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Thurlow v. Warden, New Hampshire State Prison

United States District Court, D. New Hampshire

August 13, 2019

Kevin Thurlow
Warden, New Hampshire State Prison


          Andrea K. Johnstone, United States Magistrate Judge.

         Petitioner Kevin Thurlow, a prisoner in the custody of the New Hampshire Department of Corrections, has filed a petition for a writ of habeas corpus (Doc. No. 1) pursuant to 28 U.S.C. § 2254. Before the undersigned magistrate judge for a report and recommendation are the parties' cross-motions for summary judgment (Doc. Nos. 24, 26). See Apr. 2, 2019 Notice; LR 72.1. Both motions are duly opposed. See Doc. Nos. 25, 27.


         Thurlow is currently serving a 43-86-year prison sentence, pursuant to his convictions for six felony sexual assault offenses and three manufacturing child pornography offenses. See Nov. 28, 2012 Mittimuses, State v. Thurlow, No. 281-2010-CR-1686 (N.H. Super. Ct., Rockingham Cty.) (“State Criminal Case”); Def.'s Brief, State v. Thurlow, No. 2012-0935 (N.H. May 28, 2013), at 10-30. Thurlow's convictions were for offenses he committed in 2004 against his (then) stepdaughter, L.G. See State v. Thurlow, No. 2012-0935, (“Criminal Appeal”), 2014 N.H. LEXIS 32, at *2, 2014 WL 11621685, at *1 (N.H. Feb. 26, 2014). The record in this case reveals the following facts.

         Thurlow married L.G.'s mother, Linda Daigle, in 2001, when L.G. was five years old. At the time, Daigle had two children, L.G. and an eight-year-old son, A.G. When Thurlow engaged in the conduct for which he was convicted, he lived in Epping, New Hampshire with Daigle, A.G., L.G., and Thurlow's two sons, one from a previous relationship, and one born to Daigle. Until 2008, when Thurlow's offenses came to light, A.G. and L.G. spent the school year with Daigle and Thurlow in Epping, and spent summers in Vermont with their father.

         Thurlow sexually assaulted L.G. at their house, on more than one occasion, before and while L.G. was in the second, third, and fourth grade. When L.G. was 11 or 12 years old, Thurlow told her that he wanted to take pictures of her in a bathing suit. She agreed, and posed for Thurlow, wearing a bathing suit. After taking a number of photographs, Thurlow directed L.G. to move her bathing suit to the side to expose her genitals and breasts. She did so, and Thurlow took photographs in which L.G.'s genitals and breasts were exposed.

         In July 2008, after L.G. and her brother had left Epping to spend the summer with their father in Vermont, Daigle searched Thurlow's computer and discovered twenty-four of the above-described photographs of L.G. in a blue bathing suit. Daigle went to the police with the photographs she had found, and officers went to the Thurlow/Daigle residence to investigate. The police arrested Thurlow on unrelated charges, and confiscated Thurlow's computer.

         Later that month, in response to the discovery of the blue bathing suit photographs of L.G. on Thurlow's computer, L.G. was interviewed at the Child Advocacy Center (“CAC”). When asked whether Thurlow had ever touched her in a sexual way, she said that she did not know, or could not remember.[1] After her CAC interview, L.G. began seeing a counselor, who kept records of her sessions with L.G. In April 2010, L.G. gave a second interview at the CAC in which she disclosed sexual contact with Thurlow. As a result of what L.G. said in her CAC interviews, the State charged Thurlow with felony sexual assault and manufacturing child sexual abuse images.

         With respect to the manufacturing child sexual abuse image charges, the indictments specified that “Thurlow took pictures of L.G. . . . in a blue bathing suit while there was a lewd exhibition of L.G.'s genitals.” May 28, 2013 Def.'s Br., at 7- 9, Criminal Appeal. Thurlow was also indicted on four counts of manufacturing child sexual abuse images of L.G. while she was wearing a black bathing suit, but the State later nol prossed those charges. See Trial Tr., vol. I, 44:21-22, State Criminal Case.

