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McGrath v. Warden, New Hampshire State Prison

United States District Court, D. New Hampshire

July 19, 2016

Paul J. McGrath
v.
Warden, New Hampshire State Prison Opinion 2016 DNH 118

          ORDER

          Joseph DiClerico, Jr. United States District Judge

         Paul J. McGrath, proceeding pro se, seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction in state court on charges of second degree assault and criminal mischief. In support, McGrath alleges that he received ineffective assistance of counsel and that his right to due process was violated by prosecutorial misconduct and evidentiary errors. The Warden moves for summary judgment on some of McGrath’s claims, and McGrath objects.

         Standard of Review

         Summary judgment is appropriate when the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[1] Fed. R. Civ. P. 56(a). “A genuine dispute is one that a reasonable fact-finder could resolve in favor of either party and a material fact is one that could affect the outcome of the case.” Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir. 2015). Reasonable inferences are taken in the light most favorable to the nonmoving party, but unsupported speculation and evidence that “is less than significantly probative” are not sufficient to avoid summary judgment. Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169, 174 (1st Cir. 2015) (internal quotation marks omitted).

         Background

         The charges against McGrath arose out of an incident between Paul McGrath and his former wife, Donna (now Donna Freeman), on July 19, 2011, at their home in Epsom, New Hampshire.[2] They began arguing earlier in the day about Freeman’s children from a prior marriage.

         That evening, after more verbal exchanges, McGrath approached Freeman and made a fist. She acted defensively to prevent a punch. McGrath then grabbed Freeman around the throat with both hands and squeezed so hard that Freeman had trouble breathing.

         After Freeman kicked McGrath, he released her. Freeman went out to her car, ostensibly to retrieve a house key, and locked the car doors. McGrath got their framed wedding photograph and threw it at the car windshield, which cracked the windshield. Freeman started the car and drove to her night shift job at Cumberland Farms.

         Freeman felt safe at work because McGrath would not walk that far. When she got to work, Freeman called the Epsom police. Officer Ferdinand Cruz responded.

         Cruz saw that Freeman had red marks on her neck and was upset. Freeman told him what had happened with McGrath. While Cruz was talking to Freeman, McGrath called and told her he was sorry. He asked if she had called the police and threatened to damage things in the house. Freeman said that she had called the police. McGrath called back and told her that he was destroying the house.

         Cruz photographed the red marks on Freeman’s neck and her car’s broken windshield. He then went to McGrath’s house but found no one there. After Cruz left, the police dispatcher called Cruz to report that a neighbor had called Freeman because McGrath was breaking furniture and windows at their home. Cruz went back to the house but did not find McGrath. Cruz asked for backup, but the two officers who responded also did not find McGrath.

         When Cruz returned to the house at 2:00 a.m., he saw a light on inside. McGrath came outside with a drink in his hand, but did not show obvious signs of intoxication. Cruz asked McGrath what had happened. McGrath answered that he had argued with Freeman and she grabbed his arm. McGrath said that he put his arm around her neck and choked her, and then Freeman kicked him and walked out of the house. McGrath presented himself for arrest with his hands behind his back. Cruz told him that he was under arrest and took him to the police station.

         Cruz returned to Cumberland Farms to tell Freeman that McGrath was in jail. When Freeman got home after work, she found glass in the front yard. Inside the house, she found broken chairs, other damaged furniture, and smashed glasses and dishes. Later, Freeman discovered that her son’s mattress had been stabbed. Cruz went back to the house to take photographs of the damage.

         Freeman applied for and was granted a restraining order against McGrath. McGrath did not contest the grounds for the restraining order.

         McGrath was charged with one count of second degree assault by strangulation, one count of simple assault, and two counts of criminal mischief. He was represented by appointed counsel, John M. Draghi. The state terminated the simple assault charge by nolle prosequi. The case was tried during May of 2012. McGrath was found guilty on the charges of second degree assault and criminal mischief. He was sentenced to three and a half years to seven years in prison on the assault conviction with suspended sentences on the criminal mischief convictions.

         Draghi moved to withdraw from representing McGrath on November 1, 2012. He cited Rule 1.7(a) of the New Hampshire Rules of Professional Conduct to support the motion. The court granted the motion and appointed new counsel to represent McGrath.

         On July 9, 2013, McGrath, while represented by counsel, filed a motion for a new trial. He raised claims of ineffective assistance of counsel because trial counsel did not retain a medical expert to evaluate Freeman’s injuries shown by red marks on her neck and failed to impeach Officer Cruz’s testimony about McGrath’s oral and physical confessions. He also alleged that the state failed to provide him with favorable and exculpatory evidence, specifically, a police report about an incident at Freeman’s work when an angry customer threw a tick at her that lodged in her neck.

         The state court held a hearing on the motion for a new trial at which it heard testimony from Draghi, McGrath’s former counsel, along with other evidence. The court denied the motion for a new trial and denied the subsequent motion for reconsideration. McGrath filed a notice of discretionary appeal, which the New Hampshire Supreme Court declined to accept.

