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Fischer v. New Hampshire Adult Parole Board

United States District Court, D. New Hampshire

September 2, 2016

David Fischer,
v.
New Hampshire Adult Parole Board.

          David Fischer, Petitioner, Pro Se.

          NH Parole Board, Respondent, represented by Elizabeth C. Woodcock, NH Attorney General's Office (Criminal).

          REPORT AND RECOMMENDATION

          ANDREA K. JOHNSTONE, Magistrate Judge.

         After a jury trial in the New Hampshire Superior Court, David Fischer ("Fischer") was convicted "on two counts of second degree assault, both of which resulted in extended terms of imprisonment." State v. Fischer (Fischer I), 165 N.H. 706, 709 (2013) (citing N.H. Rev. Stat. Ann. ("RSA") §§ 631:2, I(c) & 651:6, II(a)). Fischer now petitions for a writ of habeas corpus. See 28 U.S.C. § 2254. Before this magistrate judge for a report and recommendation are respondent's motion for summary judgment and a filing from Fischer captioned "Memorandum of Law in Support of Petition for Writ of Habeas Corpus and in Objection to Respondent's Motion for Summary Judgment." For the reasons detailed below, respondent's motion for summary judgment should be granted.

         Background

         Fischer's convictions resulted from events that took place in the home he shared his wife, Tracy.[1] In its opinion on Fischer's direct appeal, the New Hampshire Supreme Court ("NHSC") described those events this way:

At 10 p.m. on February 18, 2010, the victim, the defendant's wife, returned to their home in Dover from her shift as a nurse at York Hospital. She and the defendant argued. She then removed her rings, threw them at him, and told him that she "couldn't do this any more." In response, the defendant grabbed her by the throat, pushed her head into the wall behind her with such force that it dented the wall, threw her to the floor, and left the house....
The defendant turned off the lights in the kitchen and went upstairs. When the victim went from the living room into the kitchen and turned the lights back on, the defendant came downstairs, turned the lights off, and lunged at her. He grabbed her from behind, put his hand over her mouth, and brought her to the floor. Then he stepped on her head, preventing her from getting up. He grabbed her by the hair and sweatshirt and dragged her into the living room. The sweatshirt tightened around her neck so she could not breathe or speak....
In the morning, the defendant apologized and said that he wanted "to fix things, " but the victim said that she could not stay with him. As she was leaving the house for work, the defendant charged at the door, slamming it on her finger.

Fischer I, 165 N.H. at 709.

         Based upon the foregoing, Fischer "was indicted on three counts of second degree assault." Fischer I, 165 N.H. at 710. One charge arose from the door-slamming incident. The other charges arose from two incidents that took place the night before, which resulted in two separate indictments. One of them charges that Fischer

RECKLESSLY CAUSE[D] BODILY INJURY TO ANOTHER UNDER CIRCUMSTANCES MANIFESTING AN EXTREME INDIFFERENCE TO THE VALUE OF HUMAN LIFE IN THAT [HE] GRABBED TRACY FISCHER BY THE NECK, SLAMMED HER HEAD INTO A WALL AND THREW HER ONTO THE FLOOR, CAUSING CONTUSIONS AND MUSCLE STRAIN TO HER HEAD AND NECK, SUCH CONDUCT CONSTITUTING CIRCUMSTANCES MANIFESTING AN EXTREME INDIFFERENCE TO THE VALUE OF HUMAN LIFE.

         The other indictment charges that Fischer

RECKLESSLY CAUSE[D] BODILY INJURY TO ANOTHER UNDER CIRCUMSTANCES MANIFESTING AN EXTREME INDIFFERENCE TO THE VALUE OF HUMAN LIFE IN THAT [HE] KNOCKED TRACY FISCHER TO THE FLOOR, STEPPED ON HER HEAD AND DRAGGED HER BY HER HAIR AND SWEATSHIRT HOOD FROM THE KITCHEN INTO THE LIVING ROOM, CAUSING CONTUSIONS AND MUSCLE STRAIN TO HER HEAD AND NECK, SUCH CONDUCT CONSTITUTING CIRCUMSTANCES MANIFESTING AN EXTREME INDIFFERENCE TO THE VALUE OF HUMAN LIFE.

