UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Harvey Pratt

v. Civil No. 05-cv-191-JD

Warden, Northern New Hampshire

Correctional Facility

O R D E R

Harvey Pratt, who is proceeding pro se, seeks relief through

a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, from his

conviction and sentence on a charge of interfering with the

custody of a minor in violation of New Hampshire Revised Statutes

Annotated (“RSA”) § 633:4. The court previously granted summary

judgment in favor of the warden on three of Pratt’s ineffective

assistance of counsel claims and his jurisdictional claim. 

Pratt’s remaining claims, however, were insufficiently addressed

in the warden’s previous motion. The warden now moves for

summary judgment on the remaining claims. 

Background

The pertinent background information was provided in the

court’s previous order. Neither Pratt nor the warden has

introduced a different factual record for purposes of this

motion. Therefore, the background facts are repeated here as

follows. 

Case 1:05-cv-00191-JD Document 28 Filed 05/23/06 Page 1 of 25
1The FBI found messages sent by Pratt to Jamie that

indicated he told her he was twenty-five and liked younger women

and that suggested she was planning with him to leave home.

2

Pratt met Jamie Buffington through the Internet. Jamie said

that she was sixteen, when she was actually fourteen, and Pratt

was thirty-three. Pratt lived in Quincy, Massachusetts, and

Jamie lived with her father and step-mother in Londonderry, New

Hampshire. 

On February 10, 2000, Jamie called Pratt and told him she

wanted to leave home and live with him. Pratt told her to get as

far from home as possible and that he would pick her up. Jamie

hitchhiked from her home to the Mall of New Hampshire in

Manchester. Pratt drove to Manchester and picked Jamie up at a

KMart near the Mall. 

Pratt drove Jamie to his apartment in Quincy. Jamie

testified that Pratt gave her money, kissed her, discussed having

sex with her, gave her beer and offered her other alcohol, and

told her to tell his roommate and anyone else at the apartment

that she was eighteen. He also offered Jamie his telephone to

call home, but Jamie did not use it. When Jamie’s father found

she was missing, he contacted police. With information from

Jamie’s step-sister, the police found Jamie at Pratt’s apartment. 

Jamie’s father drove to Quincy to pick her up and provided her

computer to the police who sent it to the Federal Bureau of

Investigation for analysis.1

Case 1:05-cv-00191-JD Document 28 Filed 05/23/06 Page 2 of 25
3

 Pratt was indicted in September of 2000 on one count of

interference with custody. He was tried and found guilty on

August 14-15, 2001. Pratt appealed on the ground that the

evidence was insufficient to support his conviction. The New

Hampshire Supreme Court affirmed his conviction without a

published decision. Pratt then filed pro se motions to amend his

sentence, for a new trial, and to quash the indictment. Counsel

were appointed to represent Pratt on the motions to amend

sentence and for a new trial, and the motion to amend sentence

was granted on appeal. After a hearing, Pratt was resentenced,

but his motions for a new trial and to quash the indictment were

denied. The supreme court declined Pratt’s appeals.

Standard of Review

A federal court may grant habeas relief only if the

petitioner demonstrates that he is in custody “in violation of

the Constitution or laws . . . of the United States.” 28 U.S.C.

§ 2254(a). “‘The Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”) prevents a federal court from granting an

application for writ of habeas corpus with respect to a claim

adjudicated on the merits in state court unless that adjudication

resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.’” Knight

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4

v. Spencer, --- F.3d ---, 2006 WL 1148484, at *5 (1st Cir. May 2,

2006)(quoting Norton v. Spencer, 351 F.3d 1, 4 (1st Cir. 2003)). 

If the claim was not adjudicated on the merits, it is reviewed

under a de novo standard. Lavallee v. Coplan, 374 F.3d 41, 43

(1st Cir. 2004).

