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Tompson v. State

United States District Court, D. New Hampshire

April 14, 2016

Judith Tompson,
v.
State of New Hampshire.

          REPORT AND RECOMMENDATION

          ANDREA K. JOHNSTONE, Magistrate Judge.

         Before the court is respondent's motion to dismiss (doc. no. 17) Judith Tompson's petition for a writ of habeas corpus, filed under 28 U.S.C. § 2254 (doc. no. 1). Respondent specifically contends that: (1) Tompson did not exhaust her state remedies on her speedy trial claim; and (2) the speedy trial claim lacks merit. See Mot. to Dismiss (doc. no. 17). Tompson objects, maintaining that she exhausted the speedy trial claim, and that she is entitled to relief under § 2254. See Obj. (doc. no. 22).

         Background

         Tompson's § 2254 petition challenges her March 2013 felony and misdemeanor convictions that arose out of a November 14, 2011 incident, in which Tompson, resisting a deputy sheriff's efforts to serve civil process upon her, drove away speeding and then nearly hit that sheriff's cruiser. The sheriff arrested Tompson on that date, and she was originally charged with three misdemeanors relating to the incident.

         A trial was initially scheduled for February 14, 2012, but did not occur on that date. Tompson refused to accept the terms of a plea agreement offered to her on the day of that trial, and the prosecutor said he would seek a felony indictment if she did not accept the plea agreement. The prosecutor then nol prossed the misdemeanors. One month later, Tompson was indicted on three felony counts of reckless conduct.

         Following a three-day jury trial in Rockingham County Superior Court ("RCSC") in March 2013, Tompson was convicted of one felony count of reckless conduct, one lesser-included misdemeanor count of reckless conduct, and two misdemeanors (resisting arrest and disobeying an officer). Tompson's sentence on the reckless conduct charges amounted to two concurrent sixty-day House of Corrections terms, stand committed, followed by probation for two years. Her sentence for disobeying an officer and resisting arrest included a sixty-day House of Corrections sentence, suspended for two years. The New Hampshire Supreme Court ("NHSC") affirmed Tompson's convictions on June 9, 2015. See State v. Tompson, No. 2013-0449 (N.H. June 9, 2015). Tompson has served her concurrent stand-committed sentences, and is now on probation.

         Tompson litigated a post-conviction motion for a new trial in the RCSC, raising claims of ineffective assistance of counsel. The RCSC denied that motion without a hearing, see State v. Tompson, No. 218-2012-CR-00258 (N.H. Super. Ct., Rockingham Cty., May 20, 2014), and the NHSC declined to accept Tompson's appeal of that order. See State v. Tompson, No. 2014-0404 (N.H. Aug. 29, 2014).

         Tompson then filed a § 2254 petition in this court, asserting the following claims:

1. The prosecutor's decision to nol pros the original misdemeanors in February 2012, following Tompson's November 2011 arrest, and the issuance of an indictment in March 2012, upon which Tompson was convicted in March 2013, violated Tompson's Sixth Amendment right to a speedy trial.
2. Tompson's conviction was obtained in violation of her Sixth Amendment right to the effective assistance of counsel at trial in that:
a. Attorney Joseph Malfitani, who represented Tompson in pretrial proceedings, did not file a motion to dismiss for lack of a speedy trial; and
b. Attorney Malfitani did not move to object to the lesser charge of reckless conduct.
3. Tompson's conviction was obtained in violation of her Sixth Amendment right to the effective assistance of counsel at trial in that:
a. Attorney Patrick Fleming, who represented Tompson after Attorney Malfitani withdrew, did not file a motion to dismiss ...

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