Fischer v. New Hampshire Adult Parole Bd.

• Decision Date: 02 September 2016
• Docket Number: Case No. 15-cv-130-PB
• Parties: David Fischer v. New Hampshire Adult Parole Board
• Court: U.S. District Court — District of New Hampshire

David Fischer v. New Hampshire Adult Parole Board

Case No. 15-cv-130-PB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

September 2, 2016

REPORT AND RECOMMENDATION

After a jury trial in the New Hampshire Superior Court, David Fischer ("Fischer") was convicted "on two counts of second degree assault, both of which resulted in extended terms of imprisonment." State v. Fischer (Fischer I), 165 N.H. 706, 709 (2013) (citing N.H. Rev. Stat. Ann. ("RSA") §§ 631:2, I(c) & 651:6, II(a)). Fischer now petitions for a writ of habeas corpus. See 28 U.S.C. § 2254. Before this magistrate judge for a report and recommendation are respondent's motion for summary judgment and a filing from Fischer captioned "Memorandum of Law in Support of Petition for Writ of Habeas Corpus and in Objection to Respondent's Motion for Summary Judgment." For the reasons detailed below, respondent's motion for summary judgment should be granted.

Background

Fischer's convictions resulted from events that took place in the home he shared his wife, Tracy.¹ In its opinion on Fischer's direct appeal, the New Hampshire Supreme Court ("NHSC") described those events this way:

At 10 p.m. on February 18, 2010, the victim, the defendant's wife, returned to their home in Dover from her shift as a nurse at York Hospital. She and the defendant argued. She then removed her rings, threw them at him, and told him that she "couldn't do this any more." In response, the defendant grabbed her by the throat, pushed her head into the wall behind her with such force that it dented the wall, threw her to the floor, and left the house. . . .

The defendant turned off the lights in the kitchen and went upstairs. When the victim went from the living room into the kitchen and turned the lights back on, the defendant came downstairs, turned the lights off, and lunged at her. He grabbed her from behind, put his hand over her mouth, and brought her to the floor. Then he stepped on her head, preventing her from getting up. He grabbed her by the hair and sweatshirt and dragged her into the living room. The sweatshirt tightened around her neck so she could not breathe or speak. . . .

In the morning, the defendant apologized and said that he wanted "to fix things," but the victim said that she could not stay with him. As she was leaving the house for work, the defendant charged at the door, slamming it on her finger.

Fischer I, 165 N.H. at 709.

Based upon the foregoing, Fischer "was indicted on three counts of second degree assault." Fischer I, 165 N.H. at 710. One charge arose from the door-slamming incident. The other charges arose from two incidents that took place the night before, which resulted in two separate indictments. One of them charges that Fischer

RECKLESSLY CAUSE[D] BODILY INJURY TO ANOTHER UNDER CIRCUMSTANCES MANIFESTING AN EXTREME INDIFFERENCE TO THE VALUE OF HUMAN LIFE IN THAT [HE] GRABBED TRACY FISCHER BY THE NECK, SLAMMED HER HEAD INTO A WALL AND THREW HER ONTO THE FLOOR, CAUSING CONTUSIONS AND MUSCLE STRAIN TO HER HEAD AND NECK, SUCH CONDUCT CONSTITUTING CIRCUMSTANCES MANIFESTING AN EXTREME INDIFFERENCE TO THE VALUE OF HUMAN LIFE.

The other indictment charges that Fischer

RECKLESSLY CAUSE[D] BODILY INJURY TO ANOTHER UNDER CIRCUMSTANCES MANIFESTING AN EXTREME INDIFFERENCE TO THE VALUE OF HUMAN LIFE IN THAT [HE] KNOCKED TRACY FISCHER TO THE FLOOR, STEPPED ON HER HEAD AND DRAGGED HER BY HER HAIR AND SWEATSHIRT HOOD FROM THE KITCHEN INTO THE LIVING ROOM, CAUSING CONTUSIONS AND MUSCLE STRAIN TO HER HEAD AND NECK, SUCH CONDUCT CONSTITUTING CIRCUMSTANCES MANIFESTING AN EXTREME INDIFFERENCE TO THE VALUE OF HUMAN LIFE.

Fischer was tried on all three charges.

After the State rested its case, defense counsel moved to dismiss all three charges, on grounds that the State had not introduced sufficient evidence to carry its burden of proof. Judge Brown denied the motion. The jury acquitted Fischer of the charge arising from the door-slamming incident, but found him guilty on the two other counts. For each of hisconvictions, Fischer was sentenced to an extended term of imprisonment, pursuant to RSA 651:6, II(a).

