UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

David Burns

v. Civil No. 06-cv-131-PB

Richard M. Gerry, Warden,

New Hampshire State Prison

REPORT AND RECOMMENDATION

David Burns, an inmate at the New Hampshire State Prison, 

has filed a petition for a writ of habeas corpus, pursuant to 28 

U.S.C. § 2254, in which he asserts that his convictions were 

obtained in violation of his right to due process under the 

Fourteenth Amendment, his right to counsel under the Sixth and 

Fourteenth Amendments, and his Fourteenth Amendment rights under 

Miranda v. Arizona, 384 U.S. 436 (1966). Before the court is 

the respondent Warden’s motion for summary judgment (doc. no. 

33) and Burns’s objection (doc. no. 44). The court has referred 

the motion to the magistrate judge to issue proposed findings of 

fact and a recommendation regarding its disposition, and to hold 

an evidentiary hearing, if necessary. See U.S. Dist. Ct., 

D.N.H., Admin. Ord. No. 10-5 (June 25, 2010), superseded by 

Local Rule (“LR”) 72.1 (eff. Dec. 1, 2011) (“Admin. Ord. No. 10-

5”); see also 28 U.S.C. § 636(b)(1)(B); Rule 8(b) of the Rules 

Governing Section 2254 Cases in the United States District 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 1 of 44
2

Courts (“§ 2254 Rules”). For the reasons that follow, the 

Warden’s motion (doc. no. 33) should be granted, and the § 2254 

petition denied, without a hearing. 

Background

This case arises from Burns’s conviction on charges 

relating to his use of a curtain valence in an attempt to 

strangle his girlfriend in Kingston, New Hampshire, in September 

2002. Burns was tried before a jury in January 2004. 

The evidence before the jury included Burns’s statements to 

the police, admitted after the superior court had denied a 

pretrial motion to suppress, as well as the testimony of the 

victim, Dena Bouzianis, the investigating officers, and the 

emergency department physician who treated Bouzianis. 

Bouzianis testified that she and Burns were involved in a 

relationship, that Burns often slept over, that he used crack 

cocaine, and that he was jealous and insecure in their 

relationship. She further testified that at about 3:00 a.m. on 

September 8, 2002, she woke up to find out that Burns was 

neither in bed nor in the house. When Burns came back, 

according to Bouzianis, he confronted her and asked her whom she 

had been sleeping with. She testified that she accused him of 

being high, and then went back to bed. At that point, according 

to Bouzianis’s testimony, Burns straddled Bouzianis, started to 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 2 of 44
3

strangle her with his hands, then flipped her over, grabbed a 

curtain valence, and wrapped it around her neck. Bouzianis 

testified that Burns told her not to lie to him, and that he 

would kill her and then himself. She testified that she could 

barely talk, but pleaded with him to stop. She estimated at 

trial that the attack lasted about thirty minutes, and that 

towards the end of the ordeal, Burns choked her such that she 

lost consciousness. 

Bouzianis testified that when she came to, she could not 

focus and was confused, but was able to talk with Burns to calm 

him down. Bouzianis testified that she waited until Burns was 

almost asleep, and then ran outside to her mother’s house two 

houses away. She testified that once there, she called 911. 

The police arrived. Bouzianis went to the emergency department

with her mother, and the emergency department physician 

testified that Bouzianis had bilateral hemorrhaging in her eyes, 

bruising around her neck, and petechial hemorrhages in her 

throat, consistent with having a ligature like the curtain 

valence pulled tightly around her neck. 

After Burns came out of Bouzianis’s house, the Kingston 

Police Department arrested and handcuffed Burns, and brought him

to the Kingston Police Department. Kingston Police Officer 

Peterson testified that he read Burns a Miranda warning at the 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 3 of 44
4

police station, and that Burns understood what was said to him 

and spoke in a logical, coherent way. 

State Police Trooper Martin testified that he interviewed 

Burns for about three hours, in a relaxed and conversational 

manner, after first ascertaining that Peterson had read Burns 

his Miranda rights. Martin testified that Burns was upset

during the interview, but also appeared to understand Martin. 

According to Martin, Burns admitted that he had gotten “high” 

that night, and, when Martin told Burns that he did not believe 

Burns’s initial story that Bouzianis had tried to hang herself, 

Burns told Martin that he had not been telling the truth, that 

he was “not innocent,” and wanted help. Burns became upset and 

cried, according to Martin, while saying that he did not deserve 

to live, that he was ashamed for his daughters, and that he had 

“put that thing around [Bouzianis’s] neck,” not to kill her, but 

only to scare her. Martin testified that Burns refused to 

provide a written statement, but agreed to review Martin’s notes 

and to sign them.

Bouzianis testified that after Burns had been arrested, he 

contacted her on several occasions. She further testified that 

Burns tried to get her to lie to the police about the cause of 

her injuries. 

The jury convicted Burns after a three day trial. Burns, 

acting pro se, filed a motion to dismiss his trial counsel prior 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 4 of 44
5

to the sentencing hearing, asserting claims of ineffective 

assistance of counsel. The superior court denied that motion 

and sentenced Burns to state prison in 2004. The New Hampshire 

Supreme Court (“NHSC”) affirmed Burns’s convictions. See State 

v. Burns, No. 2004-0533 (N.H. June 22, 2005).

Burns filed the instant petition for federal habeas relief 

in 2006, shortly before filing a motion for a new trial in state 

superior court. The superior court judge who presided at 

Burns’s trial denied the motion for a new trial after a hearing. 

The NHSC declined to accept Burns’s application for 

discretionary review of that order, without commenting on the 

merits of the superior court’s ruling. See State v. Burns, No. 

02-S-2540 (N.H. Super. Ct., Rockingham Cnty., June 9, 2008) 

(“Super. Ct. Ord.”), appeal declined, No. 2008-0493 (N.H. Aug. 

14, 2008). This court stayed Burns’s § 2254 petition while he 

pursued additional state court remedies on claims not relevant 

to the matters before this court. 

This court lifted the stay after Burns notified the court 

that he had exhausted his state court remedies, see Status 

Report (doc. no. 21). On May 27, 2010, see Order (doc. no. 28), 

the court ordered the following claims served upon the 

respondent:

 The trial court, in denying Burns’s motion to suppress 

statements he made during a custodial interrogation, 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 5 of 44
6

erred in finding that Burns validly waived his rights 

under Miranda v. Arizona, 384 U.S. 436 (1966).

 Burns’s convictions were obtained in violation of his 

Fourteenth Amendment right to due process because the 

trial judge interviewed a juror off the record, without 

counsel present, to determine if the juror’s unauthorized 

contact with a police officer mid-trial had biased the 

juror. 

