United States District Court, D. New Hampshire
Abu B. Kargbo
Warden, New Hampshire State Prison
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge.
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. §
632-A:2, I(b) (2007). That statute makes it unlawful to
“engage in sexual penetration with another person . .
. [w]hen the victim is physically helpless to resist.”
Kargbo is currently serving a sentence of 10 to 20 years in
the New Hampshire State Prison. Appearing pro se, he
petitions for a writ of habeas corpus. See 28 U.S.C.
this magistrate judge for a report and recommendation are:
(1) respondent's motion for summary judgment on the two
claims that remain in this case (Doc. No. 89); and (2) ten
motions filed by petitioner, seeking a variety of relief
(Doc. Nos. 100 to 109). For the reasons that follow, the
district judge should grant respondent's motion for
summary judgment (Doc. No. 89), deny petitioner's motions
(Doc. Nos. 100, 101, 102, 103, 104, 105, 106, 107, 108, 109),
and decline to issue a certificate of appealability.
the relevant background is described in the report and
recommendation dated February 21, 2018 (Doc. No. 87) that the
district judge later approved (Doc. No. 99). Accordingly,
this section describes only those matters that are relevant
to the two claims that remain, i.e., a claim of
ineffective assistance of counsel, with subparts (Claim 11),
and a claim that the prosecutor made inappropriate statements
of personal opinion during her closing argument (Claim 12).
about 3:00 a.m. on August 8, 2009, Officer Andrew Roy of the
Nashua Police Department (“NPD”) encountered
Kargbo carrying a woman through a parking lot. She was
foaming at the mouth and unresponsive. Her pants were
unbuttoned and partially unzipped. Officer Roy transported
the woman to Southern New Hampshire Medical Center
(“SNHMC”), where hospital personnel used a
sexual-assault evidence kit to collect evidence from her.
Kargbo's trial, the State entered into evidence the
victim's sexual-assault evidence kit which included,
among other things: (1) vaginal swabs containing samples
taken from her; and (2) the clothing she was wearing when
Officer Roy found her with Kargbo. Kargbo's counsel did
not object to the admission of the kit used to collect
evidence from the victim. In addition, the State introduced
expert testimony that semen from the victim's vaginal
swabs contained DNA that matched Kargbo's DNA, and
introduced evidence that when the victim was examined at
SNHMC, dirt and plant material were found in her genital
trial, the State played for the jury a recording of the
interview that NPD Detective Keith Inzenga conducted with
Kargbo. During the interview, Kargbo told Det. Inzenga that
he: (1) did not have sex with the victim, Admin. App'x at
97, 102, 103-04, 115, 117, 119, 124 (Doc. No. 68); (2) could
not remember whether he had sex with the victim, id.
at 128, 129; (3) might have had sex with the victim in a
bathroom at the Amber Room, id. at 129, 130, 131;
(4) did have sex with the victim in the men's room at the
Amber Room, id. at 132, 133, 136, 139-40, 151; (6)
did not have sex with the victim outside, id. at
130, 133; and (7) might have had sex with the victim outside,
id. at 134, 141, 148, 150, 151.
the interview, Det. Inzenga asked Kargbo about grass stains
on the knees of his pants. Kargbo told him that he had
stained his pants while playing Frisbee with a man named Dean
Schwankert, which is the same thing he had told Officer Roy
when Roy had asked about the grass stains. Schwankert,
however, testified that he had broken his back in 2003, was
on disability, was unable to run or jump, and had no memory
of playing Frisbee with Kargbo in August 2009.
prosecutor's closing argument included the following
You . . . have to answer certain questions to solve this
case. Those [are] why did the Defendant . . . lie about the
grass stains [and] why did he lie about having sex [with the
victim]. . .
[O]fficer [Roy] asked him about the green stains on his
pants, on his knees. When asked how he got those, he said he
was playing Frisbee with a friend, but we all know that's
not true. You heard Dean Schwankert testify that he was in no
condition to play Frisbee at that time and that he didn't
play Frisbee with the Defendant.
He [Kargbo] also talks to Detective Inzenga about the grass
stains. And he tells him about Dean. Tells him where he
lives, how to find him. And again, you heard the testimony.
That's a lie. He didn't play Frisbee with Dean. He
told you that.
Trial Tr. vol. IV, 417:21-418:2, 423:6-11, 427:9-13. Then,
after recounting the contradictory statements that Kargbo had
made to Det. Inzenga about whether he had sex with the
victim, and where, the prosecutor continued:
Well, ladies and gentlemen, how many stories does the
Defendant have to tell. He says they didn't have sex,
then it was consensual sex on the bathroom floor, then he
doesn't remember doing it outside, that it could have
happened and that they both might not remember.
Tr. vol. IV, 430:2-6. The prosecutor went on to attribute
Kargbo's shifting stories to his confidence that he would
not be contradicted by the victim, because he knew that she
had been too incapacitated to remember what had happened
conclusion of Kargbo's trial, Judge Nicolosi gave various
jury instructions, including these on reasonable doubt:
Under our constitutions, all defendants in criminal cases are
presumed to be innocent unless proven guilty beyond a
reasonable doubt by the State. . . . The Defendant enters
this courtroom as an innocent person, and you must consider
him to be an innocent person unless and until the State
convinces you beyond a reasonable doubt that he is guilty of
every element of the alleged offense. And also, in this case,
the State must prove that the alleged victim did not consent.
If, after all of the evidence and arguments, you have a
reasonable doubt as to the Defendant having committed any one
or more of the elements of the offense, and again, in this
case, that the alleged victim did not consent to having
sexual intercourse, then you must find him not guilty. A
reasonable doubt is just what the words would ordinarily
imply. The use of the word reasonable means simply that the
doubt must be reasonable rather than unreasonable. It must be
a doubt based on reason. It is not a frivolous or fanciful
doubt, nor is it one that can easily be explained away.
Rather, it is such a doubt based upon reason as remains after
consideration of all of the evidence that the State has
offered against it.
The test you must use in this case is this. If you have a
reasonable doubt as to whether the State has proven any one
or more of the elements of the crime charged, and in this
case, that the alleged victim did not consent to having
sexual intercourse, you must find the Defendant not guilty.
Trial Tr. vol. III, 395:20-396:21.
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).
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 ...