UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Troy Zwicker

v. Civil No. 05-cv-233-JD

Warden, New Hampshire State Prison

REPORT AND RECOMMENDATION

Pro se petitioner Troy Zwicker has filed a petition for a

writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in which he

challenges the constitutionality of his state court conviction

and confinement (document no. 1). The petition is before me for

preliminary review. See Rule 4 of the Rules Governing § 2254

Proceedings (“Habeas Rules”) (requiring initial review to

determine whether petition is facially valid and may be served);

see also United States District Court for the District of New

Hampshire Local Rules 4.3(d) (authorizing the magistrate judge to

preliminarily review pro se pleadings).

For the reasons stated below, I recommend that the petition

be served on the respondent but only as to three claims (Grounds

Two, Three and Six). The remaining claims (Grounds One, Four and

Five) fail to state constitutional claims upon which habeas

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corpus relief may be granted, therefore, I recommend they be

dismissed. 

Background

After his first two trials ended in mistrials, Zwicker was

convicted in the New Hampshire Superior Court (Coos County) of

possession of one ounce or more but less than five pounds of

marijuana with intent to sell or distribute and possession of

crack cocaine. He is currently incarcerated at the New Hampshire

State Prison (“NHPS”). He filed an appeal with the New Hampshire

Supreme Court and presented the following claims: 

(1) the trial court erred in denying

Zwicker’s motion to suppress evidence seized

pursuant to a search warrant; he further

attacked the informant’s reliability and the

credibility and staleness of the information

they provided;

(2) Zwicker’s Miranda rights were violated

when police officers failed to honor his

invocation of the Fifth Amendment right to

remain silent;

(3) in the first and second trials, two

police officers intentionally tried to

introduce prejudicial evidence, thereby

violating Zwicker’s right to protection

against double jeopardy;

(4) during jury deliberations, the trial

court erred in answering the following

question affirmatively: whether the

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1“Shake” is defined as “remnants of processing” marijuana. 

State v. Zwicker, 151 N.H. 179, 189, 855 A.2d 415, 425 (2004).

3

possession of “shake”1 that is non-saleable

constitutes possession with intent to

distribute;

(5) the trial court erred in ordering Zwicker to

provide the State with a summary of testimony that he

expected to elicit from two witnesses; he further

claimed that the court ordered defense counsel to

reproduce a summary of witness interviews that

reflected mental impressions and theories of defense,

thereby violating the work-product doctrine;

 

(6) Zwicker’s right to a speedy trial was violated

when he was subjected to a three-year delay, presumably

from the date of indictment to the date of his third

trial.

By decision of June 29, 2004, the New Hampshire Supreme

Court denied his appeal and affirmed his conviction. Although

Zwicker has not provided any pleadings relevant to his state

court proceedings, he has attached a copy of the New Hampshire

Supreme Court decision denying his appeal. Id. He now brings

the instant petition for a writ of habeas corpus challenging the

constitutionality of his conviction and confinement on the six

grounds identical to those raised in his state court appeal.

Standard of Review

In reviewing a pro se petition, this court must construe the

pleadings liberally and in favor of the pro se litigant. See

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Ayala Serrano v. Gonzalez, 909 F.2d 8, 15 (1st Cir. 1990)

(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)). At this

preliminary stage of review, all factual assertions made by a

petitioner and the inferences reasonably drawn therefrom must be

accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3 (1st

Cir. 1996)(explaining that all “well-pleaded factual averments,”

not bald assertions, must be accepted as true). This review

ensures that pro se pleadings are given fair and meaningful

consideration. See Eveland v. Director of CIA, 843 F.2d 46, 49

(1st Cir. 1988).

Discussion

I. Custody and Exhaustion

To be eligible for habeas relief, a petitioner must show

that he is in custody and has exhausted all state court remedies

(or that he falls within a narrow category of cases in which

exhaustion is not required, such as the absence of an available

or effective state corrective process). See 28 U.S.C. § 2254(a)

& (b). Zwicker satisfies the custody requirement as he is

currently incarcerated at the NHSP. For the reasons discussed

below, he satisfies the exhaustion requirement but only as to

three claims.

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“Barring certain exceptional circumstances not present here,

a habeas petitioner in state custody may not advance his or her

constitutional claims in a federal forum unless and until the

substance of those claims has been fairly presented to the

state’s highest court.” Barresi v. Maloney, 296 F.3d 48, 51 (1st

Cir. 2002). The exhaustion requirement, codified at 28 U.S.C. §§

2254(b) & (c), embodies principles of federal-state comity and is

designed to provide state courts with an initial opportunity to

pass upon and correct alleged violations of a prisoner’s federal

rights. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)

(exhaustion doctrine designed to give state courts full and fair

opportunity to resolve federal constitutional claims before those

claims are presented to federal courts); accord Duncan v. Henry,

513 U.S. 364, 365-66 (1995); Picard v. Connor, 404 U.S. 270, 275-

76 (1971).

