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Reid v. Warden, Northern New Hampshire Correctional Facility

United States District Court, D. New Hampshire

February 22, 2017

George Reid
v.
Warden, Northern New Hampshire Correctional Facility Opinion No. 2017 DNH 033

          Sven D. Wiberg, Esq. Elizabeth C. Woodcock, Esq.

          ORDER

          JOSEPH DICLERICO, JR. UNITED STATES DISTRICT JUDGE

         George Reid seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in state court on charges of aggravated felonious sexual assault and felonious sexual assault. The Warden moves for summary judgment. Reid objects. Certain procedural issues raised in Reid's objection were addressed previously in the court's order issued on January 30, 2017, and those matters will not be addressed again in this order.

         Standard of Review

         Summary judgment is used in habeas corpus proceedings under § 2254 when the issues raised may be decided on the available record. See Fed.R.Civ.P. 81(a)(4); Fournier v. Warden, 2010 WL 4455917, at *1 (D.N.H. Nov. 3, 2010). Based on the court's review of the record submitted, there is no need to expand the record or to hold an evidentiary hearing. See Rules 7 and 8 of the Rules Governing Section 2254 Cases. Reid, who is represented by counsel, has not moved to expand the record or requested an evidentiary hearing. As explained in the court's prior order, although Reid raised an issue about discovery, he did not seek leave of court to conduct discovery or provide good cause to support a request for discovery. See Rule 6 of the Rules Governing Section 2254 Cases. Therefore, Reid's claims may be decided based on the available record.

         Motions for summary judgment may be considered under Federal Rule of Civil Procedure 56, however, only to the extent that the application of Rule 56 is not inconsistent with § 2254 and the Rules Governing Section 2254 Cases. Id.; Rule 12 of the Rules Governing Section 2254 Cases; Perri v. Gerry, 2014 WL 2218679, at *1 (D.N.H. May 29, 2014).

         Relief under § 2254 is available only for claims for which the petitioner has exhausted the remedies available in state court. § 2254(b). On claims that were adjudicated on the merits by the state court, the habeas court cannot grant the writ unless the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court” or “was based on an unreasonable determination of the facts.” § 2254(d). A claim was adjudicated on the merits if “there is a decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground.” Moore v. Dickhaut, 842 F.3d 97, 100 (1st Cir. 2016) (internal quotation marks omitted). Factual determinations made by the state court are presumed to be correct. § 2254(e).

         Background

         Reid was convicted following a jury trial on two counts of aggravated felonious sexual assault and two counts of felonious sexual assault. He was sentenced in March of 2009 to twenty to sixty years in prison. Reid appealed his conviction, and the New Hampshire Supreme Court issued its decision affirming the conviction on March 16, 2011. State v. Reid, 161 N.H. 569 (2011).

         The events that led to the charges against Reid began in 2003 when Reid was living with Lynn Benway. Benway's granddaughter, E.B., visited them several times a week and swam in their swimming pool and hot tub. Reid on at least one occasion was in the hot tub with E.B. while he was naked. He pulled down E.B.'s bathing suit “and placed his penis between her buttocks.” Reid, 161 N.H. at 571. On at least one other occasion, while E.B. slept in the bed with her grandmother and Reid, Reid “pulled down E.B.'s pajama pants and put his penis between her buttocks.” Id.

         When E.B.'s mother heard from someone else that Benway and Reid walked around the house nude in E.B.'s presence, she asked E.B. if she had seen them do that. E.B. said that she had seen them nude and then told her mother about the abuse. E.B. told investigators that Reid “penetrated her vagina with his penis and his finger.” Id. E.B. was interviewed by an investigator, Nancy Harris-Burovac, on May 6, 2004, and the interview was videotaped. During the interview E.B. described the incidents involving Reid.

