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Gay v. Warden, Northern New Hampshire Correctional Facility

United States District Court, D. New Hampshire

October 31, 2017

Christopher Gay
v.
Warden, Northern New Hampshire Correctional Facility[1]

          Christopher Gay, pro se.

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone United States Magistrate Judge.

         Before 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).

         Also 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.

         Background[2]

         Ryan 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.

         A 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.

         Gay and 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 suppress.[3]

         Following 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.

         Claims

         Construed 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 ...

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