United States District Court, D. New Hampshire
LANDYA MCCFFERTY UNITED STATES DISTRICT JUDGE
Anthony Dilboy is serving one of the two consecutive sentences he received from the New Hampshire Superior Court after being convicted of two counts of manslaughter. The charges against him arose out of a collision in which he killed two people by driving a pick-up truck at a high rate of speed through a red light and striking another vehicle that had the right of way. Dilboy now petitions for a writ of habeas corpus. See 28 U.S.C. § 2254. Before the court is respondent’s motion for summary judgment. The court heard oral argument in this matter on January 11, 2016. For the reasons that follow, Dilboy’s petition is dismissed.
“[A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Dilboy claims that he is in custody in violation of his Sixth Amendment right to confront the witnesses against him. His claim arises from the trial court’s admission of testimony from Dr. Michael Wagner, who reported the results of blood tests that he did not conduct or observe. In Dilboy’s view, the admission of those test results ran afoul of the United States Supreme Court’s decision in Bullcoming v. New Mexico, which stands for the proposition that
the [Sixth Amendment’s] Confrontation Clause [does not] permit the prosecution to introduce a forensic laboratory report containing a testimonial certification - made for the purpose of proving a particular fact - through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification.
131 S.Ct. 2705, 2710 (2011). The problem with Dilboy’s claim is that even if the trial court’s admission of Dr. Wagner’s testimony did violate the rule announced in Bullcoming, that violation did not result in the conviction for which he is in custody.
Dilboy was convicted of, and is currently serving a sentence for, manslaughter. Under New Hampshire law:
A person is guilty of manslaughter when he causes the death of another:
(a) Under the influence of extreme mental or emotional disturbance caused by extreme provocation but which would otherwise constitute murder; or
N.H. Rev. Stat. Ann. (“RSA”) § 630:2, I. Dilboy was charged with the reckless variant of manslaughter. See Trial Tr. Vol. 1, 3:9, 22.
At the end of Dilboy’s trial, Judge Fauver instructed the jury on manslaughter. The New Hampshire Supreme Court, when ruling on Dilboy’s direct appeal, described Judge Fauver’s jury instructions this way:
The court then stated that manslaughter has “two parts or elements” that the State must prove beyond a reasonable doubt; first, that the defendant “caused the death of another person”; and, second, that he “acted recklessly.” The court defined recklessly, and then discussed the factual allegations in the indictments:
Although you do not need to find all of the factual allegations occurred, you must reach a unanimous decision as to the acts that amount to recklessness. The factual allegations that ...