         Reid was first tried on sexual assault charges in 2008. Before trial, Reid moved to dismiss the charges because E.B. had no recollection of the incidents. Reid argued that the videotaped interview was inadmissible hearsay and a violation of the Confrontation Clause. The court ruled that the videotape could be played at trial if E.B. testified. That proceeding ended in a mistrial for other reasons.

         Reid was retried on the sexual assault charges in January of 2009. One of the prospective jurors was Carla Smith who stated during jury selection that she could be biased because she was a teacher and worked with children. After further conversation with the judge and counsel, Smith agreed that although she had strong feelings about children she could fairly assess the evidence. Smith was allowed to serve on the jury.

         During the trial, the prosecutor again attempted to introduce the videotaped interview with E.B., contending that it was a recorded recollection. E.B. testified that she remembered the interview, that her memory was better at that time, that she did not remember some of the incidents discussed in the interview and specifically did not remember vaginal penetration. The trial judge allowed the prosecution to play an edited version of the interview videotape that related to the vaginal penetration incidents.

         On appeal, Reid challenged the ruling to allow the videotaped interview. He argued that the videotape was not admissible as a recorded recollection under the exception to the hearsay rule. The New Hampshire Supreme Court ruled that the trial court properly exercised its discretion in allowing the videotape. The supreme court rejected Reid's argument that the videotape violated Sixth Amendment's Confrontation Clause.

         Reid also argued on appeal that the trial court should have granted a mistrial based on the prosecutor's introduction of evidence that an investigator did not obtain a statement from Reid. The investigator testified that he attempted to interview Reid. Reid argued that the testimony was improper comment on his silence in violation of his Fifth Amendment right to remain silent. The trial court denied the motion for a mistrial but offered to give a cautionary jury instruction, which Reid's attorney declined.

         On appeal, the court concluded that the reference to an attempt to interview Reid was “not a sufficiently clear reference to the defendant's invocation of his right to remain silent so as to substantially prejudice him to the level requiring a mistrial.” Reid, 161 N.H. at 305. In addition, the court noted that the trial court offered a cautionary instruction, which the defense declined. The court also held that the questioning which resulted in comment on the attempt to interview Reid was not prosecutorial misconduct.

         On March 12, 2012, Reid, who was represented by new counsel, moved to set aside the verdict and for a new trial based on claims of ineffective assistance of counsel. Specifically, Reid charged that his trial attorney was ineffective in failing to have testimony from an expert witness to counter the prosecution's witness who testified about the evidence of sexual abuse of E.B., in failing to have Reid's physicians testify about his erectile dysfunction, in failing to show that E.B. had recanted her charges against Reid, and in failing to inform Reid about the prosecution's offer of a guilty plea. An evidentiary hearing was held on the motion in September of 2012, and the court denied the motion in November of 2012.

         On appeal, Reid challenged only the ruling on the issue of ineffective assistance of counsel in failing to investigate and present evidence of Reid's erectile dysfunction. The New Hampshire Supreme Court declined to consider the appeal. The court denied Reid's motion to reconsider.

         Reid filed the petition for relief in this court on February 19, 2013. In July of 2013, Reid moved to stay the case to allow him to pursue additional claims in state court. The court administratively closed the case, with the provision that it could be reopened by an appropriate motion.

         Reid then returned to state court and filed a habeas petition in which he claimed that his right to due process was violated because of juror bias and misconduct and that counsel was ineffective for failing to challenge the juror. His claims were based on statements by the juror, Carla Smith.

         The state court ruled that Reid's claims of due process violations due to juror bias and misconduct were procedurally defaulted. The state court also ruled, as to all three claims, that the evidence showed that the juror was not biased and did not engage in misconduct. The court denied Reid's motion for reconsideration, and the New Hampshire Supreme Court declined his appeal.

         The habeas action in this court was reopened on March 16, 2016. Reid filed an amended petition on April 20, 2016. As explained in the prior order, Reid did not clearly state all of the claims he intended to bring in his amended petition.[1] As interpreted by the Warden and ...


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