 The state interfered with Burns’s Sixth and Fourteenth 

Amendment right to counsel of his own choosing by 

threatening that Burns would be subjected to charges 

stemming from his misuse of his daughter’s trust funds to 

pay his private defense counsel’s retainer, by 

recommending that private defense counsel withdraw, and 

by filing a motion to clarify defense counsel’s status, 

which caused private defense counsel to withdraw from the 

case.

 Burns’s court-appointed trial counsel provided 

ineffective assistance, in violation of Burns’s Sixth 

Amendment rights, by: 

(a) deviating from the trial strategy of innocence 

approved by Burns; 

(b) misunderstanding the law as to attempted murder; 

(c) failing to investigate certain relevant facts; 

(d) introducing prior bad acts evidence at trial; 

(e) failing to interview and/or call certain rebuttal 

witnesses; 

(f) failing to object to prior bad acts evidence; 

(g) failing to object to the prosecutor’s closing 

argument;

(h) failing to understand or investigate Burns’s 

medical or mental health status; 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 6 of 44
7

(i) failing to object to an off-the-record chambers 

conference with a juror; 

(j) failing to file motions to exclude evidence of 

Burns’s jail time on dismissed charges, his time on 

probation, his time undergoing treatment at Portsmouth 

Pavilion, and the allegations that he misappropriated 

his daughter’s trust fund; and

(k) the cumulative effect of these errors.

The Warden filed an answer (doc. no. 30) and moved for 

summary judgment (doc. no. 33). Burns filed an objection (doc. 

no. 44). The motion (doc. no. 30) and petition are before this 

magistrate judge for a report and recommendation. See Order 

(Oct. 19, 2011) (reopening motion); see also Admin. Ord. 10-5. 

Discussion

I. Summary Judgment

In the context of a habeas corpus proceeding, summary

judgment is appropriate when the nonmoving party fails to show a 

genuine issue of material fact that would require an evidentiary

hearing. See Guy v. Cockrell, 343 F.3d 348, 351-52 (5th Cir. 

2003) (district court may deny § 2254 petition and grant 

warden’s motion for summary judgment where pleadings, 

admissions, discovery materials, and affidavits show that warden 

is entitled to judgment as matter of law); see also Fed. R. Civ. 

P. 56(c) (summary judgment appropriate where there is no genuine 

issue of material fact, and movant is entitled to judgment as 

matter of law); cf. Teti v. Bender, 507 F.3d 50, 62 (1st Cir. 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 7 of 44
8

2007) (before granting evidentiary hearing, habeas judge “‘must 

[first] consider whether such a hearing could enable an 

applicant to prove the petition’s factual allegations, which, if 

true, would entitle the applicant to federal habeas relief’” 

(quoting Schriro v. Landrigan, 550 U.S. 465, 474 (2007)). As 

explained more fully below, Burns has failed to show that there 

is a genuine issue of material fact to either warrant a hearing 

or preclude summary judgment in this case. 

II. Standard for Habeas Review

Federal courts reviewing claims asserted in § 2254 

petitions apply a highly deferential standard of review to state 

court findings and legal conclusions. Federal habeas relief is 

not available as to any claim adjudicated on the merits in state 

court, unless the state court’s legal conclusions or application 

of legal standards to settled facts “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.” 28 U.S.C. § 2254(d)(1); see also

Robidoux v. O’Brien, 643 F.3d 334, 338 (1st Cir.), cert. denied, 

132 S. Ct. 866 (2011). 

If the issue is one of fact, the habeas court must “apply a 

presumption of correctness to the trial court’s factual findings 

and also examine whether there has been an unreasonable 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 8 of 44
9

determination of the facts in light of the evidence presented in 

the state court proceeding.” John v. Russo, 561 F.3d 88, 92 

(1st Cir. 2009); see also 28 U.S.C. § 2254(d)(2) (to prevail, 

petitioner must show that state court adjudication “resulted in 

a decision that was based on an unreasonable determination of 

the facts in light of the evidence presented in the State court 

proceeding”); 28 U.S.C. § 2254(e)(1) (petitioner must offer 

“clear and convincing” evidence to rebut presumption that state 

court fact findings are correct). 

For the purposes of this court’s review of Burns’s claims, 

the relevant state court decisions are the NHSC decision 

affirming Burns’s conviction, with respect to the Miranda claim, 

and the superior court order as to the remaining claims. See

Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). The NHSC rejected 

Burns’s Miranda claim on the merits in his direct appeal of his 

convictions. See State v. Burns, No. 2004-0533 (N.H. June 22, 

2005). The superior court, in denying Burns’s motion for a new 

trial, rejected Burns’s ineffective assistance of counsel, 

interference with counsel of Burns’s choice, and due process 

claims. See State v. Burns, No. 02-S-2540 (N.H. Super. Ct., 

Rockingham Cnty., June 9, 2008), appeal declined, No. 2008-0493 

(N.H. Aug. 14, 2008). The NHSC declined to hear an appeal of 

that order, which renders the superior court order the last 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 9 of 44
10

decision addressing the merits of Burns’s § 2254 claims other 

than his Miranda claim. See Ylst, 501 U.S. at 803-04.

III. Miranda Claim

In his § 2254 petition, Burns has claimed that the state 

courts erred in finding that he waived his Miranda rights and in 

failing to suppress statements that Burns gave to the police. 

The Warden contends that Burns’s Miranda claim is without merit.

The trial court held a hearing on Burns’s pretrial motion 

to suppress his statements. Kingston Police Officer Peterson 

testified that he read Burns his rights from a department-issued 

Miranda card. Peterson testified that Burns signed the back of 

the card, which indicated that Burns waived his rights, and that 

Burns appeared to understand what he was signing. 

Trooper Martin testified that he interviewed Burns after 

first ascertaining from Officer Peterson that Burns had been 

read his rights. Martin’s interview of Burns lasted three hours 

and included a break. Martin testified that Burns appeared 

coherent and was appropriately responsive to questions, and that 

he made incriminating statements, including that he had put the 

“thing” around the victim’s neck. 

After the evidentiary hearing on the motion to suppress, 

the trial court issued a written opinion denying the motion. 

See Order on Def.’s Mot. to Suppress (doc. no. 30-1, at 17-22). 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 10 of 44
11

The trial court found that there was no evidence that Burns was 

under the influence of drugs or alcohol when he made the 

inculpatory statements in question. The court specifically 

found that Burns had knowingly, intelligently, and voluntarily 

waived his Miranda rights.

The NHSC, in Burns’s direct appeal of his convictions, 

cited a state constitutional standard for evaluating whether a 

defendant has validly waived his Miranda rights, which places a 

higher burden of proof on the prosecutor than is required by 

federal law. See Burns, No. 2004-0533, slip op. at 2-3 (under 

New Hampshire law prosecution required to prove beyond a 

reasonable doubt that defendant knowingly, intelligently, and 

voluntarily waived his Miranda rights); cf. Berghuis v. 

