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Tompson v. State

United States District Court, D. New Hampshire

March 30, 2018

Judith Tompson
v.
State of New Hampshire

          Judith Tompson, pro se.

          Elizabeth C. Woodcock, Esq.

          ORDER

         Appearing 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. 41).

         Background

         In its 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.

         Back 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 space.

         Tompson 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.

         Based 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.

         Tompson 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, [1] 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.

         On 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.

         At a 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 speedy trial.
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 understand that?
THE DEFENDANT: I understand, Your Honor.

July 19, 2012 Status Conf. Tr. 5:22-6:19, Criminal Case (Doc. No. 36).

         On July 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.

         In 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 deal.

         At 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.

         On the 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 good behavior.
• 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.

         Attorney 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.

         For 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 recommendations.

         Tompson 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 lifting stay).

         In that 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.

         Tompson 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).

         Next, 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).

         Respondent 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).

         Standard

         A 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.”[2] 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 ...


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