         McGrath, proceeding pro se, filed a petition for habeas corpus relief under § 2254 in this court in August of 2014. On preliminary review, the magistrate judge identified the following claims in McGrath’s petition:

         1. McGrath’s conviction was obtained in violation of his Sixth Amendment right to the effective assistance of counsel at trial, in that his defense counsel, Attorney Draghi:

a. Failed to impeach EPD Officer Cruz regarding the inconsistencies between his trial testimony and his police report regarding his arrest of McGrath;
b. Failed to consult with and produce a medical expert at trial to testify regarding the red marks on Donna McGrath’s neck;
c. Elected to forego a probable cause hearing, at a time when McGrath was not prepared to contest the state’s bail recommendation;
d. Failed to investigate inconsistencies between EPD Officer Cruz’s police reports relating to McGrath’s arrest;
e. Failed to investigate inconsistencies between EPD Officer Cruz’s police reports and Donna McGrath’s witness statement;
f. Failed to interview Donna McGrath’s Cumberland Farms co-worker, the McGraths’ neighbors, and witnesses who saw Donna McGrath’s tick bite;
g. Failed to consult with and/or produce a psychiatrist to provide expert testimony regarding Donna McGrath’s demeanor;
h. Failed to challenge the sufficiency of evidence regarding the amount of property damage attributable to McGrath;
i. Failed to investigate whether McGrath owned the property that he was charged with destroying;
j. Failed to explain to McGrath the significance of the reduction of the criminal mischief charge from a felony to a misdemeanor;
k. Failed to object to hearsay statements; and
1. Failed to pursue the defense approved by McGrath, which was that McGrath did not do any of the charged acts.

         2. McGrath’s conviction was obtained in violation of his Fourteenth Amendment right to due process, in that the prosecutor did not produce to McGrath an exculpatory police report regarding a tick lodged in Donna McGrath’s neck.

         3. McGrath’s conviction was obtained in violation of his Fourteenth Amendment right to due process, in that the prosecutor (a) knowingly allowed EPD Officer Cruz to testify falsely at trial regarding the circumstances surrounding his arrest of McGrath, and (b) knowingly allowed Donna McGrath to testify falsely regarding McGrath grabbing her arm.

         4. McGrath’s conviction was obtained in violation of his Fourteenth Amendment right to due process, in that the evidence was insufficient to show that McGrath acted knowingly and purposefully, to establish guilt beyond a reasonable doubt.

         5. McGrath’s conviction was obtained in violation of his Fourteenth Amendment right to due process, in that the prosecutor’s opening statement prejudiced the jury by making McGrath out to be a monster, and included remarks about McGrath’s conduct that were not supported by the evidence.

         The magistrate judge informed McGrath that he had not shown that all of his claims had been exhausted. McGrath was given time either to move to stay the petition while he exhausted all claims or to move to amend to forego the unexhausted claims. McGrath moved to stay and then filed a pleading in his state criminal case to exhaust the claims he raised here.

         In its order dated December 23, 2014, the Merrimack County Superior Court stated that McGrath had “filed a pleading which appears to be another attempt to raise a claim of ineffective assistance of counsel. He also seeks to have this Court recuse itself.” The motion was denied. McGrath filed a motion to amend on January 9, 2015, that does not appear to have been addressed by the court.[3] McGrath also appealed the court’s December 23, 2014, decision, and the New Hampshire Supreme Court declined the notice on July 13, 2015. The stay was lifted on October 15, 2015.

         On October 26, 2015, McGrath filed an addendum to his petition, and the Warden did not object. The magistrate judge identified additional claims to support the petition as follows (document no. 37):

         6. McGrath’s conviction was obtained in violation of his Sixth Amendment right to the effective assistance of counsel at trial, in that his defense counsel, Attorney Draghi:

a. Did not conduct any investigation of the charges against McGrath, and did not hire an investigator;
b. Did not come up with a trial strategy;
c. Failed to interview property managers William and Maureen Carone regarding Donna’s tick bite;
d. Failed to interview the Elks Club bartender regarding McGrath’s demeanor, for the purpose of developing evidence that would demonstrate that McGrath did not act knowingly and purposefully;
e. Failed to interview Donna’s Cumberland Farms co-workers regarding Donna’s appearance after the assault, for the purpose of developing evidence that Donna’s demeanor was not consistent with having been assaulted;
f. Failed to interview Donna’s next door neighbor Shyla Valley, regarding whether Valley told Donna that McGrath was smashing glass in Donna’s house;
g. Failed to interview Donna’s neighbor Dale, regarding the broken glass on the ground the morning after the incident;
h. Did not obtain the video of the EPD booking area at the time of McGrath’s booking, which would have been evidence that McGrath had not acted knowingly and purposefully, as he had been drinking, suffered memory loss, and had taken medications for chronic depression and bi-polar disorder;
i. Did not consult with, or produce at trial, an expert, who would have testified as to noticeable changes between three pictures of Donna’s neck, and as to whether there were hand or finger prints on Donna’s neck in ...

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