Thompkins, 130 S. Ct. 2250, 2260-61 (2010) (under federal law 

prosecution must prove by preponderance of evidence that Miranda

waiver was knowing and voluntary (citing Colorado v. Connelly, 

479 U.S. 157, 168 (1986)). The NHSC held that the record on 

Burns’s motion to suppress indicated that while Burns appeared 

upset, he also appeared coherent and was appropriately 

responsive to questions, and that nothing in his demeanor led 

the police to believe he was under the influence of drugs or 

alcohol. Burns, No. 2004-0533, slip op. at 2. Based on the 

record, the NHSC, like the Superior Court, concluded that the 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 11 of 44
12

prosecution had carried its burden, and that the statements at 

issue were properly admitted at trial. 

The state court found that, beyond a reasonable doubt, 

Burns’s statements were knowingly and voluntarily made, and 

therefore, were properly admitted at trial. The state courts’ 

decisions were reasonable in light of the state court record, as 

set forth above. Further, the NHSC did not unreasonably apply 

pertinent federal law in upholding the denial of the motion to 

suppress, and in affirming Burns’s conviction. Therefore, 

pursuant to 28 U.S.C. § 2254(d), Burns has failed to show that 

he is entitled to federal habeas relief as to his Miranda claim. 

Accordingly, this court should grant the motion for summary 

judgment and deny the § 2254 petition, as to the Miranda claim.

IV. Interference with Counsel of Choice

A. Contentions

Burns claims in his petition that the state interfered with 

his right to counsel of his own choosing (1) by threatening that 

Burns would be charged with misappropriating his daughter’s 

trust funds to pay the retainer for his private defense counsel,

Attorney Bennett; (2) by warning Attorney Bennett that he could 

be called as a witness as to the trust fund misappropriation 

charges, (3) by recommending that counsel withdraw, and (4) by 

filing a motion to clarify counsel’s status, all of which led 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 12 of 44
13

Attorney Bennett to file his own motion to withdraw. The 

superior court held a hearing, granted the motions, continued 

the trial, and appointed new trial counsel for Burns. 

Burns asserts that the trust fund misappropriation charges 

were false, and that the superior court erred in allowing 

Attorney Bennett to withdraw. The Warden maintains that Burns’s 

claim lacks factual support and must fail as a matter of law.

B. Standard

 The Sixth Amendment right to counsel includes the right to 

choose one’s own counsel. See United States v. Gonzalez-Lopez, 

548 U.S. 140, 144 (2006). That right, however, is 

“circumscribed in several important respects.” Wheat v. United 

States, 486 U.S. 153, 159 (1988). The chosen attorney must be, 

among other things, “willing to represent the defendant, free 

from certain conflicts of interest, [and] compliant with the 

rules of the court.” United States v. Stein, 541 F.3d 130, 154 

n.14 (2d Cir. 2008) (citing Wheat, 486 U.S. at 159-60).

C. Superior Court Findings

1. Status of Counsel Hearing

During the hearing on the status of counsel, Attorney 

Bennett notified the court that the Kingston police had 

interviewed him, and that the prosecutor had told him that there 

would be new criminal charges filed against Burns. Attorney 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 13 of 44
14

Bennett told the court that he was particularly concerned that 

he would be called as a witness in an ongoing family court 

proceeding between the victim and Burns, involving the alleged 

misappropriation of certain trust funds. The trial court had 

before it an order issued by the family court, in a proceeding 

involving Burns and the victim, seeking to recoup funds 

allegedly improperly distributed by Burns. Based on counsel’s 

representations, the family court order, and other evidence 

before it, the superior court found that there was a potential 

that Attorney Bennett would be called as a witness against 

Burns. The court specifically informed Burns that those 

circumstances presented a risk of a conflict developing between 

counsel and his client, warranting counsel’s withdrawal. The 

court granted the motion to withdraw, continued the trial, and 

informed Burns of his right to have counsel appointed for him if 

he could not afford to retain his own lawyer. See Tr. of Status 

of Counsel Hearing (doc. no. 33-6). 

2. Motion for New Trial

In his motion for a new trial, Burns raised a Sixth 

Amendment claim in challenging the pretrial order permitting 

Attorney Bennett to withdraw. Assistant Rockingham County 

Attorney Bolton, who was the prosecutor in Burns’s criminal 

trial, filed an objection to Burns’s post-conviction motion. 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 14 of 44
15

Attorney Bolton stated that he had learned shortly before filing 

the status of counsel motion that the FBI and state law 

enforcement agents were investigating whether Burns had 

misappropriated Burns’s daughter’s trust funds, and that the 

family court had issued an order to recoup funds that were 

improperly distributed to persons, including attorneys. 

The superior court adjudicated the merits of Burns’s Sixth 

Amendment interference with counsel claim in denying Burns’s 

motion for a new trial. Based on the record before it on the 

motion for a new trial, the superior court found that the state 

filed its motion to clarify status of counsel “out of an 

abundance of caution,” and not improperly, after informing 

Attorney Bennett that he might be a witness against Burns in 

family court and in a future criminal case. 

In both its ruling on the status of counsel, and in denying 

the motion for a new trial, the superior court found that the 

risk of a conflict developing between Burns and Attorney Bennett 

was real, and that the state had not acted improperly either in 

telling Attorney Bennett that he might be a witness or in filing 

the status of counsel motion. The court also found that 

Attorney Bennett had made an appropriate request to withdraw in 

light of his concern that he would be a witness in family court 

and could be called to testify if charges were filed.

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 15 of 44
16

D. Analysis 

This court finds reasonable, in light of the state court 

record, the superior court’s finding that there was a risk of a 

conflict developing between Attorney Bennett and Burns relating 

to the retainer, warranting counsel’s withdrawal. Cf. N.H. R. 

Pro. Conduct 1.7(a)(2) (“concurrent conflict of interest” exists 

if “there is a significant risk that the representation of one 

or more clients will be materially limited by the lawyer’s 

responsibilities to . . . a third person or by a personal

interest of the lawyer”); Wheat, 486 U.S. at 164 (“serious 

potential for conflict” is sufficient to overcome presumption in 

favor of counsel of choice, in cases in which multiple codefendants are represented by same counsel). Similarly, the 

court’s findings as to the propriety of permitting counsel to 

withdraw were reasonable in light of the record. Because the 

superior court’s adjudication of this Sixth Amendment issue was 

not unreasonable in light of the record, and neither contrary to 

nor an unreasonable application of established federal law, the 

court should grant the respondent’s motion and deny the petition 

as to Burns’s interference with counsel claim. 

