United States District Court, D. New Hampshire
Christopher Gay, pro se.
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge.
the court is pro se petitioner Christopher Gay's petition
for writ of habeas corpus (Doc. No. 1) seeking relief under
28 U.S.C. § 2254. The petition is here for preliminary
review pursuant to Rule 4 of the Rules Governing Section 2254
Cases ("§ 2254 Rules") and LR 4.3(d)(4).
before the court is Gay's motion (Doc. No. 4) seeking
leave to withdraw the § 2254 petition without prejudice,
so that he can litigate his claims in state court before
refiling the petition in this court. That motion (Doc. No. 4)
is also addressed in this Report and Recommendation.
Stewart was stabbed and robbed on January 21, 2012, in an
apartment near the Farmington Police Department
("FPD"). First responders answering a 911 call
found Stewart outside his apartment, bleeding from stab
wounds, from which he later died.
bloodhound led police officers down the street to Christopher
Gay's apartment building. Police officers, having
determined Gay was a suspect, interviewed him in his
driveway. The next day, while preparing to search Gay's
residence pursuant to a warrant, officers stopped a car in
which Gay was a passenger, and took Gay to the FPD where they
questioned him. Police officers obtained additional warrants,
authorizing an examination of Gay's body and a search of
the car in which he had been a passenger. In addition, at the
FPD, police officers took and searched the clothing Gay had
been wearing, without a warrant. The searches of the car,
Gay's body, and the residence recovered inculpatory
evidence introduced at Gay's trial.
a co-defendant, Cory Bennett, were indicted in 2012 on
multiple charges relating to Stewart's death. See,
e.g., State v. Gay, No. 219-2012-cr-53 (N.H.
Super. Ct., Strafford Cty.) ("Superior Court
Case"). Bennett pleaded guilty and agreed to
testify against Gay. Gay maintained his innocence and went to
trial. The Superior Court issued a number of pretrial
evidentiary rulings on motions in limine and on motions to
a trial in October 2014, a jury found Gay guilty of both
conspiracy to commit robbery and second degree murder. In
February 2015, the Superior Court sentenced Gay to 40 years
to life on the second degree murder charge, with the first
ten years of the minimum sentence suspended, and to a
concurrent sentence of 71/2 to 15 years
on the conspiracy to commit robbery charge. The New Hampshire
Supreme Court ("NHSC") affirmed Gay's
conviction and sentence in July 2016. See State v.
Gay, 169 N.H. 232, 145 A.3d 1066 (2016). Gay, who is
incarcerated at the Northern New Hampshire Correctional
Facility, did not file any other post-conviction proceedings
in the state courts before filing his § 2254 petition in
this court in July 2017.
liberally, the § 2254 petition (Doc. No. 1) asserts the
following federal claims for relief:
1. Gay's conviction was obtained in violation of his
Fifth Amendment right against self-incrimination, in that, on
January 21, 2012, police officers effectively arrested and
interrogated Gay in his driveway, and the trial court did not
exclude statements derived from that encounter, although Gay
had not been given a Miranda warning.
2. Gay's conviction was obtained in violation of his
Fourteenth Amendment right to due process, in that:
a. The trial judge did not exclude expert testimony of a
state investigator, based on her "perceptual
judgment" regarding shoeprints, which had not been
corroborated by an independent examiner, resulting in a