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Beers v. Warden, New Hampshire State Prison

United States District Court, D. New Hampshire

December 19, 2018

Timothy Beers
v.
Warden, New Hampshire State Prison

          REPORT AND RECOMMENDATION

          ANDREA K. JOHNSTONE, UNITED STATES MAGISTRATE JUDGE.

         Before this court is habeas corpus petitioner Timothy Beers's motion (Doc. No. 27), seeking to forego further litigation of Claims 1 and 3 in this action.[1] While it is clear that Beers would prefer that the court hear those claims on their merits, rather than dismiss them, this court has explained to Beers that because he has not exhausted his state remedies on those two claims and has not shown good cause for failing to do so, his petition remains “mixed, ” and none of his claims can be considered on the merits. See Dec. 11, 2018 Order; Sept. 14, 2018 Report and Recommendation (“R&R”) (Doc. No. 23); Aug. 14, 2018 Order (Doc. No. 21). This court has also explained that the dismissal of Claims 1 and 3 at this time will allow the court to consider the merits of the rest of his claims, but will also likely result in Beers being unable to seek relief on Claims 1 and 3 in a future petition challenging his conviction. See Nov. 14, 2018 Order; Sept. 14, 2018 R&R (Doc. No. 23). Therefore, unless Beers files a timely objection to this R&R effectively rescinding his motion to forego Claims 1 and 3, the district judge should grant that motion (Doc. No. 27), dismiss those claims, and direct respondent to answer Claims 2, 4, 5, and 6 set forth below:

1. . . . .
2. Beers's conviction was obtained in violation of his Fourteenth Amendment right to due process in that:
a. The prosecutor engaged in misconduct, by arguing that Beers did not take the opportunity to provide the jury with a motive for why that witness would have lied; and
b. The trial court improperly overruled Beers's trial counsel's objection, and failed to declare a mistrial sua sponte, in response to the prosecutor's closing argument, in which the prosecutor argued that Beers did not take the opportunity to provide the jury with a motive for why the witness would have lied.
3. . . . .
4. Beers's conviction was obtained in violation of his Fifth Amendment privilege against self-incrimination as the prosecutor's closing argument indirectly commented on Beers's failure to testify, in arguing that Beers did not take the opportunity to provide the jury with a motive for why a witness lied.
5. Beers's conviction was obtained in violation of his Sixth Amendment right to the effective assistance of counsel, in that trial counsel failed to object to the prosecutor's closing argument, to the extent it argued that since the victim's testimony didn't need to be corroborated, the jury could convict Beers if the jury believed the victim's testimony beyond a reasonable doubt, which had the effect of misstating the burden of proof.
6. Beers's conviction was obtained in violation of his Fourteenth Amendment right to due process as the trial judge failed to sustain defense counsel's objection that the prosecutor's closing argument improperly asked the jury to draw inferences from facts not in evidence.

Aug. 14, 2018 Order (Doc. No. 21) (listing claims).

         Conclusion

         For the foregoing reasons, the magistrate judge recommends that the district ...


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