V. Potentially Biased Juror Due Process Claim

In his motion for a new trial and in his § 2254 petition, 

Burns has asserted that his convictions were obtained in 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 16 of 44
17

violation of his Fourteenth Amendment right to due process 

because the trial judge interviewed -- in chambers, off the 

record, and without counsel present -- a juror potentially 

biased by contact with a police officer. The Warden has moved 

for summary judgment on this claim, asserting that the issue was 

procedurally defaulted in the state courts and also lacks merit.

A. Background

On the third day of Burns’s criminal trial, a sitting juror 

accepted a ride to court from a Kingston police officer who 

stopped when he saw the juror’s car had broken down. The 

officer did not testify in the case, but attended trial daily. 

Shortly after learning about the juror’s contact with the 

officer, the superior court met with counsel, interviewed the 

juror in chambers alone and off the record, and then summarized 

the interview on the record in the presence of counsel. The 

court’s summary indicates that the juror said that his contact 

with the officer “clearly, absolutely” had not affected his 

ability to sit on the case and had not caused him to favor the 

state. The juror told the court that he had invested time, had 

paid attention, and was dedicated to seeing the case through. 

After summarizing the interview on the record, the court asked 

if counsel had objections. Defense counsel conferred with 

Burns, then stated that they had no objection to the juror. 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 17 of 44
18

B. Analysis

1. Procedural Default

If “the last state court to review a petitioner’s case 

reaches the merits of a federal claim presented to it, any bar 

to federal court review is lifted.” Gunter v. Maloney, 291 F.3d 

74, 80 (1st Cir. 2002) (citing Ylst v. Nunnemaker, 501 U.S. 797, 

804 (1991)). The Warden, contending that the claim was 

procedurally defaulted, cites the superior court’s conclusion 

that Burns had waived the “juror misconduct” claim by raising 

but not briefing it in his direct appeal. 

This court notes that the superior court cited two 

alternative grounds for rejecting Burns’s due process claim: a 

ruling that the “juror misconduct” claim was waived, and an 

alternative ruling that the claim of error lacked merit. See

Super. Ct. Ord., slip op. at 3. The NHSC declined to accept an 

appeal of the superior court order. Thus, the last state court 

that reviewed the claim issued a ruling on the merits.

2. Merits

Burns contends that the procedures employed by the superior 

court concerning its determination of a juror’s potential bias

violated his right to due process. In the state courts, Burns 

challenged the court’s failure to record its interview on the 

record in the presence of counsel. In his § 2254 petition, 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 18 of 44
19

Burns asserts that the trial court erred in failing to hold a 

hearing on the record in the presence of counsel as to whether 

the juror’s contact with the officer was prejudicial to Burns. 

Burns has failed to demonstrate that the superior court’s 

findings on the merits, or the procedures that it followed, were 

either unreasonable or contrary to any clearly established 

federal law. The United States Supreme Court has held that the 

Due Process Clause does not require that all contact between the 

judge and a juror occur on the record. “‘The defense has no 

constitutional right to be present at every interaction between 

a judge and a juror, nor is there a constitutional right to have 

a court reporter transcribe every such communication.’” United 

States v. Gagnon, 470 U.S. 522, 526 (1985) (citation omitted). 

The Supreme Court has held that a post-trial evidentiary 

hearing is constitutionally sufficient to decide allegations of 

juror partiality. See Smith v. Phillips, 455 U.S. 209, 218 

(1982); Remmer v. United States, 347 U.S. 227, 230 (1954). The 

Supreme Court has never held, however, that a hearing or any 

other particular procedure must be employed when the trial court 

inquires in the first instance into potentially prejudicial 

contacts between jurors and third parties, after disclosing to 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 19 of 44
20

counsel the fact of the contact.

1 There is thus no clearly 

“established federal law,” for the purposes of 28 U.S.C. 

§ 2254(d) (“as determined by the Supreme Court” of the United 

States), governing the form that the trial court’s inquiry must 

take in determining if a juror’s ability to decide a case solely 

on the evidence has been compromised by a third party contact.

2 

The procedures employed by the superior court in Burns’s 

case included promptly notifying counsel about the contact, 

meeting privately in chambers with the juror to investigate 

whether the juror was biased, and, upon being assured by the 

juror more than once that he could remain impartial, immediately 

summarizing the colloquy on the record, in the presence of 

 

1The First Circuit has indicated that federal district court 

judges have discretion in federal criminal cases to determine 

which procedures to follow in inquiring into potentially 

prejudicial contacts involving jurors. See United States v. 

Ortiz-Arrigoitia, 996 F.2d 436, 443 (1st Cir. 1993) (“trial 

judge is not . . . shackled to a rigid and unyielding set [sic] 

rules and procedures that compel any particular form or scope of 

inquiry”).

2Burns’s citation to United States v. U.S. Gypsum Co., 438 

U.S. 422 (1978), does not provide authority for finding that the 

superior court was required to hold a hearing on the record in 

the presence of counsel when it inquired into whether the juror 

could remain impartial. In Gypsum, the judge in a federal 

criminal trial had provided a supplemental instruction ex parte, 

off the record, to a deliberating jury’s foreman, and the 

Supreme Court, in exercising its supervisory powers over the 

federal courts, deemed the instruction to be reversible error. 

See id. at 462. Gypsum did not concern whether the Due Process 

Clause requires a court to hold a hearing on the record in the 

presence of counsel when inquiring into a juror’s potential 

bias.

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 20 of 44
21

counsel. The court gave counsel an opportunity to object at 

that point. After consulting with Burns, counsel stated that 

the defense would not object, and counsel requested no further 

procedures. The superior court’s failure to provide Burns with 

additional procedural protections, under the circumstances, was 

not contrary to any clearly established federal law.

In ruling on the post-conviction motion for a new trial, 

the superior court found in light of the record that further 

voir dire would have been fruitless mid-trial, given that the 

juror had clearly told the judge that he could remain impartial. 

The superior court’s findings are reasonable in light of the 

record before that court, and they are entitled to a presumption 

of correctness that Burns has not rebutted. Cf. Rushen v. 

Spain, 464 U.S. 114, 120 (1983) (per curiam) (findings as to 

content of third party communications with juror and “their 

effect on juror impartiality are questions of historical fact” 

which are entitled to presumption of correctness upon federal 

habeas review). Accordingly, the motion for summary judgment 

should be granted, and the petition denied, as to the claim 

asserting a due process violation regarding the off-the-record 

court interview of a juror. 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 21 of 44
22

VI. Ineffective Assistance of Counsel

Burns has asserted in his federal habeas petition that his 

court-appointed trial counsel performed deficiently, in a manner 

prejudicing Burns and violating his Sixth Amendment right to the 

effective assistance of counsel. Burns has listed in his 

petition the alleged errors he asserts counsel made. The Warden 

asserts that Burns procedurally defaulted a number of the cited 

bases for his Sixth Amendment claim, and that, in any event, as 

to all of the ineffective assistance of counsel claims, trial 

counsel’s performance was neither deficient nor prejudicial. 

