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Estabrook v. State

United States District Court, D. New Hampshire

May 7, 2018

Thomas Estabrook
v.
State of New Hampshire

          Thomas Estabrook, pro se

          REPORT AND RECOMMENDATION

          ANDREA JOHNSTONE UNITED STATES MAGISTRATE JUDGE

         Before the court is plaintiff Thomas Estabrook's complaint (Doc. No. 1), naming the State of New Hampshire and/or Merrimack County Superior Court as the defendant(s), and seeking an order: (1) vacating a 2016 ruling of the Merrimack County Superior Court in his habeas corpus proceedings before that court; (2) vacating Estabrook's 2009 state criminal conviction, and/or allowing him to withdraw his guilty pleas to felony and misdemeanor sexual assault charges; and (3) granting him a new trial in that criminal case. The matter is here for preliminary review under LR 4.3(d)(1) and 28 U.S.C. § 1915(e)(2).

         Preliminary Review Standard

         The court may dismiss claims asserted in a complaint filed in forma pauperis, if the court lacks subject matter jurisdiction, a defendant is immune from the relief sought, the complaint fails to state a claim, or the action is frivolous or malicious. See 28 U.S.C. § 1915(e)(2); LR 4.3(d)(1). In determining whether a pro se complaint states a claim, the court must construe the complaint liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). To survive preliminary review, the complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief.'” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). The court treats as true all well-pleaded factual allegations, and construes reasonable inferences in plaintiff's favor. See Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011).

         Background

         On January 14, 2009, Estabrook pleaded guilty to one count of aggravated felonious sexual assault and a misdemeanor charge of sexual assault, upon the advice of his retained trial counsel. The judge sentenced Estabrook to three to eight years in prison, stand committed, on the felony charge, and one year in jail on the misdemeanor charge, to be served concurrently with the felony prison term. Estabrook asserts that his trial counsel billed him $25, 000 for services provided in connection with that case.

         Estabrook litigated a series of state and federal post-conviction proceedings while incarcerated, all of which were unsuccessful, including a state habeas petition, a state motion for sentence reduction, a state motion to withdraw his guilty plea, and a federal petition for a writ of habeas corpus under 28 U.S.C. § 2254. See, e.g., Estabrook v. Zenk, No. 217-2016-cv-392 (N.H. Super. Ct., Rockingham Cnty., Nov. 10, 2016) (Doc. No. 1-1, at 9) (denial of state habeas petition); State v. Estabrook, No. 211-2008-cr-00253, No. 211-2008-cr-00366 (“State Criminal Case”) (N.H. Super. Ct., Belknap Cnty. Apr. 4, 2016) (order denying motion for sentence reduction); State Criminal Case (N.H. Super. Ct., Belknap Cnty. July 16, 2010) (denial of motion to withdraw plea); see also Estabrook v. N.H. State Prison Warden, No. 1:11-cv-00096-JL (“§ 2254 Petition”) (D.N.H. Nov. 7, 2011) (ECF No. 6) (dismissal of § 2254 Petition).

         Estabrook served his full eight year sentence, and was released in 2017. Estabrook asserts that he is presently subject to a post-conviction sex-offender registry requirement, and has been on probation while in Connecticut, where he presently lives. It is not clear to this court whether that probation is part of a sentence for the conviction underlying this action, or another conviction not at issue in this case.

         Estabrook claims that his state conviction and sentence violated his Sixth Amendment right to the effective assistance of trial counsel, and his Fourteenth Amendment right to due process. Estabrook further asserts that his trial counsel billed him $25, 000 for services that he did not provide, which Estabrook calls “theft by deception.” Doc. No. 1, at 13. Estabrook seeks injunctive relief consisting of orders vacating the 2016 order denying his state habeas petition; vacating his 2009 conviction and/or allowing him to withdraw his guilty plea; and granting him a new trial based on what Estabrook characterizes as “new evidence.”

         Discussion

         I. Eleventh Amendment

         It appears that Estabrook intends to invoke this court's original jurisdiction over federal civil rights actions, pursuant to 28 U.S.C. §§ 1331 & 1343, with respect to his claims alleging that his Sixth Amendment right to the effective assistance of trial counsel and his Fourteenth Amendment due process rights were violated in his state criminal case.[1]Estabrook named as defendants to these claims the State of New Hampshire and/or Merrimack County Superior Court. The Eleventh Amendment, however, bars this court from hearing claims for damages and injunctive relief asserted against the state and a state court. See Town of Barnstable v. O'Connor, 786 F.3d 130, 138 (1st Cir. 2015). Accordingly, the defendants named by Estabrook -- the State of New Hampshire and/or Merrimack County Superior Court -- are shielded from suit in this court by the Eleventh Amendment. The district judge should dismiss Estabrook's claims to the extent he has named only the State and/or Merrimack County Superior Court as defendants, without prejudice to Estabrook's ability to file a new lawsuit, naming appropriate defendants who are not immune from his claims.

         To the extent Estabrook is seeking to sue any judge sitting in the Merrimack County Superior Court, this court notes that judges are entitled to absolute immunity from claims for damages for their judicial acts, Cok v. Cosentino,876 F.2d 1, 2 (1st Cir. 1989), including the rulings at issue in this case. In addition, § 1983 bars claims for injunctive relief asserted against judges for actions taken in their judicial capacity, “unless a declaratory decree was violated or declaratory relief was unavailable.” 42 U.S.C. § 1983. There is no suggestion in the pleadings that a declaratory decree has been ...


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