Fischer appealed his convictions, and was represented by counsel on appeal. The NHSC described Fischer's claims of error this way:

(1) the trial court erred in admitting testimony under the excited utterance hearsay exception; (2) the evidence was insufficient to prove that his conduct manifested extreme indifference to the value of human life; (3) the trial court erred in instructing the jury on extreme indifference to the value of human life; (4) the trial court violated his rights against double jeopardy by sentencing him on both second degree assault convictions; (5) the trial court erred in imposing extended terms of imprisonment; and (6) the trial court erred in failing to instruct the jury that it must unanimously find a specific bodily injury.

Fischer I, 165 N.H. at 709.

Notwithstanding the fact that he was represented by counsel, Fischer made several attempts to file pro se briefs in the NHSC, all of which were rebuffed.²

While Fischer's appeal was pending, he filed a motion for a new trial in the superior court. In that motion, he claimedthat his trial counsel provided him with ineffective assistance due to his:

(1) fail[ure] to investigate the victim and interview witnesses; (2) failure to seek the victim's mental health record; (3) failure to seek timely discovery of text messages and phone records; (4) failure to seek production of the victim's work records; (5) failure to obtain a transcript of the victim's prior sworn testimony from a protection order hearing held on March 2, 2010; (6) failure to obtain the services of a pharmaceutical expert; (7) conceding guilt in [his] closing argument; (8) failure to clarify issues in the closing argument; and (9) failure to object to jury instructions.

Resp't's Mem. of Law (Doc. No. 12-1) 6. Petitioner concurs with respondent's characterization of the issues he raised in his motion for a new trial. Judge Wageling denied Fischer's motion, and denied his motion for reconsideration. Fischer appealed, and the NHSC declined his appeal.

After the NHSC affirmed his convictions, Fischer petitioned the superior court for a writ of habeas corpus, asserting claims of ineffective assistance of trial counsel and ineffective assistance of appellate counsel. With regard to trial counsel, Fischer identified the following grounds:

(1) failure to move for a directed verdict based on the sufficiency of the evidence on the element of bodily injury; (2) failure to object to the trial court's instruction on bodily injury; (3) failure to object to the amendment of the indictments; (4) failure to request a unanimity instruction; (5) failure to move to exclude witness Schumaker's testimony as inadmissible hearsay; and (6) failure to ensure that jury was instructed that "extremeindifference to the value of human life" was a heightened form of ordinary recklessness.

Resp't's Mem. of Law (Doc. No. 12-1) 6-7. With regard to appellate counsel, he raised these grounds:

(1) failure to challenge the trial court's instruction on bodily injury on appeal as plain error; (2) failure to challenge the amendment of the indictments on appeal; (3) failure to provide the state court with case law on the failure to give a unanimity instruction as plain error; and (4) failure to "properly argue" that [the] jury was instructed that "extreme indifference to the value of human life" was a heightened form of ordinary recklessness.

Id. at 7. As with his motion for new trial, petitioner concurs with respondent's characterization of the issues he raised in his petition for a writ of habeas corpus in the state courts. Judge Schulman denied the petition. Fischer appealed, and the NHSC declined his appeal.

This action followed. In it, petitioner raises the twelve claims described in the order on preliminary review, Document No. 2. Rather than reciting petitioner's claims here, en masse, the court describes them individually, in the body of this report and recommendation.

The Legal 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." 28U.S.C. § 2254(a). Moreover, "[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). "Generally speaking, a petitioner's failure to exhaust all state remedies is 'fatal to the prosecution of a federal habeas case.'" Sanchez v. Roden, 753 F.3d 279, 294 (1st Cir. 2014) (quoting Coningford v. Rhode Island, 640 F.3d 478, 482 (1st Cir. 2011)). To exhaust the remedies available in state court, "a petitioner must have tendered his federal claim in such a way as to make it probable that a reasonable jurist would have been alerted to the existence of the federal question." Jaynes v. Mitchell, 824 F.3d 187, 192 (1st Cir. 2016) (quoting Sanchez, 753 F.3d at 294). 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).

Turning to the standard of review, the power of the federal courts to grant habeas corpus relief to state prisoners has been significantly limited by passage of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d). Under that statute, when a prisoner brings a claim infederal 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, [28 U.S.C.] § 2254(d)(1); Williams v.

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