A. Sixth Amendment Standard

To prevail on a claim of ineffective assistance of counsel, 

a petitioner must show both that trial counsel’s performance was 

deficient and that prejudice resulted. See Harrington v. 

Richter, 131 S. Ct. 770, 787 (2011). In order to satisfy the 

“[d]eficient performance” prong, a petitioner must prove that 

trial counsel's representation fell below “‘an objective 

standard of reasonableness.’” Wright v. Marshall, 656 F.3d 102, 

108 (1st Cir. 2011) (citation omitted). Counsel’s performance 

is deficient “only if no competent attorney would have acted as 

[counsel] did.” Id.

To establish the second prong of the ineffective assistance 

inquiry, that prejudice resulted from counsel’s deficient 

performance, a petitioner must demonstrate that there is a 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 22 of 44
23

reasonable probability that the trial would have had a more 

favorable outcome, but for trial counsel’s unprofessional 

errors. Id.; Yeboah–Sefah v. Ficco, 556 F.3d 53, 70 (1st Cir. 

2009). A court may dispose of the ineffective assistance claim 

with a prejudice analysis alone. Strickland v. Washington, 466 

U.S. 668, 697 (1984) (“If it is easier to dispose of an 

ineffectiveness claim on the ground of lack of sufficient 

prejudice, . . . that course should be followed.”). In ruling 

on Burns’s Sixth Amendment claims in denying the motion for a 

new trial, the superior court generally applied a standard 

applicable to state constitutional claims of ineffective 

assistance of counsel that is equivalent to the standard set 

forth in Strickland. See State v. Roy, 148 N.H. 662, 664, 814 

A.2d 169, 171 (2002) (“The standard for determining whether 

counsel's performance is constitutionally deficient is the same 

under both the [New Hampshire] and Federal Constitutions.”).

B. Cited Issues

1. Deviating from Strategy of Innocence

Burns has asserted in the § 2254 petition that he 

authorized counsel to pursue a strategy of innocence at trial, 

but that, beginning with his opening statement and continuing 

through closing argument, trial counsel departed from that 

strategy without Burns’s approval, to Burns’s detriment. Burns 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 23 of 44
24

points to counsel’s opening statement, in which counsel failed 

to tell the jury that Burns was not with the victim at the 

relevant time, and counsel’s closing argument, in which counsel 

argued that Burns lacked premeditation. 

Burns’s trial counsel testified at the hearing on the 

motion for a new trial that he had consulted with Burns 

regarding the structure and content of his opening statement, 

and regarding his alternative defense theories, presented in his 

closing argument, that the victim had attempted to kill herself, 

and that Burns had not acted with premeditation. Trial counsel 

testified that Burns had instructed him not to argue for a 

lesser-included offense, and that counsel had honored that 

instruction. Trial counsel also testified that he had discussed 

with Burns the problems presented by Burns’s incriminating 

statements, which had not been suppressed and would therefore 

have to be addressed at trial. 

The superior court credited as true counsel’s testimony as 

to the bases for his strategic decisions, and the superior court 

made findings accordingly. In denying Burns’s motion for a new 

trial, the superior court rejected Burns’s claim regarding 

counsel’s failure to stick with a defense of innocence. Those 

findings are reasonable, in light of the state court record, 

which included Burns’s attorney’s explanation of his own 

reasoning and strategic decision-making. 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 24 of 44
25

The United States Supreme Court has established “that 

counsel should be ‘strongly presumed to have rendered adequate 

assistance and made all significant decisions in the exercise of 

reasonable professional judgment.’” Cullen v. Pinholster, 131 

S. Ct. 1388, 1403 (2011). The superior court’s findings 

concerning counsel’s exercise of competent strategic, 

discretionary decision-making at Burns’s trial is neither 

contrary to clearly established federal law, nor an unreasonable 

application of the law to the facts. Accordingly, the court 

should grant summary judgment and deny the petition as to this 

aspect of the Sixth Amendment claim.

2. Misunderstanding Law on Attempted Murder

Burns asserted here, as he did in his motion for a new 

trial, that counsel misunderstood that a conviction for 

attempted murder in New Hampshire does not require proof that 

the defendant acted with premeditation and deliberation, and 

that counsel’s mistaken understanding prejudiced Burns. Burns

asserts that his trial attorney proposed a jury instruction to 

the court that included a premeditation and deliberation 

element. Burns further points to his trial counsel’s statement 

to the court during a trial recess that counsel was not prepared 

to discuss a specific case, and counsel’s closing argument 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 25 of 44
26

stressing the lack of premeditation and deliberation, when those 

issues were not elements of attempted murder. 

In the hearing on the motion for a new trial, counsel 

testified that he was in fact familiar with the pertinent state 

law and had offered the jury instruction to persuade the court 

to provide an instruction which was more favorable to the 

defense. Moreover, counsel testified that his strategy of 

arguing lack of premeditation and deliberation at trial was 

intended to show a lack of intent to commit attempted murder 

because the absence of evidence of premeditation may be used to 

show a lack of intent. 

Based on the record before it, the superior court found 

that counsel was well-prepared and familiar with the pertinent 

law. The superior court also found that counsel’s argument 

manifested an exercise of discretionary trial tactics akin to 

the common practice of arguing absence of motive, where motive 

(like premeditation or deliberation) is not an element of the 

crime. Those findings are reasonable in light of the record 

before the court and do not represent an unreasonable 

application of clearly established federal law. See Yarborough 

v. Gentry, 540 U.S. 1, 5–6 (2003) (“counsel has wide latitude in 

deciding how best to represent a client, and deference to 

counsel’s tactical decisions in his closing presentation is 

particularly important because of the broad range of legitimate 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 26 of 44
27

defense strategy at that stage”). Accordingly, the motion for 

summary judgment should be granted, and Burns’s habeas petition 

denied, with respect to the Sixth Amendment claim asserting 

counsel’s misunderstanding of state law. 

3. Failing to Investigate Mental Health Issues

Burns maintains that his trial counsel did not investigate 

issues concerning the state of Burns’s mental health at the time

Burns made incriminating statements to the police. Burns 

highlights, among other things, counsel’s failure to review 

treatment records from Burns’s post-arrest detention at the 

Rockingham County Department of Corrections, for the purpose of 

challenging the voluntariness of Burns’s statements, and 

counsel’s failure to raise, as an issue pretrial and at trial, 

Burns’s mental health and medicated status. 

