Opinion
17-cv-253-PB
12-14-2022
Gregory Maggi v. Michelle Edmark[1]
REPORT AND RECOMMENDATION
Andrea K. Johnstone United States Magistrate Judge
Petitioner Gregory Maggi filed a petition for a writ of habeas corpus (Doc. No. 1) challenging his current confinement under 28 U.S.C. § 2254. The court stayed this matter while Mr. Maggi litigated a habeas petition in state court to exhaust his state court remedies for the federal claims he asserts here. When Mr. Maggi's state court proceedings concluded, the Court lifted the stay in this case. Mr. Maggi then filed an amended § 2254 petition (Doc. No. 28) and an addendum (Doc. No. 29) to the amended petition. Document Nos. 1, 28, and 29 are construed, together, to be the petition in this action for all purposes. So construed, the petition is before the Court for preliminary review pursuant to Rule 4 of the Rules Governing § 2254 Cases (“§ 2254 Rules”) and this Court's Local Rule 4.3(d)(4).
Preliminary Review Standard
The Court reviews petitions filed under 28 U.S.C. § 2254 and, if “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition.” § 2254 Rule 4. “Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856 (1994). As Mr. Maggi is representing himself in this matter, the court construes his pleadings liberally. See Dutil v. Murphy, 550 F.3d 154, 158 (1st Cir. 2008).
Procedural History
Mr. Maggi was convicted, after a jury trial in the Grafton County Superior Court (“GCSC”), of aggravated felonious sexual assault, felonious sexual assault, simple assault, and drug-related offenses. See State v. Maggi, No. 13-CR-55 et. seq. (GCSC). On December 22, 2014, the GCSC sentenced Mr. Maggi to a 171/2 - 35 year committed prison term, and suspended additional prison sentences.
Mr. Maggi was represented by a number of attorneys at various times in his criminal case, and represented himself for a period of time, both with and without standby counsel. Prior to his trial, Mr. Maggi retained Attorney Peter Decato to represent him at trial and sentencing and, after Mr. Maggi was found guilty, to file a Notice of Mandatory Appeal (“NOMA”) in the New Hampshire Supreme Court (“NHSC”).
On appeal, Mr. Maggi was represented by Attorney David Rothstein. While his appeal was pending, Mr. Maggi moved the NHSC to allow him to file a pro se supplemental brief. See Oct. 5, 2015 Mot. for Leave to File Pro Se Supp. Brief, State v. Maggi, No. 2015-0029 (NHSC), Pet. Addend., Ex. B (Doc. No. 28, at 32). The NHSC denied that motion. See Oct. 15, 2015 Order, id. at 31. The NHSC affirmed Mr. Maggi's convictions, see id., 2016 N.H. LEXIS 50, at *11, 2016 WL 3926565, at *4 (N.H. May 20, 2016) (Pet. Addend., Ex. C) (Doc. No. 28, at 37), and denied Mr. Maggi's subsequent motion to reconsider that decision, see Id. (N.H. June 23, 2016) (Pet. Addend., Ex. E) (Doc. No. 28, at 52).
Mr. Maggi then filed his § 2254 petition in this Court, and requested a stay of this matter so that he could return to the state courts to exhaust the federal claims which he sought to assert here. After this Court granted him a stay, Mr. Maggi filed a habeas petition in the Merrimack County Superior Court (“MCSC”). The MCSC denied Mr. Maggi's state habeas petition, see Nov. 8, 2019 Order, Maggi v. Zenk, No. 217-2017-CV-325 (MCSC) (Pet. Addend., Ex. F) (Doc. No. 28, at 54), and denied Mr. Maggi's motion to reconsider its decision, see Dec. 3, 2019 Order, id. (Pet. Addend., Ex. G) (Doc. No. 28, at 88).
Mr. Maggi appealed the MCSC's denial of his habeas petition by filing a Notice of Discretionary Appeal (“NODA”) in the NHSC. Dec. 31, 2019, NODA, Maggi v. Zenk, No. 2020-0004 (NHSC) (Pet. Addend., Ex. H (Doc. No. 28, at 89). The NHSC declined the appeal. Mar. 13, 2020 Order, id., Pet. Addend., Ex. I (Doc. No. 28, at 103).
Discussion
I. Claims Which May Proceed
Having construed Mr. Maggi's petition liberally, and made all reasonable inferences therefrom in Mr. Maggi's favor, the Court finds that Mr. Maggi has asserted the following claims which do not appear to be invalid on the face of the petition and, therefore, may proceed. In an Order issued simultaneously with this Report and Recommendation, the Court directs that the respondent answer or otherwise respond to the following claims.
A. The trial court violated Mr. Maggi's federal constitutional rights as follows.
1. The trial court violated Mr. Maggi's Sixth Amendment right not to be charged with a felony except by a grand jury when it permitted the State to amend three of the indictments against Mr. Maggi by removing “salvia” from the “controlled substances” listed in the indictment, which was a substantive change to an element of the offenses charged.
2. The trial court violated Mr. Maggi's Fifth and Fourteenth Amendment right not to be subject to double jeopardy when it allowed the State to simultaneously prosecute discrete acts of sexual assault and a “pattern” sexual assault charge, where the discrete acts and the pattern alleged involved the same victim and overlapping time frames.