         Fischer was tried on all three charges.

         After the State rested its case, defense counsel moved to dismiss all three charges, on grounds that the State had not introduced sufficient evidence to carry its burden of proof. Judge Brown denied the motion. The jury acquitted Fischer of the charge arising from the door-slamming incident, but found him guilty on the two other counts. For each of his convictions, Fischer was sentenced to an extended term of imprisonment, pursuant to RSA 651:6, II(a).

         Fischer appealed his convictions, and was represented by counsel on appeal. The NHSC described Fischer's claims of error this way:

(1) the trial court erred in admitting testimony under the excited utterance hearsay exception; (2) the evidence was insufficient to prove that his conduct manifested extreme indifference to the value of human life; (3) the trial court erred in instructing the jury on extreme indifference to the value of human life; (4) the trial court violated his rights against double jeopardy by sentencing him on both second degree assault convictions; (5) the trial court erred in imposing extended terms of imprisonment; and (6) the trial court erred in failing to instruct the jury that it must unanimously find a specific bodily injury.

Fischer I, 165 N.H. at 709.

         Notwithstanding the fact that he was represented by counsel, Fischer made several attempts to file pro se briefs in the NHSC, all of which were rebuffed.[2]

         While Fischer's appeal was pending, he filed a motion for a new trial in the superior court. In that motion, he claimed that his trial counsel provided him with ineffective assistance due to his:

(1) fail[ure] to investigate the victim and interview witnesses; (2) failure to seek the victim's mental health record; (3) failure to seek timely discovery of text messages and phone records; (4) failure to seek production of the victim's work records; (5) failure to obtain a transcript of the victim's prior sworn testimony from a protection order hearing held on March 2, 2010; (6) failure to obtain the services of a pharmaceutical expert; (7) conceding guilt in [his] closing argument; (8) failure to clarify issues in the closing argument; and (9) failure to object to jury instructions.

         Resp't's Mem. of Law (Doc. No. 12-1) 6. Petitioner concurs with respondent's characterization of the issues he raised in his motion for a new trial. Judge Wageling denied Fischer's motion, and denied his motion for reconsideration. Fischer appealed, and the NHSC declined his appeal.

         After the NHSC affirmed his convictions, Fischer petitioned the superior court for a writ of habeas corpus, asserting claims of ineffective assistance of trial counsel and ineffective assistance of appellate counsel. With regard to trial counsel, Fischer identified the following grounds:

(1) failure to move for a directed verdict based on the sufficiency of the evidence on the element of bodily injury; (2) failure to object to the trial court's instruction on bodily injury; (3) failure to object to the amendment of the indictments; (4) failure to request a unanimity instruction; (5) failure to move to exclude witness Schumaker's testimony as inadmissible hearsay; and (6) failure to ensure that jury was instructed that "extreme indifference to the value of human life" was a heightened form of ordinary recklessness.

         Resp't's Mem. of Law (Doc. No. 12-1) 6-7. With regard to appellate counsel, he raised these grounds:

(1) failure to challenge the trial court's instruction on bodily injury on appeal as plain error; (2) failure to challenge the amendment of the indictments on appeal; (3) failure to provide the state court with case law on the failure to give a unanimity instruction as plain error; and (4) failure to "properly argue" that [the] jury was instructed that "extreme indifference to the value of human life" was a heightened form of ordinary recklessness.

         Id. at 7. As with his motion for new trial, petitioner concurs with respondent's characterization of the issues he raised in his petition for a writ of habeas corpus in the state courts. Judge Schulman denied the petition. Fischer appealed, and the NHSC declined his appeal.

         This action followed. In it, petitioner raises the twelve claims described in the order on preliminary review, Document No. 2. Rather than reciting petitioner's claims here, en masse, the court describes them individually, in the body of this report and recommendation.