The evidence at the hearing on the motion for a new trial 

included testimony that counsel had reviewed documents compiled 

by Burns’s prior attorneys as to Burns’s possibly reduced mental 

capacity because of cocaine use or mental illness. Counsel 

testified that he knew Burns was taking medications for mental 

health issues, and he had assigned a social worker to 

investigate Burns’s mental health. The social worker reviewed 

the relevant records and Burns’s history, and provided an 

opinion that Burns’s mental health issues were consistent with 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 27 of 44
28

drug abusing behavior. Counsel explained that Burns had not 

appeared to be exhibiting withdrawal symptoms or erratic 

behavior when interviewed by the police, and counsel chose not 

to raise the mental health issues at trial fearing that it would 

risk highlighting Burns’s drug abusing behavior for the jury. 

After the hearing, the superior court found that counsel 

had investigated issues relating to Burns’s mental health and 

drug abuse and had found no indication that Burns suffered from 

withdrawal symptoms at the time he made statements to the 

police. The superior court also found that counsel made a 

tactical choice not to challenge the reliability of the 

statements after determining that the challenge would not have 

been successful as a motion to suppress the statements had been 

denied. The superior court rejected Burns’s claim that counsel 

failed to investigate issues related to Burns’s mental health

on the merits. 

The superior court’s relevant findings about counsel’s 

investigation of issues relating to Burns’s mental health are 

reasonable, in light of the record before the court. Similarly, 

the superior court’s finding that counsel reasonably exercised 

his discretionary decision-making relating to the mental health 

issues does not constitute an unreasonable application of 

federal law to the facts in the state court record. See

Strickland, 466 U.S. at 690-91 (“strategic choices made after 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 28 of 44
29

thorough investigation of law and facts relevant to plausible 

options are virtually unchallengeable; and strategic choices 

made after less than complete investigation are reasonable 

precisely to the extent that reasonable professional judgments 

support the limitations on investigation”). Accordingly, the 

Sixth Amendment claim based on the alleged failure to 

investigate Burns’s mental health status should be rejected, and 

summary judgment entered in favor of respondent on this issue.

4. Failing to Interview and/or Call Witnesses

Burns has asserted that trial counsel’s performance was 

deficient because counsel did not interview and/or call as 

witnesses the victim’s brother Ryan Ruddy, Burns’s friend Randy 

Tetreault, and Burns’s mother, Dorothy Wright. Burns asserts 

that each of them could have served as either a favorable 

character witness or rebuttal witness to contradict the victim’s 

story about the assault and her relationship with Burns. 

The Warden asserts in the motion for summary judgment that 

Burns has not demonstrated the prejudice necessary to prevail on 

this aspect of his Sixth Amendment claim. The state court 

rejected Burns’s claim regarding the witnesses, both on the 

merits and on its finding that the claim had been waived, in 

denying Burns’s motion for a new trial. 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 29 of 44
30

At the hearing on the motion for a new trial, Burns’s trial 

counsel testified generally that offering any favorable 

character evidence risked opening the door to damaging evidence 

of bad character. Such damaging evidence included, in 

particular, allegations that Burns: had misappropriated his 

child’s trust funds, had violated his bail conditions, and had 

assaulted Bouzianis in the past. 

As to the witnesses cited in Burns’s petition, Burns’s 

counsel specifically testified that he had interviewed Burns’s 

mother, Dorothy Wright, and his friend Randy Tetreault, and had 

decided not to call either of them for strategic reasons. 

Counsel concluded that the mother would not be helpful to Burns, 

that she would have appeared biased and not credible, and that 

she would have been difficult to control. In consultation with 

Burns, counsel decided against calling the mother.

Counsel testified that he interviewed Tetreault and 

determined that he could have testified that while Burns was out 

on bail after the alleged offense, Burns and the victim 

maintained an affectionate relationship. Counsel decided not to 

call Tetreault because his testimony would have opened the door 

to evidence about Burns violating bail conditions by having 

contact with the victim and by using illegal drugs. 

This court concludes that the superior court’s rejection of 

the ineffective assistance of counsel claim as to counsel’s 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 30 of 44
31

failure to call certain witnesses does not constitute an 

unreasonable application of federal law. The decision not to 

call such witnesses for strategic reasons does not constitute 

ineffective assistance of counsel. See Lema v. United States, 

987 F.2d 48, 54 (1st Cir. 1993) (“The decision whether to call a 

particular witness is almost always strategic, requiring a 

balancing of the benefits and risks of the anticipated 

testimony.”); see also Pina v. Maloney, 565 F.3d 48, 53 (1st 

Cir. 2009) (strategic decision not to call alibi witness did not 

constitute ineffective assistance of counsel). Accordingly, as 

to these witnesses, Burns has failed to show that the superior 

court’s findings were unreasonable or contrary to established 

federal law, as to the “deficient performance” prong of an 

ineffective assistance claim. See Strickland, 466 U.S. at 687.

With respect to not calling the victim’s brother as a 

witness, counsel testified that he had asked an investigator to 

interview him. The investigator was unable to locate the 

brother, and follow up inquiries yielded the possibility that 

the brother was out of state. Counsel testified that his 

reasons for not tracking down the brother included that the 

brother could be biased towards his sister and might not be 

easily controlled or otherwise favorable for Burns. 

As to the issue of prejudice relating to the witness’s 

brother, the superior court found that counsel introduced the 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 31 of 44
32

substance of some of what Burns claimed the brother could have 

testified to through other witnesses, namely, that the brother 

was in the basement apartment on the night of the assault and 

kept handguns there. The trial transcripts show that, while 

counsel did not introduce evidence that the brother had heard no 

noises on the night at issue, counsel argued to the jury that 

the state did not have a witness to corroborate the victim’s 

testimony, and that her story did not make sense because she 

made the unlikely choice of running to her mother’s house 

instead of waking up her heavily-armed brother in the basement.

Given counsel’s success in introducing relevant parts of 

the brother’s testimony through the investigating officers, and 

the abundant evidence in the record including Burns’s 

incriminating statements, the victim’s testimony, and the 

medical evidence, this court finds ample support for the 

reasonableness of the superior court’s finding that Burns failed 

to prove that any prejudice resulted from counsel’s failure to 

interview and/or call the victim’s brother and the other 

witnesses at issue. The superior court did not unreasonably 

apply established federal law in making its findings concerning 

counsel’s performance regarding the witnesses. Accordingly, as 

to Burns’s claims regarding the witnesses who were not 

interviewed and/or called to testify, the court should grant the 

motion for summary judgment and deny the petition.

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 32 of 44
33

5. Failure to Investigate Certain Facts

a. Curtain Valence and Pendant

Burns asserts in his petition that counsel’s performance 

was deficient because (a) counsel did not examine or submit for 

DNA testing the curtain valence to find out if Burns’s DNA was 

in the fibers; and (b) counsel did not examine the fragile 

pendant worn by the victim to determine if it had been damaged. 

The Warden counters in his motion that this aspect of the 

ineffective assistance of counsel claim lacks merit given the 

overwhelming evidence of guilt in the record. The superior 

court denied the motion for a new trial with respect to these 

issues, ruling that the claim was procedurally defaulted, but 

also finding that the claim lacked merit. 