“To provide the State with the necessary ‘opportunity,’ the

prisoner must ‘fairly present’ his claim in each appropriate

state court (including a state supreme court with powers of

discretionary review), thereby alerting that court to the federal

nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004)

(holding that a state prisoner does not “fairly present” a

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federal claim to a state court if that court must read beyond a

petition, brief or similar document that does not alert it to the

presence of a federal claim). Thus, if Zwicker has failed to

adequately present his federal constitutional claim to the New

Hampshire Supreme Court, he is precluded from seeking relief in

federal court.

Should a petitioner demonstrate that a procedural default or

an adverse party’s noncompliance with court rules prevented state

court review of his unexhausted claims and this resulted in

prejudice, a valid cause for nonexhaustion may exist, and his

claims may be considered. See Hall v. DiPaolo, 986 F.2d 7, 10

(1st Cir. 1993). See also Horton v. Allen, 370 F.3d 75, 81 (1st

Cir. 2004). Under the “cause and prejudice” standard, a valid

cause generally must be an external factor that hindered the

petitioner’s attempts to comply with the procedural rule. See

Murray v. Carrier, 477 U.S. 478, 488 (1986). See also Horton,

370 F.3d at 81 (citing Dretke v. Haley, 541 U.S. 386, 391-92

(2004) and Coleman v. Thompson, 501 U.S. 722, 750 (1991)).

II. Habeas Corpus Claims

Construed liberally, Zwicker’s petition alleges the

following six grounds for habeas corpus relief:

(1) the trial court failed to suppress

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evidence seized pursuant to a search warrant;

Zwicker further attacks the informant’s

reliability and the credibility and staleness

of the information they provided (Ground

One);

(2) the arresting police officers continued

to question Zwicker after he invoked his

Miranda rights, thereby violating his Fifth

Amendment right to remain silent (Ground

Two);

(3) Zwicker’s right to protection against

double jeopardy was violated when he was

tried on three separate occasions for the

same offense, allegedly as the result of

prosecutorial misconduct in allowing

prejudicial testimony by State witnesses

(Ground Three);

(4) the trial court erred during jury

deliberations by answering the following

question affirmatively: whether the

possession of “shake” that is non-saleable

constitutes possession with intent to

distribute (Ground Four);

(5) the trial court erred in ordering

Zwicker to provide the State with a summary

of testimony he expected to elicit from two

witnesses; the trial court further erred by

ordering defense counsel to reproduce a

summary of witness interviews that reflected

mental impressions and theories of defense,

thereby violating the work-product doctrine

(Ground Five);

 

(6) Zwicker’s right to a speedy trial was

violated when he was subjected to a threeyear delay, presumably from the date of

indictment to the date of his third trial

(Ground Six).

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For the reasons stated below, I conclude that three claims

(Grounds Two, Three and Six) are identical to those raised in

Zwicker’s appeal to the New Hampshire Supreme Court and therefore

appear to be exhausted. The remaining claims (Grounds One, Four

and Five) are not cognizable for purposes of federal habeas

review.

A. Cognizable Claims

1. Ground Two

Ground Two alleges that after Zwicker invoked his Miranda

rights, the arresting police officers continued to question him

in violation of his right to remain silent. See Miranda v.

Arizona, 384 U.S. 436 (1966) (holding that police officers must

inform a suspect of his Fifth Amendment privilege against selfincrimination prior to initiating a custodial interrogation). 

Without commenting on the merits of the claim, I conclude that

Zwicker has alleged sufficient facts to state a Fifth Amendment

claim for purposes of preliminary review. 

2. Ground Three

Ground Three alleges that Zwicker was tried on three

occasions for the same offense in violation of his Fifth

Amendment right of protection against double jeopardy. He

allegedly was retried as a result of prosecutorial misconduct in

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allowing prejudicial testimony by State witnesses. In his state

court appeal, Zwicker argued that the trial court should have

granted his motion for a mistrial with prejudice because

prosecutorial or judicial overreaching was sufficient to bar

reprosecution.

The Double Jeopardy Clause of the Fifth Amendment protects a

defendant in a criminal proceeding against repeated prosecutions

for the same offense. See United States v. Dinitz, 424 U.S. 600,

606, (1976)). “However, the Double Jeopardy Clause is not an

absolute bar to successive trials. The protection embodied in

the Double Jeopardy Clause is a personal defense that may be

waived or foreclosed by a defendant’s voluntary actions,

including a request for, or effectual consent to, a mistrial.” 