         The Legal Standard

         A federal court may grant habeas corpus relief "only on the ground that [a petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Moreover, "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted unless it appears that... the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). "Generally speaking, a petitioner's failure to exhaust all state remedies is fatal to the prosecution of a federal habeas case.'" Sanchez v. Roden, 753 F.3d 279, 294 (1st Cir. 2014) (quoting Coningford v. Rhode Island, 640 F.3d 478, 482 (1st Cir. 2011)). To exhaust the remedies available in state court, "a petitioner must have tendered his federal claim in such a way as to make it probable that a reasonable jurist would have been alerted to the existence of the federal question." Jaynes v. Mitchell, 824 F.3d 187, 192 (1st Cir. 2016) (quoting Sanchez, 753 F.3d at 294). However, "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2).

         Turning to the standard of review, the power of the federal courts to grant habeas corpus relief to state prisoners has been significantly limited by passage of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d). Under that statute, when a prisoner brings a claim in federal court that "was adjudicated on the merits in State court proceedings, " 28 U.S.C. § 2254(d),

[f]ederal habeas relief may not be granted... unless it is shown that the earlier state court's decision "was contrary to" federal law then clearly established in the holdings of this Court, [28 U.S.C.] § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 412 (2000); or that it "involved an unreasonable application of" such law, § 2254(d)(1); or that it "was based on an unreasonable determination of the facts" in light of the record before the state court, § 2254(d)(2).

Harrington v. Richter, 562 U.S. 86, 100 (2011) (parallel citations omitted); see also Logan v. Gelb, 790 F.3d 65, 70 (1st Cir. 2015). As to the distinction between decisions that are contrary to federal law and those that involve an unreasonable application of such law, the Supreme Court has explained:

Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Taylor, 529 U.S. at 412-13. However, if a claim has not been adjudicated on the merits in state court, it is subject to de novo review. See Jaynes, 824 F.3d at 192 (citation omitted).

         Discussion

         I. Claim One

         Petitioner first claims that RSA 631:2, I(c), the second degree assault statute under which he was convicted, is unconstitutionally vague, in violation of the Fifth and Fourteenth Amendments.[3] Petitioner first raised this issue in a pre-trial motion to dismiss. That motion was denied, but the record appears to include no written ruling on it. Fischer asserted the putative unconstitutionality of RSA 631:2, I(c) in his notice of appeal to the NHSC, but his appellate counsel did not brief that issue. Thereafter, Fischer raised it in the pro se supplemental brief he attempted to submit to the NHSC.

         Respondent argues that it is entitled to judgment as a matter of law on Claim One because: (1) Fischer waived it in the state courts; (2) the claim involves only the interpretation of a state statute, which is not the proper subject of federal habeas review; (3) the claim is unexhausted; and (4) the claim fails on the merits.

         Respondent's first argument lack merit. As Judge McAuliffe has explained:

A habeas petitioner can fail to exhaust a claim by waiving it. Or, a claim may be procedurally defaulted when a state court determines that a criminal defendant has waived it. But saying that a claim has been "waived, " without discussing exhaustion or procedural default, does not advance a meritorious argument.

         Haniffy v. Gerry, No. 08-cv-268-SM, 2010 WL 1462346, at *1 (D.N.H. Apr. 12, 2010) (footnote omitted).

         In its second argument, respondent relies upon Estelle v. McGuire, which excluded from federal habeas review an inquiry into whether certain "evidence was incorrectly admitted pursuant to California law, " 502 U.S. 62, 68 (1991) (internal quotation marks and ellipsis omitted). But Claim One does not involve a determination of whether the trial court followed New Hampshire law; it is a claim that a New Hampshire statute violates the United States Constitution. Thus, Estelle is of no help to respondent.

         Turning to exhaustion, respondent argues that the manner in which Fischer tendered his vagueness claim in his pro se supplemental brief to the NHSC was insufficient to adequately present a federal constitutional claim to that court. Assuming, without deciding, that presentation of an issue in a brief that was stricken by the NHSC counts as presentation for the purposes of exhaustion, which respondent appears to concede, Fischer adequately presented his federal claim to the NHSC. In his brief, he relied upon a quotation from State v. Saucier, 128 N.H. 291, 296-97 (1986), which articulates a legal standard concerning vagueness that is virtually identical to the constitutional standard stated by the U.S. Supreme Court in FCC v. Fox Television Stations, Inc., 132 S.Ct. 2307, 2317 (2012). That was sufficient to exhaust the state court remedies available for redressing the issue on which Claim One is based. See Sanchez, 753 F.3d at 294 (describing various ways in which exhaustion requirement may be met).[4]

         Because respondent's first three arguments are all unavailing, the court turns to the merits.