At the superior court hearing on the motion for a new 

trial, Burns’s trial counsel testified that he did not seek to 

have the valence tested for Burns’s DNA in part because he was

concerned that a DNA analysis could generate unhelpful evidence 

simply because Burns had spent time in the room at issue and may 

have left his DNA on the valence without using it as a weapon. 

Counsel further testified that he believed that further 

examination of the pendant and valence was unnecessary, insofar 

as he was pursuing a strategy of challenging the State’s failure

to offer corroborating physical evidence. His purpose in 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 33 of 44
34

pursuing that strategy was to argue to the jury that, taken

along with the inconsistencies in the victim’s statements, the 

lack of corroboration generated a reasonable doubt and would 

yield a finding of not guilty. 

In denying the motion for a new trial, the superior court 

found, as to the valence and pendant, that counsel’s performance 

was adequate. The superior court’s findings regarding these 

issues are not unreasonable in light of the state court record. 

Because the state court did not unreasonably find any relevant 

facts or unreasonably apply clearly established federal law to 

Burns’s case, this court in reviewing the § 2254 petition should 

grant the motion for summary judgment and deny the petition as 

to this aspect of Burns’s Sixth Amendment claim. 

b. Remaining Trial Preparation Issues

Burns has also asserted in his § 2254 petition that counsel

provided ineffective assistance by failing to investigate: (1) 

whether there was a tape of a 911 call made by the victim; (2) 

the victim’s claims that Burns harassed her; and (3) the timing 

and nature of the injuries depicted in photos of the victim. 

The superior court’s order on the motion for a new trial does 

not include any explicit findings as to counsel’s decisionmaking with respect to those issues. In general terms, however, 

the superior court ruled that Burns’s claim that counsel had 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 34 of 44
35

failed to prepare adequately for trial had been raised and 

rejected when the court denied Burns’s post-trial motion to 

dismiss counsel, and that even if the failure to investigate 

claim were preserved, it lacked merit. The Warden concedes in 

the motion for summary judgment filed here that the scope of the 

superior court’s merits ruling could be fairly construed to 

cover the issues of trial preparation listed in Burns’s 

petition, and further asserts that Burns has failed to show 

prejudice.

The state court record includes Burns’s incriminating 

statements, the damaging testimony of a physician who treated 

the victim, and the victim’s testimony. To the extent that 

Burns asserts that his trial attorney failed to properly 

confront this evidence, nothing in the state court record 

suggests that any information that defense counsel might have 

uncovered through further preparation or investigation would

have altered the outcome of the trial. See generally

Strickland, 466 U.S. at 694 (to establish ineffective assistance 

of counsel, petitioner must show that “there is a reasonable 

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

result of the proceeding would have been different,” which 

requires petitioner to show “a probability sufficient to 

undermine confidence in the outcome”). Burns has failed to 

point to any errors of counsel with respect to trial preparation 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 35 of 44
36

and investigation that undermine confidence in the outcome; to 

the extent that the superior court’s finding that the trial 

preparation claim was “meritless” implies a finding that Burns

did not show prejudice, that finding is reasonable in light of 

the record. Accordingly, the court should grant the motion for 

summary judgment, and deny the petition, as to these trial 

preparation issues. 

6. Objections to Prior Bad Acts and Other Testimony 

In his § 2254 petition, Burns has asserted that trial 

counsel’s performance was deficient because counsel did not 

object to the admission of prior bad acts evidence at trial. In 

responding to the motion for summary judgment, Burns has 

clarified that his claim relates to counsel’s failure to object 

to testimony regarding Burns’s time in jail, time on probation, 

being charged with an offense that was subsequently dismissed, 

and doing drugs in jail. Additionally, Burns cites counsel’s

failure to object to an investigating officer’s testimony that 

he saw a man with a gun come out of a basement apartment, given 

that the officer expressed uncertainty as to whether it was 

during the relevant time frame or on an earlier call.

Respondent has asserted, and the superior court 

specifically found, that the Sixth Amendment claim concerning 

counsel’s failure to object to witness testimony was

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 36 of 44
37

procedurally defaulted. As announced by the NHSC in State v. 

Pepin, 159 N.H. 310, 311, 982 A.2d 364, 365 (2009), and State v.

Thompson, 161 N.H. 507, 528, 20 A.3d 242, 258 (2011), however, 

the state procedural bar for claims that could have been raised 

in the NHSC in a direct appeal of a criminal conviction does not 

generally apply to ineffective assistance of counsel claims. 

Accordingly, this court concludes that federal habeas review of 

the merits of Burns’s ineffective assistance claim is not 

barred. See Pina, 565 F.3d at 53 (rejecting, as not regularly 

followed, similar waiver rule cited by gatekeeper justice of 

Massachusetts Supreme Judicial Court, and finding that federal 

habeas review was not precluded). 

In denying Burns’s pro se motion to dismiss counsel, the 

superior court found to be “meritless” Burns’s claim that 

counsel should be dismissed for having failed to object to 

certain testimony at trial; the superior court characterized 

that claim as arising out of Burns’s dissatisfaction with 

counsel’s strategic decision-making, and further found that 

trial counsel had provided “exemplary” representation of Burns. 

As to this aspect of Burns’s ineffective assistance of counsel 

claim, this court’s review of that record demonstrates the 

reasonableness of the superior court’s finding that the decision 

not to object to the testimony at issue was the product of 

strategic decision-making. Moreover, to the extent that the 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 37 of 44
38

superior court implicitly based its finding that the ineffective 

assistance claim lacked merit on Burns’s failure to show 

prejudice, the record before that court supports the 

reasonableness of that finding. 

The evidence of guilt was substantial, and included Burns’s 

incriminating statements to the police, the victim’s testimony, 

and medical evidence, Burns failed to demonstrate that a 

different result would have obtained if counsel had objected to 

testimony regarding: Burns’s doing drugs, spending time in 

jail, and serving time on probation; the investigating officer’s 

statements about the crime scene; and the charges against Burns 

that were subsequently dismissed. Accordingly, the court should 

deny the petition and grant the motion for summary judgment as 

to this aspect of Burns’s Sixth Amendment claim. 

7. Introducing Prior Bad Acts and Motion in Limine

In his petition, Burns contends that his trial counsel’s 

conduct in introducing evidence of Burns’s past drug use, 

cocaine addiction, and other “prior bad acts” showed that 

counsel’s performance was substandard and prejudicial to Burns’s 

defense. Additionally, Burns has asserted that counsel’s 

performance was deficient because he failed to file a motion in 

limine to preclude evidence that Burns had been jailed on 

dismissed charges, had been on probation, had been at the 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 38 of 44
39

Portsmouth Pavilion (a drug treatment/mental health care 

facility), and was subject to allegations that he 

misappropriated trust funds. 