Because the state court summarily disposed of the claims at

issue here without even naming all of them, this court raised an

issue in response to the warden’s first motion for summary

judgment as to what standard of review should apply. The warden

urges that the deferential standard should apply in this case,

arguing that any denial of Pratt’s claims by the state court

merits deferential review. As the court pointed out in the

previous order, the circuits differ on how to apply the

deferential AEDPA standard when the state court’s decision is

unclear as to whether a federal claim was actually decided. See,

e.g., Lynn v. Bliden, 443 F.3d 238, 246 (2d Cir. 2006); Lambert

v. Blodgett, 393 F.3d 943, 969 n.15 (9th Cir. 2004). The First

Circuit follows the view “that a mere recognition and rejection

of the federal claim without any further discussion still invokes

AEDPA deference.” White v. Coplan, 399 F.3d 18, 23 (1st Cir.

2005); DiBenedetto v. Hall, 272 F.3d 1, 6 (1st Cir. 2001)

(“[W]hen the state court has addressed the federal constitutional

issue, it is its ultimate outcome, and not its rationalization,

which is the focus.”). 

Case 1:05-cv-00191-JD Document 28 Filed 05/23/06 Page 4 of 25
5

It is far from clear in this case, however, whether the

state court recognized the federal claims in the group of claims

that were summarily denied. After considering and rejecting

several claims of ineffective assistance of counsel and a claim

that the trial court lacked jurisdiction, the court stated: “The

Court has also considered the remainder of defendant’s claimed

errors, including prosecutorial misconduct, bias of the trial

judge, juror bias, and other bases for ineffective assistance of

counsel. The Court finds these allegations are not supported by

the record and are otherwise without merit.” State v. Pratt, 00-

S-1624, at *10 (Rockingham County Sup. Ct. Aug. 20, 2004). 

Although the deferential standard might apply, at least as to the

remainder of the ineffective assistance of counsel claims, in an

abundance of caution, the court will address the claims under the

de novo standard, determining whether Pratt is in custody in

violation of the Constitution or federal law. § 2254(a).

Discussion

Pratt’s remaining claims in support of his petition for a

writ of habeas corpus are prosecutorial misconduct, the lack of

an impartial judge, and ineffective assistance of trial and

appellate counsel. As noted above, three ineffective assistance

of counsel claims and Pratt’s jurisdictional claim were

previously resolved on summary judgment. The warden now seeks

summary judgment on the remaining claims.

Case 1:05-cv-00191-JD Document 28 Filed 05/23/06 Page 5 of 25
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Pratt was convicted of one count of felony interference with

a minor in violation of RSA 633:4. That crime is defined as

follows: 

A person is guilty of a class B felony if such person

knowingly takes from this state or entices away from

this state any child under the age of 18, or causes any

such child to be taken from this state or enticed away

from this state, with the intent to detain or conceal

such child from a parent, guardian or other person

having lawful parental rights and responsibilities as

described in RSA 461-A.

RSA 633:4, I. As such, the felony offense of interference with a

minor requires the state to prove that the defendant knowingly

intended to take or entice a child under eighteen away from New

Hampshire with the intent to detain or conceal the child from her

parent or guardian. See State v. Pratt, Case No. 2001-748 (N.H. 

Nov. 6, 2002) (unpublished decision).

A. Prosecutorial Misconduct

Pratt alleges that during his criminal trial the prosecutor

made improper comments and arguments, introduced evidence of

“prior bad acts,” leaked information to the press causing

prejudicial publicity, failed to preserve evidence, “committed

fraud on the tribunal” and introduced fabricated witness

statements, and proceeded with insufficient evidence to convict

him. Pratt also alleges that the prosecutor failed to disclose

exculpatory evidence of his own telephone bill and of Jamie’s

parents’ marital settlement agreement. 

Case 1:05-cv-00191-JD Document 28 Filed 05/23/06 Page 6 of 25
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1. Prosecutor’s Comments and Argument

Pratt alleges in generalities that the prosecutor made

improper comments and argument during his criminal trial. Pratt

argues that the prosecutor improperly portrayed his crime as

sexual assault rather than interference with custody, the crime

with which he was charged. His one example of an allegedly

improper comment by the prosecutor is that during his closing

argument, the prosecutor told the jury that Pratt “was as guilty

as guilty gets.” 

