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Kargbo v. Warden, New Hampshire State Prison

United States District Court, D. New Hampshire

February 21, 2018

Abu B. Kargbo
Warden, New Hampshire State Prison

          Abu B. Kargbo, pro se

          Elizabeth C. Woodcock, Esq.


          Andrea K. Johnstone, United States Magistrate Judge.

         After a jury trial in the Hillsborough County Superior Court, Abu Kargbo was convicted on one count of aggravated felonious sexual assault, in violation of N.H. Rev. Stat. Ann. (“RSA”) § 632-A:1, I(b) (2007). He is currently serving a sentence in the New Hampshire State Prison. Appearing pro se, Kargbo petitions for a writ of habeas corpus. See 28 U.S.C. § 2254. Before this magistrate judge for a report and recommendation is respondent's motion for summary judgment (Doc. No. 67). Petitioner has not filed a formal objection to respondent's motion for summary judgment, but he has filed several other pleadings, including three motions seeking his release (Doc. Nos. 76, 77, 84). For the reasons that follow, respondent's motion for summary judgment (Doc. No. 67) should be granted, in part, and petitioner's motions (Doc. Nos. 76, 77, 84) should be denied.


         In its order affirming Kargbo's conviction, the New Hampshire Supreme Court (“NHSC”) described the evidence adduced at trial. Evidence showed that on August 7, 2009, the victim went to a restaurant and then to the Amber Room, a nightclub in Nashua. Over the course of the evening, she drank three beers and two mixed drinks. Subsequently, she remembered dancing at the Amber Room at 12:30 a.m., but the next thing she remembered was waking up in the hospital.

         As for Kargbo's connection with the victim, evidence showed that at about 3:00 a.m., Officer Andrew Roy of the Nashua Police Department (“NPD”) saw Kargbo carrying the victim through a parking lot. When Officer Roy encountered Kargbo and the victim, the victim's pants were unbuttoned and only partially zipped.

         Officer Roy had the victim transported to Southern New Hampshire Medical Center. When she arrived there, she was nearly unconscious. Emergency room personnel found dirt and plant matter in the victim's genital area, and expert testimony established that semen from her vaginal samples matched Kargbo's DNA.

         On August 8, 2009, i.e., the morning after Officer Roy's interaction with Kargbo and the victim, Kargbo was interviewed by Detective Keith Inzenga of the NPD. At the start of the interview, Det. Inzenga told Kargbo that he was “not under arrest or anything like that, ” Admin. App'x at 79 (Doc. No. 67), and Kargbo confirmed that he had “voluntarily responded [to the NPD] on [his] own free will, ” Id. According to the transcript of the interview, as reported on an NPD Voluntary Statement Form, the interview started at 7:05 a.m. and finished at 9:02 a.m.[1] On several occasions, Det. Inzenga left Kargbo by himself in the interview room, and at one point, he told Kargbo that after the interview was over, he would drive him to wherever he was staying. During the interview, Kargbo told Det. Inzenga that he had engaged in sexual intercourse with the victim.

         On March 11, 2010, Justice Ryan of the Nashua District Court signed a warrant for Kargbo's arrest. Later that month, Kargbo was arrested in Florida. See Sentencing Tr. (Oct. 22, 2012).

         Based upon the evidence presented at trial, Kargbo was found guilty of the variant of aggravated felonious sexual assault that makes it unlawful to “engage[] in sexual penetration with another person . . . [w]hen the victim is physically helpless to resist.” After he was convicted, Kargbo filed a notice of mandatory appeal in which he listed four issues: (1) Did the trial court err in permitting State's witness Pamela Keefe, a SANE nurse, to testify at trial?; (2) Did the trial court err in finding Mr. Kargbo competent to stand trial?; (3) Did the trial court err in finding Mr. Kargbo competent - post-trial - for sentencing?; and (4) Did the trial court err in denying the defendant's motion to dismiss for insufficient evidence?

         After Kargbo filed his notice of appeal, through counsel, but before he filed his brief in the NHSC, he filed two pro se motions in the trial court. Judge Nicolosi treated those motions as a petition for a writ of habeas corpus, construed the petition as asserting a claim of ineffective assistance of counsel, and identified the following purported errors by trial counsel: (1) failing to file a motion to suppress the statement that Kargbo gave to Det. Inzenga; (2) failing to show Kargbo the entire video recording of his interview with Det. Inzenga prior to trial; (3) failing to cross-examine Det. Inzenga; (4) failing to move for a directed verdict; (5) failing to object to the jury instructions; and (6) instructing Kargbo not to testify.[2] In addition, according to Judge Nicolosi, during the hearing on his motion, Kargbo

raised two additional arguments that, 1. the jury selection resulted in unfit jurors being among the twelve who rendered the verdict; and 2. the testimony of the SANE nurse [i.e., Pamela Keefe] was improperly admitted because she was unqualified.

