United States District Court, D. New Hampshire
Tompson, pro se.
Elizabeth C. Woodcock, Esq.
pro se, Tompson petitions for a writ of habeas corpus,
pursuant to 28 U.S.C. § 2254, challenging her state
court convictions on charges of felony and misdemeanor
reckless conduct, resisting arrest, and disobeying an
officer, under N.H. Rev. Stat. Ann. (“RSA”)
§§ 631:3, I & II; § 642:2; and §
265:4. Before the court is respondent's motion for
summary judgment (Doc. No. 38). Tompson objects (Doc. No.
order affirming Tompson's convictions, see State v.
Tompson, No. 2013-0449 (N.H. June 9, 2015), the New
Hampshire Supreme Court (“NHSC”) described the
evidence adduced at Tompson's trial in the Rockingham
County Superior Court (“RCSC”) as follows. On
November 14, 2011, Deputy Sheriff Scott Peltier
(“Deputy Peltier”) attempted to serve civil
process on Tompson by approaching her, while she was in her
car, in the parking lot of her condominium complex. When
Tompson saw Deputy Peltier, she backed out of her parking
space, causing him to jump back, brushed his pant leg with
her car, did not heed his shouts to stop, drove through the
parking lot without slowing down for its speed bumps, and
drove out of the lot without stopping at the intersection at
the lot's exit. As she drove away, she reached a speed of
approximately 40-45 miles per hour (“mph”) in a
30 mph zone, turned right at an intersection at which the
right-turn signal was red, and failed to pull over when
Deputy Peltier activated his emergency lights. Later, Tompson
pulled into a parking lot. Deputy Peltier followed her into
the lot, exited his cruiser, and ordered her to turn off her
engine. Tompson then drove out of the lot, without stopping
before entering the roadway.
out on the road, Tompson pulled into a left-turn lane and
stopped at a red light. When Deputy Peltier pulled up behind
her, got out of his cruiser, and ordered her to shut off her
engine, however, Tompson drove through the red light and
returned to the parking lot of her condominium complex.
There, Deputy Peltier found Tompson in her car and drove up
behind her. When she shifted into reverse, Deputy Peltier had
to back up to avoid a collision. Tompson backed up at a high
rate of speed and then drove forward, back into her parking
remained in her car for a few minutes, but then got out and
moved quickly toward the door of her condominium unit. When
she saw Deputy Peltier begin to pursue her, she changed
directions. When Tompson ignored Deputy Peltier's order
to stop, he tackled her to the ground. When she was on the
ground, she rolled around, kicked, and screamed. The episode
concluded when Deputy Peltier, assisted by a Salem Police
Department officer, arrested Tompson.
upon the events described above, Tompson was initially
charged with Class B resisting arrest (a misdemeanor) and two
violation-level offenses (reckless driving and disobeying an
officer), see State v. Tompson, No.
473-2011-cr-03831 (N.H. Cir. Ct., 10th Cir., Dist.
Div.-Salem) (“Salem District Court”). Tompson
went to the Salem District Court on December 27, 2011 for her
arraignment. Upon discovering that the Rockingham County
Sheriff's Department was not represented in court on that
date, and had failed to file the complaints against her, she
unsuccessfully moved to have the charges against her
dismissed. See id., Dec. 27, 2011 Order (Doc. No. 1, at 54)
(rescheduling arraignment). On January 17, 2012, Tompson
filed a written motion to dismiss, which was denied on
February 7, 2012.
appeared for her trial in the Salem District Court, without
counsel, on February 14, 2012. Deputy Peltier was not there
to testify. The prosecutor offered Tompson a plea deal, and
told her that if she did not accept it, he would nol pros the
misdemeanors and seek one or more felony indictments. Tompson
rejected the plea deal, and the prosecutor nol prossed the
Class B misdemeanor and violation-level charges. On March 9,
2012, Tompson was indicted on three counts of felony reckless
conduct,  and she was charged with multiple Class A
misdemeanors, including disobeying an officer and one
resisting arrest charge. See State v. Tompson, No.
218-2012-cr-00258 (N.H. Super. Ct., Rockingham Cnty.)
(“Criminal Case”). Trial in the Criminal Case was
set for the August 13, 2012 trial period.