Although the superior court did not specifically address 

the merits of this claim, this court may deem the claim subsumed 

within the superior court’s rejection of Burns’s claims

challenging counsel’s trial preparation and failure to object to 

evidence of Burns’s prior bad acts. To the extent that Burns 

did not procedurally default the claim, it must be denied 

because of Burns’s failure to show prejudice, given the 

substantial evidence of guilt introduced at trial. Accordingly, 

the motion for summary judgment should be granted, and the 

petition denied, as to these claims. 

8. Failing to Object to Closing Argument

Burns asserts that counsel’s failure to object to the 

state’s closing argument, in which the state appealed to the 

juror’s sympathies, constituted ineffective assistance of 

counsel. During the hearing on the motion for a new trial, 

defense counsel testified that he chose not to object because:

he considered the statements to be within the latitude granted 

to counsel in closings; the court had instructed the jury that 

arguments of counsel were not evidence; and he construed the 

prosecutor’s argument, at the time, to be emotional, but not to 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 39 of 44
40

be improper appeals to the jury’s emotions. The superior court 

ruled that counsel’s decision not to object to those portions of

the state’s closing was a tactical decision, and that Burns had 

failed to show prejudice resulting from that decision. 

Given the entire record before the state court, including

the jury instruction that the closing arguments were not 

evidence, and the substantial evidence of guilt, the superior 

court’s finding that Burns failed to show prejudice is not

unreasonable. Moreover, the court’s finding does not constitute 

an unreasonable application of federal law to the facts of 

Burns’s case. See, e.g., Mello v. DiPaulo, 295 F.3d 137, 148

(1st Cir. 2002) (denying federal habeas relief on claim 

challenging prosecutor’s closing argument, which exhorted jury 

to do its duty, where closing was not shown to have affected 

trial outcome, in light of jury instructions and significant 

evidence of guilt). Accordingly, summary judgment on the issue 

should be granted, and the petition denied on this aspect of 

Burns’s Sixth Amendment claim. 

9. Objection to Juror and Request for Voir Dire

In ruling on the merits of the ineffective assistance of 

counsel claim as to the juror potentially biased by contact with 

a police officer, the superior court specifically found that 

counsel made a strategic decision not to object to the juror. 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 40 of 44
41

Counsel made that decision after consulting with Burns and

concluding that the juror, who stated he had not been biased by 

his contacts with the officer, was favorably inclined towards 

Burns. Moreover, the court found that Burns had not shown how 

the result would have been different had counsel requested 

further voir dire. 

In light of the state court record, this court finds 

reasonable the superior court’s conclusion that there was no 

prejudice to Burns. The state court properly applied the 

relevant legal standard for ineffective assistance of counsel to 

the facts of the case. Accordingly, summary judgment on this 

claim is appropriate, and this claim in the petition should be 

denied.

10. Cumulative Effect

Burns has asserted that the cumulative effect of any 

deficiencies in counsel’s performance prejudiced Burns. This 

issue was included in Burns’s application for discretionary 

review before the NHSC, but the state courts did not rule on the 

issue on the merits. Where, as here, federal claims raised in a 

§ 2254 petition were raised in, but never addressed by, the 

state courts, “federal review is de novo.” Pike v. Guarino, 492 

F.3d 61, 67 (1st Cir. 2007); see also Lynch v. Ficco, 438 F.3d 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 41 of 44
42

35, 44 (1st Cir. 2006) (federal claim raised before state court 

but left unresolved is subject to de novo review).

The court may consider the cumulative effect of counsel’s 

errors in determining whether a defendant has been prejudiced. 

See Dugas v. Coplan, 428 F.3d 317, 335 (1st Cir. 2005). A 

“‘cumulative-error analysis merely aggregates all the errors 

that individually have been found to be harmless, . . . and it 

analyzes whether their cumulative effect on the outcome of the 

trial is such that collectively they can no longer be determined 

to be harmless.’” Albrecht v. Horn, 485 F.3d 103, 139 (3d Cir. 

2007) (quoting Darks v. Mullin, 327 F.3d 1001, 1018 (10th Cir. 

2003)).

Here, the superior court specifically found that Burns’s 

showing of prejudice was insufficient as to: (1) the decision 

not to call the victim’s brother, (2) the decision not to object 

to the potentially tainted juror, (3) the decision not to 

request further voir dire of the juror, and (4) the decision not 

to object to the prosecutor’s closing argument. There is no 

indication in the record that a cumulative error analysis would 

yield a different result, even if that analysis encompassed 

counsel’s alleged errors as to evidence of Burns’s prior bad 

acts. Whether considered individually or cumulatively, the

aspects of counsel’s trial preparation and tactics alleged to be

deficient by Burns have not been shown to have caused him 

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 42 of 44
43

prejudice, where the evidence supporting a finding of guilt was 

substantial. Accordingly, summary judgment should be granted, 

and the petition denied, on the cumulative error aspect of 

Burns’s Sixth Amendment claim.

VII. Certificate of Appealability

The § 2254 Rules require the district court to "issue or 

deny a certificate of appealability when it enters a final order 

adverse to the party." § 2254 Rule 11(a). The court will issue 

the certificate “only if the applicant has made a substantial 

showing of the denial of a constitutional right.” 28 U.S.C. 

§ 2253(c)(2). Burns has failed to make such a showing. 

Accordingly, the court should deny a certificate of 

appealability in this case. 

Conclusion

For the foregoing reasons, the court should find that 

petitioner has failed to demonstrate that he is entitled to a 

writ of habeas corpus pursuant to 28 U.S.C. § 2254. The motion 

for summary judgment (doc. no. 33) should be granted. The 

petition for a writ of habeas corpus (doc. nos. 1, 13-14, and 

24) should be denied. Should the court adopt this 

recommendation, the court should also deny a certificate of 

appealability.

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 43 of 44
44

Any objections to this Report and Recommendation must be 

filed within fourteen days of receipt of this notice. See Fed. 

R. Civ. P. 72(b)(2). Failure to file objections within the 

specified time waives the right to appeal the district court’s 

order. See United States v. De Jesús-Viera, 655 F.3d 52, 57 

(1st Cir. 2011), cert. denied, 132 S. Ct. 1045 (2012); Sch. 

Union No. 37 v. United Nat’l Ins. Co., 617 F.3d 554, 564 (1st 

Cir. 2010) (only issues fairly raised by objections to 

magistrate judge's report are subject to review by district 

court; issues not preserved by such objection are precluded on 

appeal).

__________________________________

Landya B. McCafferty

United States Magistrate Judge

Date: May 9, 2012

cc: David Burns, pro se

Elizabeth C. Woodcock, Esq.

LBM:nmd

Case 1:06-cv-00131-PB Document 47 Filed 05/09/12 Page 44 of 44