         As a preliminary matter, respondent's brief is silent on the standard of review for Claim One.[5] Petitioner's brief follows suit.[6] Given petitioner's contention that he exhausted the issue he presents in Claim One by including it in his pro se supplemental brief, the NHSC's refusal to accept that brief, in reliance upon State v. Belton, 150 N.H. 741, 750 (2004), would appear to be a decision on the merits, engendering the highly deferential AEDPA standard of review. However, the state court's rejection of petitioner's vagueness challenge even survives de novo review.

         The court begins its discussion by stating the relevant legal principles:

A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required. See Connally v. General Constr. Co., 269 U.S. 385, 391 (1926) ("[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law"); Papachristou v. Jacksonville, 405 U.S. 156, 162 (1972) ("Living under a rule of law entails various suppositions, one of which is that [all persons] are entitled to be informed as to what the State commands or forbids'" (quoting Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939) (alteration in original))). This requirement of clarity in regulation is essential to the protections provided by the Due Process Clause of the Fifth Amendment. See United States v. Williams, 553 U.S. 285, 304 (2008). It requires the invalidation of laws that are impermissibly vague. A conviction or punishment fails to comply with due process if the statute or regulation under which it is obtained "fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement." Ibid.

Fox Television, 132 S.Ct. at 2317 (parallel citations omitted).

         The criminal statute under which Fischer was convicted, and that he now challenges as unconstitutionally vague, provides that "[a] person is guilty of a class B felony if he... [r]ecklessly causes bodily injury to another under circumstances manifesting extreme indifference to the value of human life." RSA 631:2, I(c). According to petitioner, RSA 631:2, I(c) is unconstitutionally vague because it includes two distinct states of mind, "recklessness" and "extreme indifference to the value of human life." Claim One fails because even if a criminal statute identifying two states of mind is unconstitutionally vague, RSA 631:2, I(c) does not include two distinct states of mind.

         In State v. Dufield, 131 N.H. 35 (1988), the NHSC was called upon to construe RSA 630:1-b, I(b), which provides that a "[a] person is guilty of murder in the second degree if... [h]e causes [the] death [of another] recklessly under circumstances manifesting an extreme indifference to the value of human life." In its decision in Dufield, the NHSC rejected the defendant's argument that "indifference" was "an element of an offense comparable to a knowing or purposeful state of mind." 131 N.H. at 37. Rather, the court held that

the function of proving the existence of "circumstances manifesting extreme indifference" is to establish, not a subjective state of mind, but a degree of divergence from the norm of acceptable behavior even greater than the "gross deviation" from the "law-abiding" norm, by which reckless conduct is measured [such that] the words in question would describe a way of objectively measuring such a deviation.

         Id. (emphasis added). Because the NHSC has held that the phrase "under circumstances manifesting extreme indifference" does not denote a mental state, RSA 631:2, I(c) does not include two distinct states of mind a defendant must possess. Because the purported ambiguity upon which Claim One rests does not exist, Claim One necessarily fails.

         II. Claim Two

         Petitioner's second claim is that the trial court violated his constitutional rights, under the Fifth, Sixth, and Fourteenth Amendments, by giving a jury instruction that failed to fairly, adequately, and accurately, explain two elements of second degree assault: "recklessly" and "under circumstances manifesting extreme indifference to the value of human life." In his notice of appeal, Fischer challenged the trial court's decision not to give the instruction he had requested on the elements of RSA 631:2, I(c), and also challenged, on constitutional grounds, the instruction the court did give. The brief that Fischer's appellate counsel submitted to the NHSC includes an argument that the trial court erroneously instructed the jury on one element of second degree assault: "under circumstances manifesting extreme indifference to the value of human life." Fischer also challenged the trial court's jury instructions in the pro se supplemental brief he attempted to submit to the NHSC. In that brief, he framed an argument that focused on the interrelationship between "recklessness" and "extreme indifference" and built on his misapprehension that those two elements describe two different states of mind.

