) ("Decoito I").
Decoito moved for a new trial in the SCSC, asserting a Sixth Amendment claim of ineffective assistance of counsel, relating to his trial counsel's failure to renew Decoito's objection to Wilson's testimony at trial. The SCSC denied that motion on April 10, 2014. See Doc. No. 23-5 (State v. Decoito, No. 219-2011-CR-398 (N.H. Super. Ct., Strafford Cnty. Apr. 10, 2014)) ("Decoito II"). The NHSC declined to review that order. See Doc. No. 23-6 (State v. Decoito, No. 2014-0506 (N.H. Sept. 29, 2014)).
Decoito's § 2254 petition asserts the following claims:
1. The admission of Wilson's testimony violated Decoito's Sixth Amendment right to counsel, and Fourteenth Amendment right to due process, because Wilson was acting as an agent of the state when he acquired, and then testified to, incriminating information from Decoito.
2. The prosecutor violated Decoito's Sixth Amendment right to counsel and Fourteenth Amendment right to due process, by contacting Wilson and recruiting him to act as a state agent.
3. Decoito's conviction was obtained in violation of his Sixth Amendment right to the effective assistance of counsel, in that Decoito's trial counsel did not object to Wilson's testimony when his trial testimony differed from the statements he made during a voir dire outside of the jury's presence.
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 law 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). A state court decision is "contrary to" established federal law, either if it applies substantive law that differs from, and conflicts with, the standard prescribed by the United States Supreme Court, or if it issues a different ruling than that Court did, based on materially identical facts. See Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable application" of federal law is not the same as an incorrect application. See id. at 411. The petitioner must show "^that the state court's ruling on the claim... was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" Scoggins v. Hall, 765 F.3d 53, 57 (1st Cir. 2014) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)), cert, denied, 135 S.Ct. 1007 (2015).
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); see also 28 U.S.C. § 22 54(d)(2). The petitioner bears the burden of rebutting the presumption ...