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Kargbo v. Warden, New Hampshire State Prison

United States District Court, D. New Hampshire

June 6, 2018

Abu B. Kargbo
v.
Warden, New Hampshire State Prison

          REPORT AND RECOMMENDATION

          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. § 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. § 2254.

         Before 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);[1] 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.

         Background

         Much of 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).

         At 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.

         At 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 area.

         Also at 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.

         During 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.

         The prosecutor's closing argument included the following statements:

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.

         Trial 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 between them.

         At the 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.

         Standard

         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 ...

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