3. The trial court violated Mr. Maggi's 6th Amendment right to confront the witnesses against him, to present evidence in his favor, and to a fair trial, and violated Mr. Maggi's Fourteenth Amendment due process rights when it made evidentiary rulings at Mr. Maggi's trial:
a. allowing the State to show a video recording of Mr. Maggi's statement to the police at trial, which Mr. Maggi had alleged had been illegally altered, finding that the redactions to the recording were permissible;
b. allowing the use of a video recording of Mr. Maggi's statement to the police to be shown at trial when that recording was a “video of a video,” and thus violated the “best evidence rule”;
c. not allowing Mr. Maggi to present evidence at trial that the video recording of his statement to the police, which was shown to the jury, contained allegedly “illegal alterations made . . . by state investigators,” by striking, and directing the jury not to consider, Mr. Maggi's testimony on that subject;
d. allowing multiple State's witnesses to testify to matters unrelated to Mr. Maggi's allegedly criminal actions, where the testimony amounted to character evidence which was inflammatory and unduly prejudiced Mr. Maggi;
e. allowing the admission in evidence of Facebook messages exchanged between Mr. Maggi and D.B., a minor, when those conversations were irrelevant to the issues at trial, were inflammatory and unduly prejudicial to Mr. Maggi, and amounted to impermissible character or propensity evidence, as the messages were of a sexual nature and Mr. Maggi was not charged with sexually assaulting D.B., which was inflammatory and unduly prejudiced Mr. Maggi;
f. not allowing Mr. Maggi to explain at trial why he did not have a conversation with the victims' parents about the victims frequenting Mr. Maggi's place of business;
g. not allowing Mr. Maggi to call several witnesses to testify in his defense on the basis that Mr. Maggi had not provided the prosecution with the witnesses' written statements, when Mr. Maggi had not obtained and was not in possession of any written statement made by those witnesses; and h. allowing the admission in evidence of Mr. Maggi's legal adult pornography collection as evidence of his propensity to commit the crimes with which he as charged, which was inflammatory and unduly prejudiced Mr. Maggi.
4. The trial court violated Mr. Maggi's Sixth Amendment right to represent himself at trial when, after allowing Mr. Maggi to proceed pro se, denied him the resources he needed to effectively represent himself, which necessitated Mr. Maggi's decision give up his right to represent himself and to proceed with counsel at his trial, by:
a. “interposing so-called standby counsel”;
b. denying Mr. Maggi the same notice and opportunity normally afforded to attorneys, to be heard on motions;
c. denying Mr. Maggi prompt and full hearings;
d. denying Mr. Maggi access to a computer;
e. denying Mr. Maggi access to a law library;
f. failing to accommodate Mr. Maggi's disability; and g. refusing to define the scope of standby counsel's responsibilities, and instead directing Mr. Maggi and standby counsel to find that information in caselaw, when Mr. Maggi had no access to caselaw in pretrial detention.
5. The trial court violated Mr. Maggi's Sixth Amendment right to confront the witnesses against him and present evidence in his favor by not allowing Mr. Maggi to depose the victims in his criminal case, thus depriving him of the ability to evaluate certain impeachment evidence, by applying the State rape shield law, as that law is unconstitutional as applied to Mr. Maggi in his criminal case, in that it caused him to be denied his Sixth Amendment rights to confront the evidence against him and to present evidence in his favor, and violated his Fourteenth Amendment due process rights.
6. The trial court violated Mr. Maggi's Fourteenth Amendment right to due process when it misused the State rape shield law by:
a. preventing Mr. Maggi from cross-examining one of the victims in his criminal case about her alleged recantation of a prior sexual assault allegation, where that witness' credibility was a “key issue at trial”; and b. preventing Mr. Maggi, on multiple occasions, from conducting adequate cross-examination by disallowing certain impeachment relevant to the witnesses' credibility.
7. The trial court violated Mr. Maggi's Sixth Amendment rights to the effective assistance of counsel, to conflict-free representation, and to present evidence in his favor, by refusing to hear Mr. Maggi's argument that he had been abandoned by his trial counsel when his trial counsel truncated the presentation of the defense case due to an obligation trial counsel had to another client.
8. The trial court violated Mr. Maggi's Fourteenth Amendment due process rights by improperly denying Mr. Maggi's motion to dismiss the indictments against him which alleged that Mr. Maggi had committed drug offenses, when the indictments alleged that the substance in question “purported” to be drugs, in contravention of the language in the statute Mr. Maggi was charged with violating, which uses the word “represented” instead of “purported.”
9. The trial court violated Mr. Maggi's Fifth Amendment right not to be subject to double jeopardy by improperly sentencing Mr. Maggi to consecutive sentences on his drug charges.
10. The trial court violated Mr. Maggi's Sixth Amendment right to a fair trial and his Fourteenth Amendment right to due process by not allowing Mr. Maggi to amend his court filings.
11. The trial court violated Mr. Maggi's Sixth Amendment right to a speedy trial and Fourteenth Amendment right to due process by requiring that Mr. Maggi sign speedy trial waivers when he asked for continuances in his criminal case, as the requested continuances were necessitated by the State “continually den[ying] discovery,” and/or because jail officials where Mr. Maggi was detained pretrial denied Mr. Maggi access to discovery materials which the State had provided to him.