         In the meantime, on February 22, 2012, Thurlow was indicted in this court on federal child pornography charges. See Feb. 22, 2012 Indictment, United States v. Thurlow, No. 1:12-cr-027-PB-1 (D.N.H.) (“Federal Criminal Case”) (ECF No. 1). In his federal case, he was represented by Attorney Jonathan Saxe. See Feb. 24, 2012 Order, Federal Criminal Case (ECF No. 5). On occasion, Attorney Saxe provided information and made suggestions to the Attorney Deanna Campbell, who represented Thurlow in the state criminal proceedings.

         In June 2010, during the course of his state-court prosecution, Thurlow moved the trial court to remove and replace Attorney Campbell. The trial court never ruled on Thurlow's motion. Thurlow was tried in state court in September 2012, with Attorney Campbell serving as his counsel. Thurlow was convicted on all of the charges on which he was tried. See Sept. 19, 2012 Order, State Criminal Case. The New Hampshire Supreme Court (“NHSC”) affirmed his convictions. See Criminal Appeal, 2014 N.H. LEXIS 32, at *2, 2014 WL 11621685, at *1 (N.H. Feb. 26, 2014).

         On June 23, 2014, Thurlow filed a pro se motion for a new trial in the Superior Court, arguing that: (1) his trial counsel made two errors that deprived him of his right to the effective assistance of counsel; and (2) the trial court erred by ignoring his request to fire Attorney Campbell. See June 23, 2014 Mot. for New Trial, State Criminal Case (Doc. No. 1-1, at 2). The Superior Court denied both Thurlow's motion for a new trial, see July 6, 2016 Order, Id. (“MNT Order”) at 27 (Doc. No. 1-1, at 38), and a motion for reconsideration that was filed by counsel appointed to represent Thurlow in his post-conviction proceedings. See July 27, 2016 Order, Id. (Doc. No. 1-1, at 47) (denying July 15, 2016 Def.'s Mot. for Recons., Id. (Doc. No. 1-1, at 39)). The NHSC declined Thurlow's notice of discretionary appeal. See State v. Thurlow, No. 2016-0460 (N.H. Sept. 28, 2016) (Doc. No. 1-1, at 61).

         28 U.S.C. § 2254 Standard

         A federal court may grant a petition for a writ of habeas corpus “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). When a prisoner brings a claim in federal court that “was adjudicated on the merits in State court proceedings, ” under 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 unreasonable determination of the facts” in light of the record before the state court.

Harrington v. Richter, 562 U.S. 86, 100 (2011) (citations omitted). As to the distinction between decisions that are contrary to federal law and those that involve an unreasonable application of such law, the Supreme Court has explained:

Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams v. Taylor, 529 U.S. 362, 412-13 (2000).


         Thurlow asserts three claims for relief under the Sixth Amendment to the United States Constitution. Thurlow claims that he was denied the effective assistance of trial counsel in two ways and that the trial court violated his Sixth Amendment rights by failing to rule on his request to fire Attorney Campbell.

         I. Ineffective Assistance of Counsel Claims

         A. Legal Standard

         The Sixth Amendment, which is made applicable to the states by the Fourteenth Amendment, [2] guarantees a criminal defendant “the right to the effective assistance of counsel.” United States v. Miller, 911 F.3d 638, 641 (1st Cir. 2018) (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984)). To assert an ineffective assistance of counsel claim, “[f]irst, the defendant must show that counsel's performance was deficient, ” and “[s]econd, the defendant must show that the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687.

         To satisfy the first part of the inquiry, the so-called performance prong, Thurlow must show that Attorney Campbell's representation was “outside the wide range of professionally competent assistance.” Id. at 690. To satisfy the prejudice prong, Thurlow must show “that ‘there is a reasonable probability that, but for [Attorney Campbell]'s unprofessional errors, the result of the proceeding would have been different.'” Rivera v. Thompson, 879 F.3d 7, 12 (1st Cir. 2018) (quoting Strickland, 466 U.S. at 688).

         When reviewing an ineffective assistance claim asserted in a § 2254 petition, the court must apply a “doubly deferential” standard of review, which requires the petitioner “to show that counsel's performance was objectively unreasonable and that no reasonable jurist could come to the . . . conclusion the state court drew [that counsel's performance was reasonable].” Lucien v. Spencer,871 F.3d 117, 131 (1st Cir. 2017) (emphasis in the original) (citing Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)); see also Rivera, 879 F.3d at 12. This “‘doubly deferential standard of review [which] gives both the state court and the ...

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