See United States v. Newton, 327 F.3d 17, 21 (1st Cir. 2003)

(citations omitted). Where a retrial follows the declaration of

a mistrial, “the key question for double jeopardy purposes is

whether the mistrial was declared with the defendant’s consent.” 

Id. The only circumstance in which a defendant’s consent to

mistrial does not operate as a waiver of his right to claim

double jeopardy is where the prosecutor or judge “intentionally

provokes the defendant to request the mistrial. . .” Id.

Zwicker has alleged that the prosecutor intentionally

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2In his state court appeal, Zwicker argued that the trial

court erred in denying his motion for a directed verdict of not

10

allowed prejudicial testimony by certain State witnesses. To the

extent he alleges that the prosecutor’s misconduct provoked his

request for a mistrial, I conclude that he has alleged the

minimal facts necessary to implicate the Double Jeopardy Clause. 

3. Ground Six

Construed liberally, Ground Six alleges that Zwicker was

denied his Sixth Amendment right to a speedy trial (Ground

Three). See Barker v. Wingo 407 U.S. 514, 530 (1972)(adopting

balancing test for Sixth Amendment speedy trial claim and

requiring habeas petitioner to show prejudice). Because Zwicker

has cited to the Sixth Amendment in his state court appeal and

appears to allege that the delay in trial was prejudicial, I

liberally construe his claim to allege a Sixth Amendment speedy

trial violation. To the extent he alleges a speedy trial

violation based on state law, however, his claim is not

cognizable under federal habeas review. See Davis v. Green, No.

Civ. A. RDB-05-390, 2005 WL: 1126843 at *3 (D. Md. May 12,

2005)(speedy trial argument based on state law not cognizable on

federal habeas review); accord Walton v. McKee, No. Civ. 04-CV73695-DT, 2005 WL 1343060 at *2 (E.D. Mich. June 1, 2005).2

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guilty and that his rights were violated by the State’s purported

misconduct during trial. The New Hampshire Supreme Court held

that his arguments were not properly preserved for appellate

review. Therefore Zwicker’s claims may be procedurally defaulted

for purposes of federal habeas review.

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Because the above three claims are identical to those raised

in Zwicker’s appeal to the New Hampshire Supreme Court, I

conclude that he has demonstrated exhaustion of the claims for

purposes of federal habeas review. Accordingly, by order issued

simultaneously herewith, I recommend that Grounds Two, Three and

Six be served on the respondent.

B. Noncognizable Claims

1. Ground One

In Ground One, Zwicker alleges that the trial court failed

to suppress evidence seized pursuant to a search warrant in

violation of his Fourth Amendment rights. He further attacks the

reliability and credibility of the informants and the staleness

of the information they provided.

Habeas corpus relief is not available on a Fourth Amendment

claim where the petitioner had a full and fair opportunity to

raise the claim in state court. See Stone v. Powell, 428 U.S.

465, 494 (1976) (“[W]here the State has provided an opportunity

for full and fair litigation of a Fourth Amendment claim, a state

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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.”); accord Gandarilla v.

Artuz, 322 F.3d 182, 185 (2d Cir. 2003)(“[T]he merits of a Fourth

Amendment challenge are not reviewable in a federal habeas corpus

proceeding if a defendant has had a full and fair opportunity to

litigate that question in State court. . .”).

The record reveals that Zwicker had a full and fair

opportunity to raise his Fourth Amendment claim in his state

court proceedings. In reviewing his appeal, the New Hampshire

Supreme Court concluded that there was probable cause to issue

the search warrant and that the trial court correctly denied

Zwicker’s motion to suppress the evidence seized pursuant to the

search warrant. Thus, the state corrective process was not only

available but was employed for his Fourth Amendment claim. 

Because Zwicker’s Fourth Amendment claim is not reviewable in

habeas corpus, I recommend that it be dismissed. See Cabrera v.

Hinsley, 324 F.3d 527, 530-31 (7th Cir. 2003) (petitioner may not

be granted federal habeas corpus relief on ground that evidence

was obtained in an unconstitutional search and seizure where

State provided an opportunity for full and fair litigation of

Fourth Amendment claim); Graham v. Costello, 299 F.3d 129, 131

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(2d Cir. 2002)(same); Castillo v. Miller, No. 04 Civ. 6157 (GEL),

2005 WL 1036346, at *4 (S.D.N.Y. May 4, 20050) (state court

determination that search warrant was supported by probable cause

may not be challenged in federal habeas corpus where the State

has provided an opportunity for full and fair litigation of

petitioner’s Fourth Amendment claim).