12. The trial court violated Mr. Maggi's Fourteenth Amendment right to due process by allowing Mr. Maggi to be convicted of drug charges on insufficient evidence, as the State never introduced any actual drugs into evidence.
13. The trial court violated Mr. Maggi's Sixth Amendment right to be charged with a felony by a grand jury indictment, and his Fourteenth Amendment due process rights, by permitting the State to prosecute Mr. Maggi on a charge that he sexually assaulted J.M. when the conduct alleged could not have occurred within the time frame in the indictment.
14. The trial court denied a number of Mr. Maggi's pro se motions as untimely when the motions were filed only one month after Mr. Maggi gained access to his discovery materials.
15. The trial court allowed multiple indictments to proceed which charged Mr. Maggi with “numerous” crimes which stemmed from “one specific alleged interaction, a single alleged spree, without any evidence” to support prosecutions for multiple offenses.
16. The trial court violated Mr. Maggi's Fifth Amendment right not to be subject to double jeopardy by failing to instruct the jury that some of the indictments in the case charged Mr. Maggi with “variants,” or alternate theories, of a single offense, and that the jury could only convict Mr. Maggi of one such variant.
B. Mr. Maggi was denied his Sixth Amendment right to the effective assistance of counsel, and his Fourteenth Amendment due process rights, during pretrial proceedings and at the trial in his criminal case, as follows.
1. Trial counsel did not conduct any investigation, either himself or through an investigator.
2. Trial counsel did not conduct any legal research.
3. Trial counsel failed to obtain an expert witness to provide evidence at trial concerning the video recording of Mr. Maggi's statement to the police, after Mr. Maggi's sister retained a forensic expert to review the video recording, who provided an initial opinion from that witness that the video “had almost certainly been tampered with.”
4. Trial counsel failed to file the following motions:
a. motion(s) for funds to allow Mr. Maggi to retain an expert witness, to testify that the video recording of Mr. Maggi's statement to the police “had almost certainly been tampered with”;
b. motion(s) for discovery to obtain:
i. complete and legible copies of all of the discovery materials;
ii. information concerning two images which were not included in the report of the State forensic laboratory's analysis of Mr.
Maggi's computer;
iii. chain of custody information for all of the State's evidence/exhibits;
iv. recordings of hearings held in the Circuit Court related to the State's efforts to obtain warrants relevant to Mr. Maggi's case;
v. recordings of interactions between the prosecution and any witness, including the victims, for the purpose of determining whether the victims or other witnesses with conflicting stories were coached to testify consistently with one another, and whether the victims were tainted by leading questions they were asked during the state's investigation;
vi. the victims' academic records from Plymouth Regional High School for the period of time during and after the 2011-2012 school year;
vii. a record of what days school was cancelled at Plymouth Regional High School, including snow days, during the 2011-2012 school year;
viii. images, videos and other potentially exculpatory evidence obtained from any computer seized during the investigation and prosecution of Mr. Maggi's criminal case; and ix. Mr. Maggi's cellphone records which were in the State's possession, and were not otherwise available to Mr. Maggi, as those records would show that Mr. Maggi had little or no contact with any of the victims, to impeach the victims' statements that Mr. Maggi called them incessantly;
c. motion(s) to allow Mr. Maggi to see the physical evidence in the State's possession in person prior to trial;
d. motion(s) to depose James Dorr, an individual who had publicly stated that he orchestrated the evidence against Mr. Maggi, and
whose deposition was necessary to adequate trial preparation;
e. motion(s) for a bill of particulars;
f. motion(s) for dismissal of the indictments charging Maggi with individual sexual assaults, on the grounds that:
i. the prosecution failed to provide discovery regarding the sexual offenses charged;
ii. with regard to Count 2 of the indictment alleging that Mr. Maggi engaged in sexual intercourse with J.M. without J.M.'s consent, charged an overbroad time period during which the offense was alleged to have occurred; and iii. those indictments were otherwise defective;
g. motion(s) to dismiss the indictments charging Mr. Maggi with a pattern of sexual assault, on the grounds that:
i. the indictments did “not establish the intent of the legislature”;
ii. the indictments subjected Mr. Maggi to double jeopardy because Mr. Maggi was charged with both pattern offenses and individual offenses arising out of the same incidents;
iii. the indictments unfairly prejudiced Mr. Maggi by inflaming the passions of the jury; and iv. the indictments charged a time period which the acts underlying the pattern charges were alleged to have occurred which was broader than the time period dictated by the evidence;
h. motion(s) to dismiss the indictments charging Mr. Maggi with child pornography offenses, on the grounds that:
i. the prosecution was unable to prove that Mr. Maggi had knowledge of the images on the computers obtained during a search of Mr. Maggi's place of business made pursuant to a warrant;
ii. the prosecution failed to authenticate when and by whom the relevant images were downloaded;
iii. the prosecution failed to establish an adequate chain of custody for the items seized pursuant to a warrant on January 8, 2013, for the time period between the seizure of the items and the arrival of the items at the State forensic laboratory on January 10, 2013;