Prosecutorial misconduct consisting of improper comment or

argument provides a basis for habeas relief only if it “so

infected the trial with unfairness as to make the resulting

conviction a denial of due process.” Donnelly v. De Christoforo,

416 U.S. 637, 643 (1974); accord Moreno Morales v. United States,

334 F.3d 140, 148 (1st Cir. 2003). “[I]t is not enough that the

prosecutor’s remarks were undesirable or even universally

condemned.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). 

“Closing arguments traditionally have included appeals to emotion

. . . . The outer limit on emotional appeals is generally

stated as a prohibition against arguments calculated to inflame

the passions or prejudices of the jury.” United States v.

Nelson-Rodriguez, 319 F.3d 12, 39 (1st Cir. 2003) (internal

quotation marks omitted). The due process analysis for claims of

prosecutorial misconduct focuses on “the fairness of the trial,

not the culpability of the prosecutor.” Smith v. Phillips, 455

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8

U.S. 209, 219 (1982). Unless the trial was fundamentally unfair,

no due process violation occurred. Darden, 477 U.S. at 183. 

Pratt’s counsel objected before closing argument that the

prosecutor should be prevented from arguing that Pratt intended

to have sexual relations with Jamie. He contended Pratt’s sexual

intentions were irrelevant because Pratt was not charged with

attempted sexual assault and such intentions were not pertinent

to enticement or intent to conceal for proving interference with

custody. Pratt’s counsel also contended that such argument was

inflammatory. The judge, however, agreed with the prosecutor

that the government’s theory that Pratt intended to have sex with

Jamie was relevant to the government’s proof of enticement and

concealment, was supported by the evidence, and was appropriate

for closing argument. The record amply supports the prosecutor’s

theory and nothing suggests that the prosecutor’s theory of

Pratt’s motive, as expressed in his closing, so undermined the

fairness of the trial as to cause a due process violation. 

In his closing, the prosecutor said that Pratt enticed Jamie

away from home to come to Massachusetts with him “for his own

deviant purposes.” App. to Ans. at 266. He also said that Pratt

intended to conceal Jamie from her parents and that he was not

going to let them know that she was with him. The prosecutor

concluded: “He is as guilty as guilty gets. . . . Don’t let

this guy go on this charge. Don’t let him go.” Id.

Pratt asserts that the prosecutor’s remark that Pratt was

Case 1:05-cv-00191-JD Document 28 Filed 05/23/06 Page 8 of 25
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guilty violates due process. Courts have considered similar

remarks by prosecutors in closing argument and found no due

process violation. See, e.g., Darden, 477 U.S. at 181 n.12

(finding no unfairness where prosecutor repeatedly made

statements pertaining to guilt in closing, including that

defendant “shouldn’t be out of his cell unless he has a leash on

him,” that prosecutor wished victim “had blown [defendant’s] face

off,” and that prosecutor wished defendant had been killed);

Duckett v. Mullin, 306 F.3d 982, 990 (10th Cir. 2002) (denying

habeas relief despite prosecutor’s remark during closing: “‘The

evidence says he’s guilty. Don’t you be a party to turning a

cold-blooded murderer loose.’”); Mims v. Dipaolo, 2000 WL 50373,

at *3 (1st Cir. 2000) (unpublished decision) (citing cases and

finding no due process violation when prosecutor, in closing,

described victim’s screams without evidentiary basis and repeated

vile names used by defendant); United States v. Tipton, 964 F.2d

650, 656 (7th Cir. 1992) (“This court has refused to adopt a

defendant’s curious view that it is improper for the prosecution

to argue to the jury that defendant is guilty.”); Therrien v.

Vose, 782 F.2d 1, 4 (1st Cir. 1986) (finding no due process

violation in prosecutor’s statement during closing: “What we are

saying is we know [defendant] shot them.”). In addition, the

trial judge in Pratt’s case instructed the jury that their

verdict must be based on the evidence and that argument by the

lawyers in their closing statements was not evidence, which

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mitigated any unfair prejudice the prosecutor’s remarks might

have caused. See Darden, 477 U.S. at 182. 