March 14, 2012, Attorney Joseph Malfitani of the New
Hampshire Public Defender (“Public Defender”) was
appointed to defend Tompson. In April 2012, Attorney
Malfitani drafted, but never filed, a motion to dismiss. In
it, he argued that the likely delay of Tompson's trial
until August/September 2012 was a presumptively prejudicial
delay that would violate her federal and state constitutional
rights to a speedy trial.
status conference on July 19, 2012, after Tompson raised
concerns over Attorney Malfitani's representation, the
RCSC allowed the Public Defender to withdraw as Tompson's
counsel. With respect to the consequences of the Public
Defender's withdrawal, the following exchange took place
between Tompson and the RCSC:
THE COURT: Okay, Okay. Well, I'll tell you what. I think
that in light of . . . the concerns you've outlined, I am
going to allow - the Public Defender's Office to withdraw
from this case, and . . . the Court will appoint
court-appointed counsel. But I want to make sure, though,
before I do that, you understand - because this case is set
for trial in August, right? August 13th a two-week session
[sic]. I think there's a very good chance that that's
going to result in a continuance of the trial because
it's . . . less than four weeks away. It takes some time
to get new counsel appointed, they obviously have to get the
discovery in the case, they have to get up to speed. And I
know you have asserted both in your pleading and Attorney
Malfitani when he was representing you earlier in the case .
. . informed me that you were asserting your right to a
So I want to make sure you understand that if I grant your
request to have the public defender withdraw from the case,
the likelihood is that the case is going to be continued in
order to allow new counsel to get up to speed. Do you
THE DEFENDANT: I understand, Your Honor.
July 19, 2012 Status Conf. Tr. 5:22-6:19, Criminal Case (Doc.
23, 2012, Attorney Patrick Fleming was appointed to represent
Tompson. She asked him to file a motion to dismiss, on
grounds that her speedy-trial rights had been violated. He
did not do so.
November 2012, Attorney Fleming moved to continue
Tompson's trial, and filed a signed waiver of her
speedy-trial rights. The RCSC granted the motion, and Tompson
was tried in March 2013, before Judge McHugh. Shortly before
her trial, Tompson was offered a deal that would have allowed
her to avoid trial by pleading guilty to several misdemeanor
charges. Against the advice of counsel, she rejected the
trial, Tompson was convicted of misdemeanor counts of
resisting arrest and disobeying an officer; a lesser-included
charge of misdemeanor reckless conduct (relating to when she
brushed the officer's pant leg with her car); and one
count of felony reckless conduct (relating to when she backed
up and almost hit the officer's cruiser). Tompson was
acquitted of the third count of reckless conduct.
date scheduled for Tompson's sentencing, Attorney Fleming
moved to withdraw. The court granted the motion. At her
subsequent sentencing hearing, Tompson was represented by
Attorney Neal Reardon. The State recommended that the court
impose the following sentences:
• Felony reckless conduct: a 90-day term of imprisonment
in the House of Corrections (“HOC”), stand
committed; probation for a year after her release from the
HOC; a fine of $500 (plus a penalty assessment); a suspension
of Tompson's drivers' license for 60 days after her
release from the HOC; a letter of apology to Deputy Peltier;
and a mental-health examination.
• Misdemeanor reckless conduct: a sentence identical to
the sentence for felony reckless conduct, with the exception
that the fine be suspended for two years upon Tompson's
• Disobeying an officer: a sentence of 90 days in the
HOC, consecutive to her sentence(s) for reckless conduct, and
suspended for two years from the date of Tompson's
release from her reckless-conduct sentence(s); a fine of $500
(plus the penalty assessment); a 60-day license suspension to
run concurrently with the suspension imposed for reckless
conduct; and a letter of apology to Deputy Peltier.
• Resisting arrest: a sentence identical to the sentence
for disobeying an officer, with the exception that the fine
be suspended for two years upon Tompson's good behavior.