iv. many of the images which were the subject of the charges against Mr. Maggi did not violate the statute Mr. Maggi was charged with violating, N.H. Rev. Stat. Ann. § 649-A:3, in that:
(A) with regard to four images, it was impossible to determine whether the subjects of those images were minors;
(B) certain images were not sexually explicit;
(C) two images appeared to be computer-generated or photoshopped, as they were too pixelated to be perceived by the unaided eye as child abuse images; and
3. the indictments were otherwise insufficient;
i. motion(s) for dismissal of the indictments charging Mr. Maggi with drug offenses, on the grounds that:
i. the minors' statements to the Child Advocacy Center, upon which Mr. Maggi's drug charges relied, were unreliable hearsay;
ii. the indictments concerning “salvia” failed to allege that Mr. Maggi had committed a crime, as salvia is not an illegal substance;
iii. with regard to Counts 17 and 18, the indictments were insufficient to allow Mr. Maggi to prepare a defense, as they failed to provide him with notice of the drug with which those charges were concerned; and iv. with regard to Counts 3 and 5, the indictments were insufficiently specific to constitute separate charges, and thus subjected Mr. Maggi to double jeopardy;
j. motion(s) to dismiss three counts of simple assault (Counts 6, 7, 13) on the ground that those charges were brought by “secret indictments,” and did not demonstrate that they were presented to or approved by the grand jury;
k. motion(s) to dismiss two counts of endangering the welfare of a child and/or solicitation, on the grounds that:
i. the indictments did not sufficiently allege a violation of the statutes Mr. Maggi was charged with violating, N.H. Rev. Stat. Ann. §§ 693:3, III, 640-A:2, IV, and 632-A:1;
ii. the incidents charged Mr. Maggi with offenses against more than one victim, when only one victim provided a statement regarding the offense; and
iii. the indictments were not sufficiently specific to allow Mr. Maggi to defend the charges, as a different date range was provided for each victim;
l. motion(s) seeking permission for Mr. Maggi to see the evidence against him in person prior to trial;
m. motion(s) seeking permission for Mr. Maggi to see J.M.'s written account of the offense with which Mr. Maggi was charged;
n. motion(s) to transcribe the victims' interviews;
o. motion(s) to sever the charge identified in the State court record as #758691 from the other charges, and to sever the charges identified in the State court record as #754867C and #754868C, from the other charges;
p. motion(s) to suppress evidence of Facebook messages between Mr. Maggi and the victims in his case on the basis that Mr. Maggi's Facebook account had been hacked and/or tampered with such that exculpatory messages were removed from his account and replaced with incriminating messages;
q. motion(s) to reconsider the trial court's order concerning the Howard hearing conducted in Mr. Maggi's criminal case;
r. motion(s) to reconsider the trial court's order denying Mr. Maggi's motion to suppress evidence which Mr. Maggi alleges was obtained pursuant to an improperly issued warrant;
s. motion(s) to continue Mr. Maggi's trial to allow trial counsel sufficient time to prepare for trial; and
t. “necessary” motion(s) in limine.5. After a bona fide question was raised as to Mr. Maggi's competency to stand trial, trial counsel allowed Mr. Maggi's trial to proceed without a hearing to determine Mr. Maggi's competency. 6. Trial counsel failed to have excluded from trial the testimony of multiple State's witnesses, which testimony was unrelated to the offenses charged, and which amounted to impermissible character evidence, which was inflammatory and unduly prejudiced Mr. Maggi.
In his filings, Mr. Maggi describes the indictments underlying Counts 17 and 18 as “duplicitous.” Appellant's Mot. for Leave to File Pro Se Suppl. Br., State v. Maggi, No. 20150029 (NHSC), Pet. Addend., Ex. B. (Doc. No. 28, at 32).
See State v. Howard, 121 N.H. 53, 526 A.2d 457 (N.H. 1981).
7. After the prosecutor advised trial counsel, during trial, that the State's lead witness(es) would be substantially changing his or her version of relevant events, trial counsel failed to:
a. make effective use of the changed statements to impeach the witness(es);
b. obtain a recess to investigate the changed testimony, depose the witness(es), or otherwise seek to understand what the witness(es)' changed testimony would be; and
c. take any other action to “deal with this late disclosure” of the changed statements.
8. Failed to adequately respond to State's witnesses' testimony about “many uncharged bad acts” attributed to Mr. Maggi, as the defense was not notified that the evidence would be introduced at trial.
9. Trial counsel failed to make all appropriate objections during pretrial hearings and at trial.
10. Trial counsel failed to obtain and present information necessary to Mr. Maggi's defense, including pictures and videos, including surveillance videos of Mr. Maggi's place of business.
11. Trial counsel failed to preserve issues for appeal.
12. Trial counsel improperly truncated Mr. Maggi's defense by calling fewer witnesses than originally planned, “because he had another case to get to which was scheduled to begin the week after Mr. Maggi's case had been scheduled to conclude,” and the State's case had lasted longer than anticipated.
13. Trial counsel denied Mr. Maggi conflict-free representation due to an actual conflict of interest, in that counsel abandoned Mr. Maggi by truncating the defense case at Mr. Maggi's trial, because he had a “more important case to attend to.”