2. Evidence of Prior Bad Acts

A writ of habeas corpus will not be granted based on a

violation of state evidentiary rules. Petrillo v. O’Neill, 428

F.3d 41, 44 (1st Cir. 2005). “To be a constitutional violation,

a state evidentiary error must so infuse the trial with

inflammatory prejudice that it renders a fair trial impossible.”

Id. at n.2. The Supreme Court has not decided whether improperly

admitted evidence of other bad acts would violate due process. 

Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003) (citing

Estelle v. McGuire, 502 U.S. 62, 75 (1991)); see also Torres v.

Runnels, 137 Fed. Appx. 96, 97 (9th Cir. 2005) (unpublished

decision); Johnson v. Greiner, 56 Fed. Appx. 38, 39 (2d Cir.

2003) (unpublished decision). Other courts have concluded that

improper use of evidence of prior bad acts infringes a

defendant’s due process rights, for purposes of habeas review,

only if such evidence was introduced without any legitimate

purpose or was so prejudicial as to make the trial fundamentally

unfair. See Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir.

1995); Poole v. Wood, 45 F.3d 246, 249 (8th Cir. 1995); Jervis v.

Hall, 622 F.2d 19, 21 (1st Cir. 1980); Holden v. Mechling, 2006

WL 758287, *6 (M.D. Pa. Mar. 22, 2006). 

Pratt objects to the evidence at trial that he gave Jamie

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beer at his apartment, contending that the evidence had no

legitimate purpose and was introduced only “to inflame the

passions and prejudices of the jury.” Obj. at 2. The prosecutor

introduced evidence that Pratt gave Jamie beer as part of the

state’s proof of enticement and to show that Pratt did not merely

intend to help a troubled teenager, as the defense contended.

To the extent Pratt also contends that the prosecutor improperly

introduced evidence that he kissed Jamie and suggested that they

have sex, that evidence also was relevant to the state’s proof of

Pratt’s motive to entice Jamie away and to conceal her from her

parents. Therefore, the challenged evidence was probative of

elements of the charged crime and was not unfairly prejudicial.

3. Publicity

Pratt asserts that during his criminal trial the prosecutor

“leaked” information to the media that resulted in prejudicial

stories published in several newspapers. He contends that those

“leaks” constituted prosecutorial misconduct. The warden points

out that the articles Pratt cites do not clearly indicate the

source of the information in the stories but suggest that the

reporters were merely repeating the prosecutor’s statements made

in court during the trial. The warden also contends that Pratt

lacks evidence that the newspaper stories constituted prejudicial

publicity or that the jurors were aware of them. 

Media publicity infringes the due process rights of the

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accused if it prejudices the jury. See Palmariello v. Supt. of

M.C.I. Norfolk, 873 F.2d 491, 495 (1st Cir. 1989). Prejudice is

not to be presumed absent extreme circumstances. Mu’min v.

Virginia, 500 U.S. 415, 428-29 (1991). Further, a prosecutor is

not responsible for media reports about a criminal trial unless

he has control over the content or timing of the article. See 

United States v. Coast of Me. Lobster Co., 538 F.2d 899, 901-02

(1st Cir. 1976).

The newspaper articles that Pratt quotes in support of his

claim of prejudicial publicity present the state’s view of the

case as the reporters heard it during trial. According to Pratt,

the Eagle Tribune article published on August 15, 2001, during

his trial, attributed its information about the case to the

prosecutor’s opening statement. The Boston Herald article

attributed its information to the prosecutor’s closing argument. 

The quote attributed to the prosecutor in the Eagle Tribune on

August 17, 2001, aired after the jury’s guilty verdict on August

16, 2001. Therefore, Pratt offers no support for his theory that

the prosecutor provided prejudicial pre-verdict information about

the case to the reporters. With respect to the juxtaposition of

an article about a kidnaping on Long Island with the story about

his case in the Boston Herald, Pratt does not suggest that the

prosecutor exerted any control over the newspaper’s format. The

publicity Pratt cites does not show or even suggest prosecutorial

misconduct. 