         Respondent argues that it is entitled to judgment as a matter of law on Claim Two because: (1) Fischer waived it in the state courts; (2) the claim involves only the interpretation of state law; (3) the claim is unexhausted; and (4) the claim fails on the merits. The court proceeds to the merits, see 28 U.S.C. § 2254(b)(2), and reviews Claim Two de novo.

         When he instructed the jury, Judge Brown explained the elements of second degree assault in the following way:

[T]he remaining two charges... of second degree assault involving extreme indifference have three parts or elements....
[T]he State must prove the following beyond a reasonable doubt. That the Defendant caused bodily injury to another person and the bodily injury was inflicted under circumstances manifesting extreme indifference to the value of human life. And the Defendant acted recklessly.
Now, you already have the definition of recklessly. I gave it to you a moment ago. That definition, and all of its subparts, applies to these two charges.[7]
Now, to act under circumstances manifesting extreme indifference to the value of a human life means that the Defendant's acts demonstrate a blatant disregard for the risk to... Tracy Loignon's life. It's not necessary that the injury - or a series of injuries themselves be life-threatening.

         Trial Tr. (Dec. 8, 2010) 159:23 - 160:15.

         Petitioner's claim, as set out in the brief his appellate counsel submitted to the NHSC, is that the trial court erred by failing to give the following instruction:

[P]roof of extreme indifference to the value of human life requires more than a demonstration that the Defendant had created and disregarded a substantial risk of death. "Extreme indifference to the value of human life" requires proof beyond a reasonable doubt of a "blatant disregard" of a substantial and [un]justifiable risk of death.

         The NHSC disagreed, "find[ing] no error in the trial court's instructions, " Fischer I, 165 N.H. at 714, and noting that the trial court's instruction "mirrored the language that [it had] approved regarding the requirements for second degree assault, " id. (citing State v. Fletcher, 129 N.H. 641, 644 (1987); State v. Bailey, 127 N.H. 416, 424 (1985)).

         Having outlined the factual basis for Claim Two, the court turns to the governing law:

"Instructions in a state trial are a matter of state law to which substantial deference is owed." Niziolek v. Ashe, 694 F.2d 282, 290 (1st Cir. 1982). "Because federal habeas relief does not lie for errors of state Trial Tr. (Dec. 8, 2010) 158:19 - 159:8. law, federal habeas review of a state court's application of [state law] is limited, at most, to determining whether the state court's finding was so arbitrary or capricious as to constitute an independent due process... violation." Lewis v. Jeffers, 497 U.S. 764, 780 (1990).
"Before a federal court may overturn a conviction resulting from a state trial [because of an erroneous jury instruction], it must be established not merely that the instruction is undesirable, erroneous, or even universally condemned, ' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Cupp v. Naughten, 414 U.S. 141, 147 (1973).... To establish a due process violation, the petitioner must show that the allegedly defective jury instruction "so infected the entire trial that the resulting conviction violates due process." [Estelle, 502 U.S. at 72].

         Lucien v. Spencer, No. CA07-11338-MLW, 2015 WL 5824726, at *11-12 (D. Mass. Sept. 30, 2015). A jury charge can violate a criminal defendant's right to due process if the instructions given to the jury, when viewed as a whole, see Cupp, 414 U.S. at 146-47, do not require "[t]he government [to] prove beyond a reasonable doubt every element of a charged offense, " Victor v. Nebraska, 511 U.S. 1, 5 (1994) (citing In re Winship, 397 U.S. 358, 364 (1970)). Thus, jury instructions can violate a criminal defendant's right to due process if they: (1) shift the burden of proof from the prosecution to the defendant, see Cupp, 414 U.S. at 148; or (2) lower the prosecution's burden of proof to something less than beyond a reasonable doubt, see id. at 147-48.