14. Trial counsel failed to introduce evidence of Mr. Maggi's good character.
15. Trial counsel failed to notice an alibi defense.
16. Trial counsel failed to notice a “defense of property” defense to the simple assault charges brought against Mr. Maggi.
17. Trial counsel failed to fully consult with Mr. Maggi either before or after he filed a Notice of Mandatory appeal on Mr. Maggi's behalf.
18. Trial counsel failed to include all of the available appeal issues in the Notice of Mandatory Appeal counsel filed on Mr. Maggi's behalf.
C. Mr. Maggi was denied his Sixth Amendment right to the effective assistance of appellate counsel during the direct appeal of his criminal case, as follows.
1. Appellate counsel failed to fully investigate all of the issues in Mr. Maggi's case.
2. Appellate counsel failed to adequately consult with Mr. Maggi.
3. Appellate counsel failed to adequately consult with Mr. Maggi's trial counsel and/or other attorneys who had represented or served as stand-by counsel for Mr. Maggi.
4. Appellate counsel failed to present and brief certain preserved and unpreserved issues in Mr. Maggi's direct appeal, including:
a. that trial counsel was ineffective;
b. that the trial court allowed inadmissible evidence to be introduced at trial; and c. that the prosecution had engaged in misconduct by:
i. denying Mr. Maggi discovery the State was obligated to provide; and ii. presenting inadmissible evidence at trial.
D. Prior to and during trial, the prosecutors in Mr. Maggi's criminal case engaged in systemic, willful, and malicious prosecutorial misconduct, in violation of Mr. Maggi's Sixth Amendment right to a fair trial and Fourteenth Amendment right to due process as, as follows.
1. Prosecutors repeatedly falsely stated, in hearings and court filings, that they had provided Mr. Maggi with discovery and that Mr. Maggi could access those materials at the jail where he was detained, resulting in the trial court's denial of Mr. Maggi's motion(s) for discovery depositions on the basis that the discovery depositions were unnecessary as discovery materials had been provided, and was available, to Mr. Maggi.
2. Prosecutors made false statements in hearings and court filings indicating that the victims' testimony would not change at trial.
3. Prosecutors withheld “key” information from Mr. Maggi.
4. After prosecutors represented, at pretrial hearings, that Mr. Maggi had received all of the information concerning the evidence the State intended to use at trial to prove the drug offenses charged, State witnesses testified to “many uncharged bad acts” attributed to Mr. Maggi without notification that such evidence would be introduced at trial.
II. Exhaustion
To be eligible for federal habeas relief, a petitioner must show that he has exhausted the remedies available to him in the state courts for those claims, or that state corrective processes are unavailable or ineffective to protect his rights. See 28 U.S.C. § 2254(b)(1); Shinn v. Ramirez, 142 S.Ct. 1718, 1732 (2022(state prisoner ordinarily satisfies requirement to exhaust available state court remedies before seeking federal habeas relief “by raising his federal claim before the state courts in accordance with state procedures”); Coningford v. Rhode Island, 640 F.3d 478, 482 (1st Cir. 2011) (“To achieve exhaustion, ‘a habeas petitioner bears a heavy burden to show that he fairly and recognizably presented to the state courts the factual and legal bases of [his] federal claim.'”) (citation omitted); Gunter v. Maloney, 291 F.3d 74, 82 (1st Cir. 2002) (“where the claim has not been fairly presented on direct appeal . . . it should be fairly presented to the state court through a motion for collateral relief”).
In New Hampshire, the exhaustion requirement is generally satisfied when the NHSC has had an opportunity to rule on each federal claim in the § 2254 petition, either in the context of a direct appeal or in a collateral review proceeding. See Lanigan v. Maloney, 853 F.2d 40, 42 (1st Cir. 1988); see also Gunter, 291 F.3d at 82. However, the exhaustion requirement is not
satisfied if the petitioner has not articulated his or her claim in the state courts in a manner that would alert the state courts to its federal nature. “‘The appropriate focus'” for purposes of determining if the federal claim has been exhausted, “‘centers on the likelihood that the presentation in state court alerted that tribunal to the claim's federal quality and approximate contours.'” Coningford, 640 F.3d at 482 (citation omitted). The burden is on the petitioner to demonstrate exhaustion of state remedies. Id.
A petition that includes both exhausted and unexhausted claims is called a “mixed petition.” Rhines v. Weber, 544 U.S. 269, 273 (2005). A mixed petition is subject to dismissal without prejudice. See id. at 275; 28 U.S.C. § 2254(b)(1). A petitioner who has filed a mixed petition may save his case from being dismissed in its entirety by: (1) seeking a stay for purposes of completely exhausting state court remedies, which requires a showing of good cause for the petitioner's previous failure to exhaust state remedies, an absence of dilatory tactics, and a showing that the claims at issue are not plainly meritless, see Rhines, 544 U.S. at 277-78; (2) filing a motion to forego the unexhausted claims, with the understanding that foregoing certain claims may mean that the petitioner will never be able to litigate them, due to the successive petition bar in 28 U.S.C. § 2244(a)-(b); or (3) demonstrating that “there is an absence of available State corrective process,” 28 U.S.C. § 2254(b)(1)(B)(i), or that that “circumstances exist that render such process ineffective to protect” his rights, 28 U.S.C. § 2254(b)(1)(B)(ii).