Case 1:05-cv-00191-JD Document 28 Filed 05/23/06 Page 12 of 25
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In addition, Pratt offers no evidence that the jury was

aware of the cited newspaper stories. He claims that his counsel

brought a copy of one of the newspapers to the court during trial

and that the newspaper stories generated comments on television

and in the newspapers. The circumstances of the publicity, as

Pratt describes them, do not support a presumption of prejudice,

and he fails to provide any evidence that his case was prejudiced

by the publicity he cites. 

4. Failed to Preserve Evidence

In support of his motion for a new trial, Pratt contended

that his criminal trial was tainted by prosecutorial misconduct

because the state failed to preserve evidence by allowing files

to be deleted from Jamie’s computer. The state’s failure to

preserve evidence that is potentially useful to the defense “does

not violate due process ‘unless a criminal defendant can show bad

faith on the part of the police.’” Illinois v. Fisher, 540 U.S.

544, 547 (2004) (quoting Arizona v. Youngblood, 488 U.S. 51, 58

(1988)). The good faith of the police is a complete defense

unless the government deliberately destroyed or altered

exculpatory evidence, that is if the evidence possessed “an

exculpatory value that was apparent before the evidence was

destroyed, and [was] of such a nature that the defendant would be

unable to obtain comparable evidence by other reasonably

available means.” DiBenedetto, 272 F.3d at 12-13; accord United

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States v. Garza, 435 F.3d 73, 75-76 (1st Cir. 2006).

Pratt charges that the police did not retrieve Jamie’s

computer from her family until twenty-eight days after he was

arrested and that during that intervening time, more than 100

files were deleted from the computer. Pratt suggests that

Jamie’s father, who is familiar with computers, could have

deleted the files. He faults the police for failing to take

possession of and protect the computer sooner. Although Pratt

states that the deleted files could have exonerated him, he

provides no insight into what he believes the files would have

shown. More importantly, Pratt does not have any evidence or

make any allegations that the police or the government knew the

files were exculpatory and were complicit in their destruction or

that the police acted in bad faith. Therefore, Pratt has not

shown a material factual issue that would avoid summary judgment.

5. Withheld Evidence

Pratt also contends that the prosecutor withheld exculpatory

evidence from him in violation of due process. Specifically,

Pratt alleges that the prosecutor failed to disclose Pratt’s own

telephone bills to him and failed to give him a copy of Jamie’s

parents’ marital settlement agreement. Prosecutorial misconduct

based on a claim of withheld evidence requires that “[t]he

evidence at issue must be favorable to the accused, either

because it is exculpatory, or because it is impeaching; that

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15

evidence must have been suppressed by the State, either willfully

or inadvertently; and prejudice must have ensued.” Banks v.

Dretke, 540 U.S. 668, 691 (2004). 

The prosecutor, of course, did not suppress evidence of

Pratt’s own telephone bills, which were his property and as

available to him as to the state. The state disclosed Jamie’s

parents’ marital settlement agreement on February 24, 2004, in

the context of Pratt’s motion for a new trial. Although Pratt

argues that the settlement agreement was material to his

jurisdictional claims and to a defense of impossibility, those

issues have been resolved against him with the benefit of the

settlement agreement in evidence. In addition, Pratt offers no

evidence that the government withheld the settlement agreement

either willfully or inadvertently. Therefore, that claim fails.

6. Fraud and Fabricated Victim Statements

Although Pratt charges that the prosecutor “committed fraud

on the tribunal in the presentation of evidence,” it is not clear

what evidence Pratt asserts was fraudulent. In his response to

the warden’s motion for summary judgment, Pratt states: 

“Testimony of ‘having actual sex’ [] was not only inadmissible

[], but was fabricated.” In support of that statement, Pratt

cites to the prosecutor’s argument to the judge in opposition to

the defense’s motion for a directed verdict and to Jamie’s

testimony about Pratt’s sexual overtures to her. 

Case 1:05-cv-00191-JD Document 28 Filed 05/23/06 Page 15 of 25
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A prosecutor’s knowing use of perjury to obtain a conviction

is a due process violation. Moreno Morales, 334 F.3d at 148. In

this case, however, Pratt has not provided any evidence of false

testimony, much less that the prosecutor knowingly used perjury

to obtain his conviction. Therefore, Pratt has failed to

properly oppose summary judgment on that claim.