         Petitioner's claim is that the jury charge in his case was constitutionally infirm because the trial court incorrectly instructed the jury on the elements: "recklessly" and "under circumstances manifesting extreme indifference to the value of human life, " RSA 631:2, I(c). Petitioner's argument on this point, which largely follows the argument in his pro se supplemental brief, consists of a lengthy discourse comparing and contrasting the elements of six different criminal statutes, with a focus on the mental state required for each. That discourse, however, appears to be premised on petitioner's misapprehension that the "extreme indifference" element of second degree assault is directed to the mental state necessary to prove that offense. Petitioner, however, fails to recognize that "the fact that [a jury] instruction was allegedly incorrect under state law is not a basis for habeas relief, " Estelle, 502 U.S. at 71-72 (citing Marshall v. Lonberger, 459 U.S. 422, 438 n.6 (1983)). Even if the trial court gave an instruction that misstated New Hampshire law, and the NHSC erroneously affirmed the trial court on this issue, that would not entitle Fischer to habeas relief. See id.

         Petitioner attempts to evade the rule of Estelle by arguing that improperly instructing the jury on an element of an offense is analogous to omitting an element, and that the disputed instruction is sufficiently erroneous to count as a constructive omission that deprived him of due process. The court does not agree. In the Supreme Court opinion on which petitioner relies, the Court pointed out that on direct review, the omission of an element from a jury instruction is subject to harmless-error analysis because "[u]nlike such defects as the complete deprivation of counsel or trial before a biased judge, an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence." Neder v. United States, 527 U.S. 1, 9 (1999) (emphasis omitted). Neder eviscerates any claim that the jury instructions that petitioner challenges in Claim Two deprived him of due process.

         In light of the rule stated by the Supreme Court in Estelle, Claim Two fails.

         III. Claim Three

         Petitioner's third claim is that both the prosecutor and the trial court violated his rights under the Fifth and Fourteenth Amendments by telling the jury that Tracy's testimony did not need to be corroborated. Fischer asserted this claim in his notice of appeal to the NHSC, but his appellate counsel did not brief it. Thereafter, Fischer raised the issue in the pro se supplemental brief he attempted to submit to the NHSC.

         Respondent argues that it is entitled to judgment as a matter of law on Claim Three because: (1) Fischer waived it in the state courts; (2) the claim involves only a matter of state law; (3) the claim is unexhausted; and (4) the claim fails on the merits because there is no authority for the proposition that Tracy's testimony required corroboration and because Tracy's testimony was, in fact, corroborated. Again, the court proceeds directly to the merits, and reviews this claim de novo.

         Claim Three arises from the following statements by the prosecution during its closing argument:

Now the Judge is going to tell you that the law in New Hampshire says that the victim's testimony does not need to be corroborated....
....
Tracy came in here and she told you what the Defendant did to her. And as I indicated, the Judge is going to tell you that that, in and of itself, is enough evidence to convict the Defendant.
....
[I]f you find Tracy's testimony is credible - in other words, if you believe her testimony, then you can convict the Defendant without any additional evidence.

         Trial Tr. (Dec. 8, 2010) 134:11-13, 135:20-23, 137:16-19. Thereafter, the trial judge gave the following instruction:

The law does not require that the testimony of the alleged victim be corroborated. This means that if you find the alleged victim's testimony is credible - in other words, if you believe her testimony, then you may return a verdict of guilty without additional evidence.

         Trial Tr. (Dec. 8, 2010) 155:13-17.

         Petitioner's claim goes like this: (1) New Hampshire's sexual assault statute provides that "[t]he testimony of the victim shall not be required to be corroborated in prosecutions under this chapter, " RSA 632-A:6, I; (2) he was not charged with sexual assault under RSA ch. 632-A; and (3) because he was not tried on a charge of sexual assault, RSA 632-A:6, I, did not apply to his case. As the court has already noted, "the fact that [a jury] instruction was allegedly incorrect under state law is not a basis for habeas relief, " Estelle, 502 U.S. at 71-72 (citation omitted).[8] For that reason, and because Claim Three includes no assertion that the disputed jury instruction impermissibly shifted or lowered the prosecution's burden of proof, see Cupp, 414 U.S. at 147-48, Claim Three fails.