This Court previously granted Mr. Maggi a stay so that he could seek post-conviction relief in the State courts as to any claim which was not exhausted on direct appeal prior to filing this action. Mr. Maggi asserts that, acting through counsel and pro se, he has raised and/or exhausted, or attempted to raise and/or exhaust all of the claims listed in this Report and Recommendation in the state courts. With his petition documents, Mr. Maggi has provided this Court with some of the documents filed, and orders issued, in his post-conviction state court proceedings. The court has reviewed those documents, which demonstrate that Mr. Maggi has exhausted at least some of his claims. The record before the Court at this time, however, does not demonstrate that Mr. Maggi has exhausted each of the above-listed claims, including the federal nature of each claim.
Rather than reinstate the stay in this case at this time, or to require Mr. Maggi to demonstrate exhaustion of all of his claims by filing additional materials to demonstrate exhaustion, including transcripts which he may not have in his possession, the Court, in an Order issued simultaneously with this Report and Recommendation, directs the respondent, if she intends to assert that any of the claims in the petition are unexhausted, to file a motion to dismiss the petition on that basis by March 15, 2023. If the respondent files such a motion, Mr. Maggi will have the opportunity to respond to the motion. At that time, he will be able to: demonstrate that all of his claims have been fully exhausted in the state courts, forego his unexhausted claims (if any), demonstrate that there are no available effective state remedies to exhaust his claims, or ask the Court to reinstate the stay in this matter to allow him to return to the state courts to exhaust any unexhausted claims.
III. Claims the District Judge Should Dismiss
A. Fourth Amendment Claims
Mr. Maggi has asserted claims in this case challenging his conviction on the basis that evidence admitted at his trial was obtained in violation of his Fourth Amendment rights. Specifically, Mr. Maggi argues that the police seized evidence from his workplace pursuant to a warrant, but that the warrant was illegally obtained and therefore, the evidence seized and used against him at trial should have been suppressed or otherwise excluded from trial. Additionally, Mr. Maggi argues that evidence obtained from the same search was suppressed in another criminal case of Mr. Maggi's, and that therefore the GCSC's denial of his motion to suppress was error.
Mr. Maggi is asserting in these claims that evidence seized in violation of his Fourth Amendment rights was used to obtain his conviction. Such claims are not cognizable as a basis for obtaining federal habeas relief under § 2254. “[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Stone v. Powell, 428 U.S. 465, 494 (1976) (citation omitted); see also Sanna v. Dipaolo, 265 F.3d 1, 8-10 (1st Cir. 2001) (federal courts cannot generally review Fourth
Amendment claims in a § 2254 petition unless the state failed to provide a “full and fair” opportunity to litigate that claim, or there has been “an irretrievable breakdown in the process provided by the state” (citing Stone, 428 U.S. at 494)).
Mr. Maggi has not asserted any facts which suggest that the GCSC failed to provide him a full and fair opportunity to seek to exclude or suppress the challenged evidence at trial on the basis that it was obtained in violation of his Fourth Amendment rights. To the contrary, Mr. Maggi states that he was afforded a suppression hearing in the trial court. Accordingly, the district judge should dismiss Mr. Maggi's claims asserting that evidence admitted at his trial was obtained in violation of his Fourth Amendment rights.
B. Self-Incrimination Claim
Mr. Maggi alleges that his Fifth and Fourteenth Amendment right not to be forced to incriminate himself was violated at his trial. Specifically, Mr. Maggi asserts that, with regard to his conviction on drug-related offenses, the only evidence introduced at trial which indicated that the substance in question was actually an illegal drug was a witness' testimony that Mr. Maggi had told the witness that the substance was an illegal drug. The Fifth and Fourteenth Amendments protect a criminal defendant from having his own statements used against him at trial if those statements were made involuntarily during a “‘custodial police interrogation.'” Dickerson v. United States, 530 U.S. 428, 440 (2000) (quoting Miranda v. Arizona, 384 U.S. 436, 467 (1966)). Mr. Maggi does not allege that his statement was made in response to a police interrogation, or that he was in custody when he made the statement. The introduction of that statement, therefore, does not implicate Mr. Maggi's Fifth and Fourteenth Amendment right against self-incrimination, and the District Judge should dismiss Mr. Maggi's claim based on the alleged violation of his right against self-incrimination.
C. Claims Concerning Trial Counsel
1. Promises and Requests
Mr. Maggi asserts that his Sixth and Fourteenth Amendment right to the effective assistance of trial counsel was violated when his trial counsel, Attorney Decato failed to do certain things which he had either promised Mr. Maggi he would do, or which Mr. Maggi and/or members of his family requested that he do. Mr. Maggi asserts that trial counsel's failure to comply with his requests or fulfill promises deprived him of his Sixth Amendment right to the effective assistance of counsel.