Pratt also contends that the prosecutor introduced

fabricated victim impact statements during his sentencing

proceeding. A sentence that is based on misinformation of a

constitutional magnitude, meaning materially untrue information

on which the sentencing court relied, is a violation of due

process. See United States v. Tucker, 404 U.S. 443, 447 (1972);

Townsend v. Burke, 334 U.S. 736, 741 (1948); Lechner v. Frank,

341 F.3d 635, 638-39 (7th Cir. 2003); McPhail v. Renico, 412 F.

Supp. 2d 647, 653-54 (E.D. Mich. 2006). Pratt provides no

evidentiary support for his claim that the challenged victim

impact statements were fabricated and bases his claim on only his

“information and belief.” That is insufficient to oppose summary

judgment. Fed. R. Civ. P. 56(e); Perez v. Volvo Car Corp., 247

F.3d 303, 315 (1st Cir. 2001).

7. Insufficient Evidence

Pratt has raised the issue of insufficiency of the evidence

in several different contexts: on direct appeal following his

conviction; as a claim of ineffective assistance of counsel in

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support of his motion for a new trial, and as a claim of

prosecutorial misconduct here. The New Hampshire Supreme Court

ruled that the evidence presented at Pratt’s criminal trial was

sufficient to convict him. State v. Pratt, Case No. 2001-748

(N.H. Nov. 6, 2002) (unpublished decision). The state court

ruled on the issue in the context of an ineffective assistance of

counsel claim in Pratt’s motion for a new trial, concluding that

the evidence was sufficient to prove beyond a reasonable doubt

that Pratt interfered with the custody of both Jamie’s mother and

father, and counsel was not deficient in failing to raise that

issue. 

In denying Pratt’s ineffective assistance of counsel claim

in the prior order, this court ruled that Pratt failed to show

that the state court’s decision was erroneous, much less an

unreasonable application of federal law. Although the claim now

appears in the guise of prosecutorial misconduct, the result is

the same. Pratt has not shown any material dispute as to whether

the evidence was sufficient to support his conviction, and

summary judgment is appropriate as to that claim.

B. Impartial Decision Maker

Pratt contends that the judge at his criminal trial was

biased against him. He supports that claim with references to

the judge’s unfavorable rulings and alleged errors during the

criminal proceedings. A judge’s rulings, statements, errors, and

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misjudgments in the course of a trial that “‘neither . . . relied

upon knowledge acquired outside such proceedings nor . . .

displayed deep-seated and unequivocal antagonism that would

render fair judgment impossible’” are insufficient to show bias

or prejudice. In re United States, 441 F.3d 44, 67 (1st Cir.

2006) (quoting Liteky v. United States, 510 U.S. 540, 553 n.2

(1994)). The rulings and statements Pratt cites do not

demonstrate bias of any kind. Therefore, the warden is entitled

to summary judgment on Pratt’s claim of judicial bias.

C. Ineffective Assistance of Counsel

In addition to the ineffective assistance of counsel claims

that were resolved in favor of the warden in the court’s previous

order, Pratt alleges a host of additional ineffective assistance

claims arising from his representation during trial and on

appeal. Pratt faults his trial counsel for failing to call his

roommate, Jasper Tisdale, as a witness; failing to call an expert

witness; failing to object to prosecutorial misconduct, including

the prosecutor’s opening and closing statements; failing to file

unspecified motions in limine; failing to move to suppress

unspecified illegally obtained evidence; failing “to object to

the specificity in the indictment”; failing to propose proper

jury instructions and failing to object to the jury instructions

that were given; failing to raise and preserve unspecified issues

for appeal; failing to investigate; failing to know the

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applicable law; making “illogical and incomprehensible remarks on

the record”; failing to cross examine unspecified witnesses;

failing to “meaningfully challenge the State’s case against

petitioner”; failing to advocate zealously on his behalf, and

failing to object to “variance between the indictment and the

evidence presented at trial.” Pratt asserts that his appellate

counsel “failed to know the law and omitted significant and

obvious State law issues,” failed to raise meritorious issues on

appeal, and failed “to brief hearsay claim.” 

