United States District Court, D. New Hampshire
Joel G. Verenbec
Warden, Northern New Hampshire Correctional Facility. Opinion No. 2015 DNH 171
LANDYA B. McCAFFERTY, District Judge.
Before the court is the respondent warden's motion for summary judgment on Claim 4(a) (doc. no. 41), the only claim remaining in Joel Verenbec's petition for a writ of habeas corpus in this court, filed pursuant to 28 U.S.C. § 2254. Verenbec has objected to the motion (doc. no. 47); respondent has replied (doc. no. 48); and Verenbec has filed a surreply (doc. no. 49).
Verenbec's § 2254 petition challenges his 2008 conviction on two counts of pattern aggravated felonious sexual assault on J.P., the minor daughter of Verenbec's former girlfriend. See State v. Verenbec, Nos. 07-S-579-81 (N.H. Super. Ct., Merrimack Cty.) ("Trial"). J.P. was eleven at the time of trial, and she was the first witness.
After J.P. was called as a witness, Attorney Maggiotto, outside the hearing of the jury, moved for a recess on the basis that J.P., who had not yet entered the courtroom, was crying in the courthouse hallway, and that if she were escorted into the courtroom crying, his client would be unfairly prejudiced. Trial Tr., vol. 1, at 28. The prosecutor explained that J.P. wanted her mother to go in with her. The trial court ruled that J.P.'s mother could be in the courtroom during J.P.'s testimony. The trial court then noted that J.P. had entered the courtroom, and Attorney Maggiotto asked whether the court intended to deny his motion for a recess. The trial court did not directly respond to the motion. Attorney Maggiotto asked the prosecutor whether a recess would help J.P. calm down, and the prosecutor said it would not, at that point. Id. Attorney Maggiotto did not press his motion further, and the trial then proceeded.
J.P. testified that Verenbec was her babysitter on weekends when her mother worked, and that when he was babysitting her, Verenbec would tell her to remove her clothes, and then he would touch her, lick her, and use two fingers and his tongue on the inside and outside of her "private parts." Trial Tr., vol.1, at 61-74, 80-81. J.P. testified that these incidents began when Verenbec moved into her mother's apartment in 2003 and ended when he moved out in November 2004. Id. at 79, 81. J.P. did not tell anyone about the incidents until she told her aunt, while visiting her in West Virginia in 2006. See State v. Verenbec, No. 2009-2010 (N.H. May 14, 2010), slip op. at 1 (doc. no. 27-3, at 21). Verenbec testified at trial and denied sexually assaulting J.P. Trial Tr., vol. 3, at 347-48. The jury was charged at the end of the case to base the verdict solely on the evidence presented, and on the law as explained by the court, "without prejudice, without fear and without sympathy." Id. at 423.
The jury convicted Verenbec, and he was sentenced to serve a 5-10 year prison sentence. No timely direct appeal of Verenbec's conviction was filed. In 2012, the New Hampshire Supreme Court ("NHSC") denied Verenbec's pro se motion for leave to file an untimely direct appeal. See Doc. No. 5, at 10 (State v. Verenbec, No. 2011-0854 (N.H. Jan. 6, 2012)).
Verenbec next filed a habeas corpus petition in Coös County Superior Court ("CCSC"), raising claims of trial court error, double jeopardy violations, and ineffective assistance of counsel. See Doc. No. 15-17 (Petition, Verenbec v. Wrenn, No. 214-2012-cv-00036 (N.H. Super. Ct., Coos Cty.)). During the state habeas proceedings, Verenbec placed in the record letters from six people who were in the courtroom during Verenbec's trial. See Doc. No. 27-3, at 26-32. The letters, dated three years post-trial, describe the spectators' recollections of the circumstances after J.P. was called to testify as follows:
J.P. "scream[ed]" that she did not want to testify or enter the courtroom. One juror, who began to cry as J.P. entered courtroom, "continued to cry throughout J.P.'s testimony and part of that day." Victor Verenbec Letter, Nov. 23, 2011 (doc. no. 27-3, at 26);
J.P was "crying" and "screaming No, No, I don't want to go!'" in a manner that "was very loud and clear." The jurors' "jaws dropped." One juror "began to cry" and "wipe[d] her tears away and bl[e]w her nose into a hanky." Another juror "kept his arms folded after this incident." Diane R. Verenbec Letter, Nov. 24, 2011 (doc. no. 27-3, at 27);
J.P. could be heard "sobbing profusely" outside the courtroom. The "vast majority" of the jury appeared "emotionally stunned." J.P., who was "visibly shaken, " was "wiping away tears and sniffling as she walked past the jury." Dave Koerner Letter, Nov. 28, 2011 (doc. no. 27-3, at 28);
J.P. began "crying hysterically, and her frantic pleas begging not to be forced to go inside the room were very clearly heard throughout the courtroom." J.P. walked past the jury "sniffling and wiping tears away." Lorraine Koerner Letter, Nov. 25, 2011 (doc. no. 27-3, at 29)
J.P. "scream[ed] that she didn't want to come into the courtroom to testify." One juror "began to cry and continued to cry" as J.P. testified. Raymond L. Provencher Letter, dated Dec. 4, 2011 (doc. no. 27-3, at 30);
J.P. stood "in full view of the jurors, " outside the courtroom doors, "crying out loud, resisting entry to testify, " causing a jury "reaction." Ginette Provencher Letter, Dec. 4, 2011 (doc. no. 27-3, at 31).
The CCSC granted the state's motion to dismiss Verenbec's habeas petition without holding an evidentiary hearing. See Doc. No. 18-11, at 1-2 (Verenbec v. Wrenn, No. 214-2012-CV-00036 (N.H. Super. Ct., Coos Cnty. Apr. 18, 2012) ("CCSC Order")). The NHSC declined to accept a discretionary appeal of the CCSC Order. ...