To demonstrate that his Sixth Amendment right to the effective assistance of trial counsel was violated, Mr. Maggi must prove: (1) “‘that counsel's representation fell below an objective standard of reasonableness,'” and (2) “that any such deficiency was ‘prejudicial to his defense.'” Garza v. Idaho, 139 S.Ct. 738, 744 (2019) (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984)). An attorney's failure to keep a promise to a client, or to accede to a client's request, by itself, does not state a Sixth Amendment violation where the attorney's acts or omissions do not otherwise violate the ineffective assistance standard.
To the extent Mr. Maggi has asserted claims that a particular act or omission by his trial counsel amounted a constitutionally deficient performance which prejudiced Mr. Maggi, those claims have been identified, in this Report and Recommendation, as a claim that may proceed in this action. However, to the extent Mr. Maggi asserts that his Sixth Amendment right to the effective assistance of counsel was violated because his attorney broke promises to him or did not comply with his requests, the District Judge should dismiss such claims.
2. Claims Not Challenging Conviction
Mr. Maggi has asserted claims in his petition alleging that Attorney Decato: never arranged access to, or the return of, property the State seized from Mr. Maggi which was “without evidentiary value”; failed to intervene to assist Mr. Maggi in redressing unconstitutional conditions of confinement during his pretrial detention; never obtained surveillance video of GCDC guards harassing and assaulting Mr. Maggi after his trial; and failed to assist Mr. Maggi in stopping the GCDC and the NHSP from interfering with Mr. Maggi's legal mail and legal documents. These assertions, even if true, do not call into question the constitutionality of Mr. Maggi's convictions and/or sentences, and are thus not properly asserted in a habeas action under § 2254. The District Judge, therefore, should dismiss those claims, without prejudice to Mr. Maggi's ability to assert them in a civil action in state or federal court.
E. Claims of State Habeas Court Error
Mr. Maggi asserts that his present custody is unconstitutional because the state habeas court violated his Fourteenth Amendment right to due process and his Sixth Amendment right to the effective assistance of counsel during the state habeas proceedings. Specifically, Mr. Maggi asserts that the state habeas court: did not allow Mr. Maggi to amend his pleading after his post-conviction attorney withdrew from the case, improperly limited the issues he could litigate in the state habeas proceedings, denied Mr. Maggi access to discovery, and denied Mr. Maggi the ability to call or impeach certain witnesses. Mr. Maggi also complains that his trial counsel, who was the principal witness at the hearing on his state habeas petition, failed to adequately prepare himself to testify and fabricated some of his testimony.
Criminal defendants have no federal constitutional right to post-conviction collateral review proceedings beyond a direct appeal. See Pennsylvania v. Finley, 481 U.S. 551, 557 (1987) (states are not obliged to provide an avenue for a criminal defendant to collaterally attack his criminal conviction after he loses his direct appeal). Similarly, there is generally no federal right to counsel in a post-conviction collateral challenge to a state conviction. See 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.”); Shinn, 142 S.Ct. at 1737 (“there is no constitutional right to counsel in state postconviction proceedings”); Finley, 481 U.S. at 557. Accordingly, Mr. Maggi cannot assert a claim for relief in this § 2254 action based on alleged violations of his rights, including his right to the effective assistance of counsel, at his post-conviction state habeas proceedings and the District Judge should dismiss Mr. Maggi's claims so asserting.
F. Equal Protection
Mr. Maggi alleges that his criminal prosecution violated his Fourteenth Amendment right to equal protection of the law because the victims of his offenses engaged in the same behavior for which Mr. Maggi was indicted, but only Mr. Maggi, and not the victims, were charged criminally for that conduct. Assuming, without deciding, that any victim in Mr. Maggi's case engaged in conduct for which he or she could be criminally prosecuted, and that Mr. Maggi's equal protection claim is appropriately asserted in a habeas petition under § 2254, Mr. Maggi has failed to state a claim for relief based on a violation of his equal protection rights.
“[T]he decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in [the prosecutor]'s discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (footnote omitted); see also United States v. Armstrong, 517 U.S. 456, 463 (1996). However, a prosecutor's decision to prosecute or not cannot be “[d]eliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.” United States v. Wayte, 470 U.S. 598, 608 (1985) (internal quotation marks and citations omitted). To demonstrate that a criminal prosecution violated his equal protection rights, Mr. Maggi must present evidence to demonstrate “that the prosecutorial policy “‘had a discriminatory effect and that it was motivated by a discriminatory purpose.'” Armstrong, 517 U.S. at 465 (quoting Wayte, 470 U.S. at 608).
Further, to assert an equal protection claim based on the prosecutor choosing to prosecute him, but not his victims, Mr. Maggi must demonstrate that he has been treated differently than another person who is similarly-situated to himself in all relevant aspects. City of Cleburne v. Cleburne Living Ctr.,473 U.S. 432, 439 (1985).
Mr. Maggi has not supported his equal protection claim with any facts or allegations that his prosecution as motivated by discrimination on an improper basis, or that it had such an effect. Additionally, Mr. Maggi has failed to demonstrate that any of the victims of his crimes were similarly situated to him in all relevant respects such that the government had any obligation to treat them equally. Accordingly, Mr. Maggi has failed to state a claim that his conviction is unconstitutional because it violated his right to equal protection of the laws, and the District Judge should dismiss this claim.