Claims of ineffective assistance of counsel are examined

under a two-pronged test, asking first whether counsel’s

“representation fell below an objective standard of

reasonableness,” and, if so, whether there was "a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Strickland

v. Washington, 466 U.S. 668, 688 (1984); accord Smiley v.

Mahoney, 422 F.3d 17, 20 (1st Cir. 2005). “Under the first prong

of Strickland, there is a ‘strong presumption’ that counsel’s

strategy and tactics fall ‘within the range of reasonable

professional assistance,’ and courts should avoid second-guessing

counsel’s performance with the use of hindsight.” Knight, 2006

WL 1148484, at *8. “‘A reasonable probability is a probability

sufficient to undermine confidence in the outcome.’” Smiley, 422

F.3d at 20 (quoting Strickland, 466 U.S. at 694).

Most of Pratt’s ineffective assistance of counsel claims

Case 1:05-cv-00191-JD Document 28 Filed 05/23/06 Page 19 of 25
2To the extent Pratt argues he was charged with interference

with custody but was tried for sexual assault, that claim is not

properly developed and is not supported by the record. As is

noted above, the evidence of his sexual overtures toward Jamie

was admissible to prove his motive and the element of enticement.

20

merely state general complaints without any specific development

of the claim in the context of his case. The absence of specific

facts to support those claims prevents the court from applying

the two-prong analysis that is necessary for evaluating an

ineffective assistance of counsel claim. In addition, the nonmoving party cannot oppose summary judgment based “merely upon

conclusory allegations, improbable inferences, and unsupported

speculation.” Forestier Fradera v. Municipality of Mayaguez, 440

F.3d 17, 21 (1st Cir. 2006) (internal quotation marks omitted). 

Therefore, the warden’s motion for summary judgment is

granted as to Pratt’s claims that his counsel’s failed to file

unspecified motions in limine, failed to move to suppress

unspecified illegally obtained evidence, failed to propose or

object to unspecified jury instructions, failed to object to the

indictment on unspecified grounds, failed to raise and preserve

unspecified issues for appeal, failed to investigate, failed to

challenge the state’s case, failed to object to an alleged

variance between the indictment and the evidence at trial,2

failed to present a proper closing argument, and any other

generic claims. Similarly, Pratt’s claims based on his appellate

counsel’s representation are too general to survive summary

judgment. The remainder of his claims are addressed as follows.

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1. Jasper Tisdale

Pratt contends that his counsel was constitutionally

ineffective because he did not call his roommate, Jasper Tisdale,

to testify at trial. Pratt contends that Tisdale would have

testified that Pratt called him, while Jamie was in the car, and

told him that Jamie was fifteen or sixteen. He theorizes that

Tisdale’s testimony would have undermined Jamie’s testimony that

Pratt told her to tell Tisdale she was eighteen. 

Jamie was fourteen at the time of the incident with Pratt,

and she testified that she told Pratt she was fourteen before she

met him, and before he drove her to his apartment when he talked

with Tisdale. Despite that knowledge, Pratt asserts that he told

Tisdale Jamie was fifteen or sixteen. Although testimony that

Pratt told Tisdale Jamie was younger than eighteen might have

raised some question about why he would instruct Jamie to tell

Tisdale she was eighteen, it would also show that Pratt lied to

Tisdale about her age. Given the mixed consequences of that

testimony and the strong presumption that counsel would make that

choice for tactical reasons rather than through neglect,

counsel’s failure to call Tisdale as a witness was not

constitutionally deficient representation. See Knight, 2006 WL

1148484, at *10.

