United States District Court, D. New Hampshire
D. Wiberg, Esq. Elizabeth C. Woodcock, Esq.
DICLERICO, JR. UNITED STATES DISTRICT JUDGE
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.
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.
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).
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. §
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).
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
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
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.
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
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.
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
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.
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
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.
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
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.
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.
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.
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. As interpreted by the Warden and