         IV. Claim Four

         Petitioner's fourth claim is that the trial court violated his constitutional rights, under the Fifth, Sixth, and Fourteenth Amendments, by admitting the testimony of witness Kristin Busch concerning statements that Tracy made to her under the "excited utterance" exception to New Hampshire's hearsay rule. Respondent argues that it is entitled to judgment as a matter of law on Claim Four because: (1) Fischer waived it in the state courts; (2) the claim involves only a matter of state law; (3) the claim is unexhausted; and (4) the claim fails on the merits. Again, the court proceeds directly to the merits, and reviews this claim de novo.

         At trial, the jury heard testimony from Busch. Among other things, Busch testified about a telephone conversation she had with Tracy at some point after the third incident giving rise to the charges against Fischer. The trial court admitted that testimony under the "excited utterance" exception to New Hampshire's hearsay rule. See N.H. R. Evid. 803(2). On appeal, the NHSC ruled that Busch's testimony was inadmissible, see Fischer I, 165 N.H. at 711, but held that the trial court's error in admitting it was harmless, "[b]ecause the alternative evidence of the defendant's guilt was overwhelming and because the contested evidence was inconsequential and cumulative, " id. at 712. The court elaborated:

The victim provided a graphic account of the assault in the living room. She also described in detail the assault in the kitchen. The officer who interviewed the victim at the Dover police station testified that she had a mark on the left side of her neck and a bruise on the back of her shoulder. Photographs of the victim's injuries and the dent in the wall were admitted as exhibits at trial. The nurse who examined the victim at the Wentworth-Douglass Hospital emergency room testified that the victim told her that she had been assaulted by her husband on the previous night, and that during the assault she was pushed to the floor, stepped on, and choked. The nurse noted bruising on the victim's back near her shoulder blade, tenderness in her neck, tenderness on the back of her head, and swelling, tenderness, and bruising on her finger - injuries that the nurse testified were consistent with the victim's description of the assaults.

         Id.

         Turning to the relevant legal principles, the "[v]iolation of a rule of evidence, without more, is not enough to warrant federal habeas review." Parkhurst v. Warden, NH State Prison, No. 09-cv-240-PB, 2011 WL 5330781, at *9 (D.N.H. Nov. 7, 2011) (citing Evans v. Verdini, 466 F.3d 141, 145 (1st Cir. 2006)). However:

An erroneous evidentiary ruling that results in a fundamentally unfair trial may constitute a due process violation and thus provide a basis for habeas relief. See Coningford v. Rhode Island, 640 F.3d 478, 484 (1st Cir. 2011). However, to give rise to habeas relief, "the state court's application of state law must be so arbitrary or capricious as to constitute an independent due process... violation.'" Id . (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). "To be a constitutional violation, a state evidentiary error must so infuse the trial with inflammatory prejudice that it renders a fair trial impossible." Petrillo v. O'Neill, 428 F.3d 41, 44 n.2 (1st Cir. 2005); see also Kater [v. Maloney], 459 F.3d [56, ] 64 [(1st Cir. 2006)] (in habeas context, relevant inquiry on appeal regarding evidentiary claim of error is "whether any error rendered the trial so fundamentally unfair that it violated the Due Process Clause").

Lyons v. Brady, 666 F.3d 51, 55-56 (1st Cir. 2012) (parallel citations omitted).

         In his memorandum of law, petitioner does not cite Lyons or any other authority describing the legal standard set forth in that decision. Rather, on state law grounds, he challenges the NHSC's determination that the admission of Busch's testimony was a harmless error. He does so by focusing on the NHSC's reference to testimony from the emergency-room nurse, and arguing that the nurse's testimony was also inadmissible hearsay. He concludes: "[T]he improper admission of both Busch's and [the nurse's] testimony affected the fundamental fairness of the trial below in violation of [his] right to a fair trial." Pet'r's Mem. of Law (Doc. No. 16) 27.

         Even if the nurse's testimony was admitted in violation of the New Hampshire Rules of Evidence - a claim that Fischer seems never to have presented to the NHSC, and a matter on which this court offers no opinion - the court cannot say that the admission of both Busch's testimony and the nurse's testimony made a fair trial impossible, which is the applicable legal standard. See Lyons, 666 F.3d at 56. That is, given all the other evidence against Fischer, any prejudice that may have resulted from the admission of the evidence at issue was minimal, at best. Accordingly, ...


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