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2. Expert Witness

Pratt contends that his counsel should have consulted with

an expert about the information the state retrieved from Jamie’s

computer. He believes that an expert “would have provided

testimony on the mumbojumbo from the computer” that would have

undermined the state’s evidence. Pratt has not developed that

claim, however, to explain what an expert would have provided

that would have helped the defense. Cf. Dugas v. Coplan, 428

F.3d 317, 327-32 (1st Cir. 2005). In addition, the computer

evidence was not pivotal to the defense theory in Pratt’s case,

particularly in light of Jamie’s testimony and the testimony of

her step sister and the police officers. Cf. id. In the absence

of any properly supported theory that a computer expert would

have been beneficial to his case, this claim fails. See Neverson

v. Farquharson, 366 F.3d 32, 45 (1st Cir. 2004).

3. Prosecutorial Misconduct

Pratt faults his counsel for failing to object to the

alleged prosecutorial misconduct that he also raised, separately,

in support of habeas relief. Contrary to Pratt’s view, counsel

did object to several of the challenged incidents. In addition,

because the incidents and circumstances Pratt cites did not

amount to prosecutorial misconduct, counsel’s failure to object

was not constitutionally deficient representation. 

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4. Zealous Advocate

A criminal defendant is entitled to have counsel who

provides effective assistance on his behalf in the adversarial

process and who adequately presents his nonfrivolous claims on

appeal. Strickland, 466 U.S. at 686-87; Smith v. Robbins, 528

U.S. 259, 278-79 (2000). In support of his claim that his

counsel failed to advocate for him, Pratt contends that his

counsel constructively withdrew from representing him, and he

cites a list of his counsel’s statements that he believes were

illogical, incomprehensible, or demonstrated paranoia toward the

court, criticizes his counsel’s cross examination of the state’s

witnesses, and faults him for not cross examining two police

officer witnesses.

Counsel is deemed to have withdrawn from representing a

criminal defendant if “counsel fails meaningfully to oppose the

prosecution’s case.” Florida v. Nixon, 543 U.S. 175, 178 (2004)

(citing United States v. Cronic, 466 U.S. 648, 659 (1984)). In

that case, prejudice to the defendant is presumed. Cronic, 466

U.S. 658-59. A finding that counsel abandoned his client and

provided no representation at all is reserved for the most

extreme cases. United States v. Theodore, 354 F.3d 1, 7 (1st

Cir. 2003).

Neither trial counsel nor appellate counsel in Pratt’s case

constructively withdrew from representation. The court has

reviewed the cited remarks, challenged cross examinations, and

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the lack of cross examination of the police officers and finds no

deficiencies, much less deficiency of a constitutional magnitude.

Appellate counsel filed the appropriate papers on appeal, and

Pratt’s general challenge that appellate counsel failed to raise

other unspecified meritorious issues does not present a material

issue as to that representation. Therefore, the warden is

entitled to summary judgment on this claim.

5. Familiarity with Applicable Law

Because the New Hampshire Supreme Court held that

enticement, rather than concealing, is the culpable act for

proving a charge of interference with custody, Pratt faults his

counsel, at trial and on appeal, for focusing on his intent, or

lack thereof, to conceal Jamie. He contends that counsel was

unfamiliar with the applicable law. This claim is the same as or

at least closely related to Pratt’s claim that counsel was

ineffective because he focused on intent to conceal rather than

on enticement. That claim was resolved against Pratt, and the

same reasoning applies. 

Counsel’s choice to focus the defense on evidence of the

intent to conceal, rather than on enticement, does not

demonstrate ignorance of the applicable law. Given the state’s

evidence of Pratt’s efforts to entice Jamie away from home and

the strong presumption that counsel would choose to pursue the

intent issue for tactical reasons rather than through neglect,

Case 1:05-cv-00191-JD Document 28 Filed 05/23/06 Page 24 of 25
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counsel’s choice does not demonstrate a failure to know the

applicable law and was not constitutionally deficient

representation. See Knight, 2006 WL 1148484, at *10. Therefore,

the warden is entitled to summary judgment on this claim.

Conclusion

For the foregoing reasons, the warden’s second motion for

summary judgment (document no. 26) is granted. As all of Pratt’s

claims in support of his petition for a writ of habeas corpus

have been resolved against him, the clerk of court shall enter

judgment accordingly and close the case.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

May 23, 2006

cc: Harvey Pratt, pro se

Nicholas P. Cort, Esquire

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