G. State Law Claims
1. Claim that Guilty Verdicts Were “Against the Weight of the Evidence”
Mr. Maggi asserts claims that the trial court improperly failed to find that the guilty verdicts in his case were “against the weight of the evidence.” Dec. 29, 2014 NOMA, Pet. Addend., Ex. A (Doc. No. 28, at 7). In general, “[a] manifest-weight-of-the-evidence claim is a state-law claim and, thus, not cognizable on federal habeas review.” Leachman v. Winn, No. 181080, 2018 U.S. App. LEXIS 37824, at *5, 2018 WL 11303580, at *2 (6th Cir. July 2, 2018). Therefore, Mr. Maggi's assertion that the state courts erred in finding that the jurors' verdict was against the weight of the evidence is legally insufficient to be a basis for relief under 28 U.S.C. § 2254, and the District Judge should dismiss the claim on that basis.
2. Unprecedented Use of Criminal Statute
Mr. Maggi asserts that the indictments charging him with drug-related offenses should be dismissed because there was “no precedent” for the State of New Hampshire using the statute Mr. Maggi was charged with violating to prosecute a person alleged to have sold drugs to a minor. Mr. Maggi states that the statute in question has generally been used to prosecute individuals who have sold drugs to undercover law enforcement officers.
The fact that an indictment charges a violation of a criminal statute in a novel manner does not provide a basis for dismissing an indictment or a reason to find a conviction invalid where the statute provides adequate notice of the conduct which would violate its provisions. Mr. Maggi does not allege that the statute in question failed to provide him with adequate notice that his behavior was criminal, and the District Judge should dismiss his claim based on the prosecution's allegedly unprecedented use of state law to charge Mr. Maggi criminally for selling drugs to a minor.
3. New Hampshire Constitution
Mr. Maggi alleges that the allegations underlying the asserts claims in his petition alleging violations of his federal constitutional rights also give rise to claims that his rights under the New Hampshire Constitution have been violated. Section 2254 authorizes this Court to grant a petitioner relief from confinement pursuant to a state court judgment on the grounds that such confinement violates his or her federal rights. See 28 U.S.C. § 2254. Claims asserting violations of state laws are generally not cognizable in a § 2254 petition. See Wilson v. Corcoran, 562 U.S. 1, 16 (2010) (“it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack” in a § 2254 petition (emphasis added)); Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“‘federal habeas corpus relief does not lie for errors of state law'” (citation omitted)). Accordingly, the District Judge should dismiss Mr. Maggi's claims asserting violations of state law, without prejudice to his ability to raise those claims in an action brought before a court with jurisdiction to consider them.
H. Bail
Mr. Maggi alleges that the State court's bail order in his criminal case prevented his release prior to trial, resulting in his spending his pretrial period detained at the GCDC, in violation of his rights under the Excessive Bail Clause of the Eighth Amendment and his Fourteenth Amendment due process rights. As noted above, § 2254 is the proper vehicle for a state prisoner, in custody pursuant to the judgment of a state court, to challenge the constitutionality of his current confinement. A convicted prisoner, however, cannot challenge his or her pre-trial confinement based on excessive bail in a § 2254 action, as such claims become moot upon that prisoner's conviction and transfer to state prison. See Jackson v. Clements, 796 F.3d 841, 843 (7th Cir. 2015); Porter v. Pelino, 985 F.2d 552, 1992 U.S. App. LEXIS 32221, at *5, 1992 WL 436195, at *2 (1st Cir. Dec. 9, 1992) (unpublished table decision); Williams v. Wall, No. 09-cv-0055-ML, 2009 U.S. Dist. LEXIS 120122, at *5-6, 2009 WL 4981463, at *2 (D.R.I. Dec. 1, 2009), R&R adopted, 2009 U.S. Dist. LEXIS 120125, 2009 WL 4981463 (D.R.I. Dec. 22, 2009); see also Laster v. Skipper, No. 1:21-cv-366, 2021 U.S. Dist. LEXIS 86767, at *4, 2021 WL 1809837, at *2 (W.D. Mich. May 6, 2021) (citing Murphy v. Hunt, 455 U.S. 478, 481 (1982) (in general, Eighth Amendment claim to pretrial bail becomes moot once criminal defendant is convicted)). Accordingly, the District Judge should dismiss Mr. Maggi's claims challenging his bail.
Conclusion
For the foregoing reasons, the Court recommends that the District Judge dismiss Mr. Maggi's claims asserting: violation(s) of his Fourth Amendment rights; violation(s) of his Fifth and Fourteenth Amendment right against self-incrimination; violation(s) of his Sixth Amendment right to the effective assistance of trial counsel to the extent that his trial counsel failed to fulfill promises, accede to requests, arrange the return of his property, and address the conditions of his confinement; state habeas court error; violation(s) of his Eighth Amendment right not to be subjected to excessive bail, and violations of state law. Any objections to this Report and Recommendation must be filed within fourteen days of receipt of this notice. Fed.R.Civ.P. 72(b)(2). The fourteen-day period may be extended upon motion. Failure to file any objection within the specified time waives the right to appeal the district court's Order. See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016). Only those issues raised in the written objections to this R&R “‘are subject to review in the district court,'” and any issues “‘not preserved by such objection are precluded on appeal.'” Id. (citations omitted).