United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
K. Johnstone, United States Magistrate Judge.
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.
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.
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
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.
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.
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. 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.
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.
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.
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).
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).
U.S.C. § 2254 Standard
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
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
Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
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.
Ineffective Assistance of Counsel Claims
Sixth Amendment, which is made applicable to the states by
the Fourteenth Amendment,  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.
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.
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 ...