2. Ground Four

Ground Four alleges that the trial court erred during jury

deliberations by answering the following question affirmatively:

whether the possession of “shake” that is non-saleable

constitutes possession with intent to distribute.

It is well-established that “[a] federal court may not issue

the writ on the basis of a perceived error of state law.” Pulley

v. Harris, 465 U.S. 37, 41 (1984). Rather, in conducting habeas

review, a federal court is limited to deciding whether a

conviction violated the Constitution, laws or treaties of the

United States. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)

(holding that “it is not the province of a federal habeas court

to reexamine state-court determinations on state-law

questions.”). Moreover, “‘[a]s a general rule, errors in jury

instructions in a state criminal trial are not reviewable in

federal habeas corpus proceedings, unless they are so

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fundamentally unfair as to deprive petitioner of a fair trial and

to due process of law.’” Tyler v. Nelson, 163 F.3d 1222, 1227

(10th Cir. 1999)(quoting Nguyen v. Reynolds, 131 F.3d 1340, 1357

(10th Cir. 1997). Thus, Zwicker’s burden of demonstrating the

erroneous instruction was so prejudicial as to support a

collateral attack “is even greater than the showing required to

establish plain error on direct appeal.” Henderson v. Kibbe, 431

U.S. 145, 154 (1977). 

In Ground Four of the petition, Zwicker merely challenges

the trial court’s affirmative answer to a question posed by the

jury. There is no indication that the alleged error was not one

of state law. Nor has Zwicker alleged that the trial court’s

affirmative answer to the jury question has abridged his

constitutional right to a fair trial or due process of law. 

Accordingly, I conclude that Ground Four of the petition is not

cognizable on federal habeas review and recommend that it be

dismissed.

3. Ground Five

Ground Five alleges that the trial court erred in ordering

Zwicker to provide the State with a summary of testimony he

expected to elicit from two witnesses. The trial court allegedly

further erred by ordering defense counsel to reproduce a summary

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of witness interviews that reflected mental impressions and

theories of defense, thereby violating the work-product doctrine.

To the extent Zwicker bases his claim on the work-product

doctrine or attorney-client privilege, his claim is not

cognizable on federal habeas review. See Lange v. Young, 869

F.2d 1008, 1012 n.2 (7th Cir. 1989) (“The attorney-client

privilege is a creation of the common law, not the Constitution,”

and thus a violation of the privilege alone is insufficient

grounds for habeas relief); accord Smith v. Moore, 137 F.3d 808,

819-20 (4th Cir. 1998). See also, In re Novak, 932 F.2d 1397,

1402 n.7 (11th Cir. 1991) (attorney-client privilege and attorney

work-product doctrine are rights or privileges not grounded in

the Constitution); Bradt v. Smith, 634 F.2d 796, 799-800 (5th

Cir. 1981)(immunity accorded to attorney’s work product is a

creature of state law and not a right, privilege or immunity

secured by the Constitution or laws of the United States). 

“Because federal habeas review is limited to ‘violations of the

United States Constitution or its law and treaties,’ a mere

violation of [Zwicker’s] attorney-client [or work-product]

privilege would not warrant habeas relief.” Smith, 137 F.3d at 

819 (citations omitted). Accordingly, I conclude that Ground

Five fails to state a cognizable claim for purposes of federal

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habeas review and recommend that it be dismissed. 

Conclusion

For the reasons stated above, I order the petition served on

the respondent but only as to three claims (Grounds Two, Three

and Six). The remaining claims (Grounds One, Four and Five) fail

to state constitutional claims upon which habeas corpus relief

may be granted, therefore, I recommend they be dismissed.

If this recommendation is approved, the claims as identified

in this report and recommendation, will be considered for all

purposes to be the claims raised in the complaint. If petitioner

disagrees with the identification of the claims herein, he must

do so by objection filed within ten (10) days of receipt of this

report and recommendation, or he must properly move to amend. 

Any further objection to this report and recommendation must

be filed within ten (10) days of receipt of this notice. Failure

to file objections within the specified time waives the right to

appeal the district court’s order. See 28 U.S.C. § 636(b)(1);

see also Unauthorized Practice of Law Committee v. Gordon, 979

F.2d 11, 13-14 (1st Cir. 1992); United States v. Valencia-Copete,

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792 F.2d 4, 6 (1st Cir. 1986).

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: August 4, 2005

cc: Troy Zwicker, pro se

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