Admin. App'x at 34 (Doc. No. 68). In an order dated November 27, 2013, Judge Nicolosi denied Kargbo's motion in large part, but deferred ruling on the sixth issue until after she had conducted a hearing.

         After Judge Nicolosi issued her November 27 order, Kargbo a pro se motion to dismiss the case against him, raising arguments about the admission of testimony from nurse Keefe, racial bias, his competence to stand trial, sufficiency of the evidence, and the racial composition of his jury. With regard to the racial composition of his jury, Kargbo made no factual allegations, but cited Batson v. Kentucky for the proposition that “the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race, ” 476 U.S. 79, 89 (1986). In an order dated January 23, 2014, Judge Nicolosi denied Kargbo relief on the issue she had previously deferred ruling on and denied his new motion to dismiss, explaining that the motion “raise[d] the same issues previously addressed by the court and, to the extent it can be said that any new issues are raised, they are without foundation in the record.” Admin. App'x at 57 (Doc. No. 68). There is no indication in the record before this court that Kargbo ever appealed Judge Nicolosi's orders of November 27, 2013, and January 23, 2014.

         Next, Kargbo filed his appellate brief with the NHSC, again through counsel. In it, he raised a single issue: whether the State had introduced sufficient evidence to support his conviction. The NHSC affirmed Kargbo's conviction in an order dated December 9, 2014. See State v. Kargbo, No. 2012-0784 (N.H. Dec. 9, 2014).

         Kargbo filed his petition for a writ of habeas corpus in this court in August 2015. In it, he asserts 12 claims. In January 2016, Kargbo was granted a stay of this proceeding so that he could go back to the state courts to pursue any claims in his petition that had not yet been adjudicated there.

         About two weeks later, Kargbo filed two pleadings with the NHSC each captioned “Petitioner['s] Motion to Exhaust His State Remedies” and a third pleading captioned “Petitioner['s] Motion to Proceeding in this Honorable Court.” See Addendum at 1, 5, 10 (Doc. No. 26). In one of the motions to exhaust, petitioner argued that the statement he gave to Det. Inzenga was admitted at trial in violation of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). In the second motion to exhaust, petitioner raised a claim that he had received ineffective assistance of counsel. And in his third motion, he appears to have elaborated on his ineffective-assistance claim and also to have claimed constitutional violations based upon the racial composition of his jury. Specifically, he referred to both his equal-protection rights under Batson and his Sixth Amendment “right to be tried by an impartial jury drawn from sources reflecting a fair cross section of the community, ” Berghuis v. Smith, 559 U.S. 314, 319 (2010) (citing Taylor v. Louisiana, 419 U.S. 522 (1975)). While petitioner's three motions were pending before the NHSC, he filed what appear to be three largely similar motions in the superior court.[3]

         In an order dated June 24, 2016, the NHSC construed Kargbo's three motions as a petition for original jurisdiction, and denied it. Then, in an order dated September 8, 2016, Judge Temple of the superior court denied all three of the motions before him on grounds of res judicata, and further ruled that even if not barred by res judicata, those motions had no basis in law or fact. In January 2017, petitioner filed a notice of appeal with the NHSC, and in an order dated March 8, 2017, the NHSC declined it.


         A federal court may grant habeas corpus relief “only on the ground that [a petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Procedurally, “[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). However, “[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2).

         Substantively, when a prisoner brings a claim in federal court that “was adjudicated on the merits in State court proceedings, ” 28 U.S.C. § 2254(d),

[f]ederal habeas relief may not be granted . . . unless it is shown that the earlier state court's decision “was contrary to” federal law then clearly established in the holdings of this Court; or that it “involved an unreasonable application of” such law; or that it “was based on an unreasonable determination of the facts” in light of the record before the state court.

Harrington v. Richter, 562 U.S. 86, 100 (2011) (citations omitted). Notwithstanding the deferential standard of review that normally applies to petitions for habeas corpus relief, if a claim “has not been adjudicated on the merits in state court, ” it is subject to de novo review. See Jaynes v. Mitchell, 824 F.3d 187, 192 (1st Cir.) (citation omitted), cert. denied, 137 S.Ct. 312 (2016).


         I. Respondent's Motion for Summary ...

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