United States District Court, D. New Hampshire
Graham, pro se
REPORT AND RECOMMENDATION
K. JOHNSTONE, UNITED STATES MAGISTRATE JUDGE
the court is Melvin Graham's complaint (Doc. No. 1), and
factual allegations in Graham's discovery motion (Doc.
No. 3), which has been construed as an addendum to the
complaint.The matter is before the court for
preliminary review under 28 U.S.C. § 1915A, 28 U.S.C.
§ 1915(e)(2), and LR 4.3(d)(1).
magistrate judge in this court conducts a preliminary review
of prisoner complaints filed in forma pauperis. See
LR 4.3(d)(1). The magistrate judge may recommend to the
district judge that claims be dismissed if, among other
things, the court lacks jurisdiction, a defendant is immune
from the relief sought, or the complaint fails to state a
claim upon which relief may be granted. See 28
U.S.C. §§ 1915(e) (2), l9l5A(b)(1); LR
4.3(d)(1)(A). In conducting its preliminary review, the court
construes pro se complaints liberally. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam). The
complaint must contain "sufficient factual matter,
accepted as true, to 'state a claim to relief.'"
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
his conviction in 1996 on multiple counts of felonious and
aggravated felonious sexual assault, Graham has a No. of
state and federal cases challenging that conviction. The
court in Graham v. Warden, No. 12-CV-271-JD
(D.N.H.), summarized the proceedings that had occurred prior
to December 2012:
Graham was convicted in 1996 on three counts of aggravated
felonious sexual assault and one count of felonious sexual
assault on his niece, who was eight years old at the time of
the assaults. State v. Graham, 142 N.H. 357, 359
(1997). On appeal, the New Hampshire Supreme Court
["NHSC"] rejected Graham's claims that the
evidence was insufficient to convict and that the trial court
improperly excluded a defense witness's testimony, but
remanded the case for the trial court to determine whether
Graham's motion for in camera review of privileged
records should have been granted, and if so, whether the
records contained evidence that would require a new trial.
[See Graham, 142 N.H. at 363.] The trial court concluded that
the privileged records did not require a new trial, and the
[NHSC] affirmed that decision on October 23, 1998.
Graham moved for a new trial based on claims of ineffective
assistance of trial counsel, which was denied. He then filed
multiple petitions for a writ of habeas corpus in state
court, which were denied. His appeals to the [NHSC] were
On January 8, 2001, Graham filed a petition for a writ of
habeas corpus in [the District of New Hampshire], which was
dismissed because he had not shown that he had exhausted
state remedies. [See Graham v. Coplan, No.
01-cv-010-SM (D.N.H. Aug. 22, 2001) (ECF No. 11).] After
initiating other state court actions without success, Graham
filed a second habeas corpus action in [the District of New
Hampshire] on April 7, 2004, asserting ineffective assistance
of counsel. The case was dismissed as barred by the statute
of limitations. [See Graham v. Warden, N.N.H. Corr.
Facility, No. 04-cv-126-JD (D.N.H. Sept. 30, 2004) (ECF
Graham v. Warden, N.H. State Prison, No.
12-CV-271-JD, 2012 WL 6115700, at *2, 2012 U.S. Dist. LEXIS
174486, at *l-*2 (D.N.H. Dec. 10, 2012). Graham's third
petition for federal habeas relief was dismissed in December
2012. See Id. (dismissing as untimely Graham's
petition for federal habeas relief).
Graham filed an action raising claims that are essentially
the same as those here that name the NHSC as a defendant. In
that action and in this case, Graham has claimed that his
convictions were invalid, and that the NHSC, by failing to
reverse based on errors and abuses in his case, had deprived
him of due process. Approving a Report and Recommendation
("R&R") and applying the Rooker-Feldman
doctrine, the court in that prior case dismissed the action
against the NHSC and the NHSC justices for lack of subject
matter jurisdiction. See Graham v. N.H. Supreme Ct.,
No. 08-cv-315-PB, 2009 U.S. Dist. LEXIS 14908, 2009 WL
485141, at *1 (D.N.H. Feb. 24, 2009), approving R&R, No.
08-cv-315-PB, 2009 WL 485141, at *2 (D.N.H. Jan. 30, 2009)
(citing, inter alia, D.C. Ct. App. v. Feldman, 460
U.S. 462, 476 (1983); Rooker v. Fid. Trust Co., 263
U.S. 413, 416 (1923)).
case presently before this court, Graham again names the NHSC
as a defendant, along with the State of New Hampshire and
attorneys from the N.H. Public Defender's Office
("NHPD") who represented him at trial and/or on
appeal. He cites 42 U.S.C. § 1983 and § 1985, in
contending that his convictions are invalid, and that they
resulted from a conspiracy between the NHPD, the prosecutor
in his criminal case, and the state courts involved in his
trial, appellate, and post-conviction proceedings. He further
claims that the NHPD engaged in legal malpractice, and that
the state courts tortiously interfered with his contractual
relationship with the NHPD. He claims that the NHSC has a
duty under state law, N.H. Rev. Stat. Ann. ("RSA")
§ 490:4, to correct errors and abuses in lower state
court proceedings, and that the NHSC violated his rights by
declining to accept appeals in Graham's post-conviction
proceedings. Graham argues that he presented an innocence
claim in the state courts, which, in his view, went
"unaddressed, " as the Superior Court denied,
without a hearing, the postconviction motion raising that
claim, and the NHSC declined to review the ...