Reardon countered with a recommendation that Tompson receive
no jail time, based upon her history of being a good citizen,
the minimal severity of her offenses, and several different
medical conditions. In place of jail time, he suggested home
confinement with an electronic monitor. In addition, he
argued for a low fine in light of her financial situation,
and he asserted Tompson's strong objection to having a
mental-health evaluation. Attorney Fleming also introduced at
sentencing photographs of Tompson, taken shortly after her
arrest, that documented injuries she had received during the
course of her arrest.
each of her two reckless-conduct convictions, the court
sentenced Tompson to a 60-day term of imprisonment, to be
served concurrently. In all other respects, Judge McHugh
imposed a sentence in line with the prosecutor's
filed a notice of appeal pro se. Attorney Reardon filed a
notice of appeal on her behalf several days later, listing
fewer issues. Tompson then filed a 159-page pro se motion for
a new trial in the RCSC, arguing that she had received
ineffective assistance of counsel. The NHSC stayed her direct
appeal while that motion was pending. See State v.
Tompson, No. 2013-0449 (N.H. Oct. 22, 2014) (order
initial motion for a new trial, Tompson identified multiple
instances of purportedly deficient advocacy, including the
fact that neither Attorney Malfitani nor Attorney Fleming
filed a motion to dismiss on grounds that her speedy-trial
rights had been violated. Judge McHugh, who had been the
trial judge, denied Tompson's motion in a two-page order.
See May 20, 2014 Order, Criminal Case, (“May 2014 RCSC
Order”) (Doc. No. 22-6, at 21-22). After describing
Tompson's motion as a line-byline annotation of her trial
transcript, in which Tompson opined why, in her view, the
statements made by her attorneys and their questions were
deficient, Judge McHugh explained his decision, as follows:
[A]s cases are being tried we do not have the luxury of
stopping after each statement or question asked to determine
whether or not the statement or question perhaps should have
been made using different words. When reviewing a claim for
ineffective assistance of counsel, trial courts look at the
totality of the proceeding to determine if any prejudice
befell a defendant. In this case the Court has no difficulty
in concluding, and in fact the transcript will so support,
that each of the defendant's three appointed attorneys in
her case worked diligently on her behalf. Accordingly, the
defendant's Motion for New Trial Due to Ineffective
Assistance of Counsel is denied.
Id. at 21-22.
appealed, and the NHSC declined her discretionary appeal.
See State v. Tompson, No. 2014-0404 (N.H. Aug. 29,
2014). The NHSC then resumed its consideration of
Tompson's direct appeal and affirmed her conviction.
See State v. Tompson, No. 2013-0449 (N.H. June 9,
2015) (“Direct Appeal”) (Doc. No. 1, at 20-24).
Tompson filed her § 2254 petition in this court. In her
petition here, Tompson has asserted that her convictions were
unconstitutional because: (1) her right to a speedy trial was
violated (Claim 1); (2) Deputy Peltier used excessive force
when he arrested her (Claim 5); (3) Attorney Malfitani
provided her with ineffective assistance in two different
ways (Claim 2); (4) Attorney Fleming provided her with
ineffective assistance in seven different ways (Claim 3); and
(5) Attorney Reardon provided her with ineffective assistance
in two different ways (Claim 4).
moved to dismiss Tompson's § 2254 petition, on
grounds that she had not exhausted her speedy-trial claim by
fully litigating it in the state courts. This court denied
that motion to dismiss, see May 10, 2016 Order (Doc. No. 28),
and then stayed this case so that Tompson could exhaust her
state remedies on her speedy-trial claims in the state
courts. See May 31, 2016 Order (Doc. No. 30). Tompson
exhausted her speedy trial claims by filing a motion for
post-conviction relief in the Criminal Case. The RCSC denied
that motion on procedural grounds, concluding that the speedy
trial claim had been procedurally defaulted. See State v.
Tompson, No. 218-2012-cr-00258 (N.H. Super. Ct.,
Rockingham Cnty., Oct. 18, 2016) (“October 2016 RCSC
Order") (Doc. No. 32-2). Tompson appealed that decision.
The NHSC declined her notice of appeal. See State v.
Tompson, No. 2016-0693 (N.H. Jan. 27, 2017) (Doc. No.
33, at 2). Thereafter, the stay in this § 2254 petition
was lifted. See Mar. 10, 2017 Order (Doc. No. 34). Respondent
now moves for summary judgment (Doc. No. 38). Tompson objects
(Doc. No. 41).
federal court may grant habeas corpus relief “only on
the ground that [a person] is in custody in violation of the
Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a); see also
Cullen v. Pinholster,563 U.S. 170, 131 S.Ct. 1388, 1398
(2011). Where the state courts have already addressed the
merits of the petitioner's federal claims, the standard
that this court ...