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. In his amended petition, Pratt brings

claims of prosecutorial misconduct, judicial bias, ineffective

assistance of counsel, and a lack of jurisdiction. The warden

moves for summary judgment. Pratt moves to strike the factual

statement in the warden’s motion and also filed a response to the

motion for summary judgment.

I. Motion to Strike Factual Background

Pratt challenges the factual statement in the warden’s

motion for summary judgment on the grounds that the facts are

contested and are more unfairly prejudicial than probative. Only

undisputed material facts are considered for purposes of summary

judgment. Fed. R. Civ. P. 56(c). To the extent Pratt provides a

properly supported opposition to the contested facts presented in

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the warden’s motion and to the extent any of the facts stated by

the warden are not material, they will not be considered for

purposes of summary judgment. Further, because summary judgment

must be based on the undisputed facts of record, factfinding is

not part of the summary judgment process, making Federal Rule of

Evidence 403 inapposite here. The motion is denied.

II. Motion for Summary Judgment

Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). “[A] determination of a factual issue made by a State

court shall be presumed to be correct[, and] [t]he applicant

shall have the burden of rebutting the presumption of correctness

by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). 

Further, [i]if the applicant has failed to develop the factual

basis of a claim in State court proceedings, the court shall not

hold an evidentiary hearing on the claim unless [specified

conditions are met.]” § 2254(e)(2).

A. Background

Pratt met Jamie through the Internet. Jamie said that she

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

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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.

3

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

 Pratt was indicted in September of 2000 on one count of

interference with custody. He was tried and found guilty on

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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. 

B. Habeas Standard

“When a claim is adjudicated on the merits in state court

proceedings, the petitioner must show that the decision of the

state courts was either ‘contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States; or . . . that [the

decision] was based on an unreasonable determination of the facts

in light of the evidence presented in the State court

proceeding[s].’” Allison v. Ficco, 388 F. 3d 367, 369 (1st Cir.

2004) (quoting § 2254(d)(1),(2)). “If his claim was not

adjudicated on the merits in the state court proceedings, then we

review the claim de novo.” Lavallee v. Coplan, 374 F.3d 41, 44

(1st Cir. 2004).

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The claims that Pratt alleges in support of his petition for

habeas relief were raised in his motions for a new trial and to

quash the indictment, which were considered together by the state

court. The state court addressed several of the claims with a

reasoned analysis and then summarily denied the remainder as

follows:

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 (Rockingham County Sup. Ct. Aug. 20,

2004). Pratt moved, pro se, for reconsideration, which the court

denied, because he filed it pro se while he was represented by

counsel. The New Hampshire Supreme Court declined to review

Pratt’s appeal and denied his motion for reconsideration.

The warden contends that the state court adjudicated all of

Pratt’s claims on the merits in the decision denying the motion

for a new trial, entitling that decision to deferential review on

all claims. The state court’s summary denial of the majority of

the claims without any supporting analysis or reasoning raises a

question of what constitutes “adjudication on the merits” for

purposes of deferential review under § 2254(d). 

The First Circuit applies deferential review, under 

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§ 2254(d), to federal habeas issues that the state court actually

addressed, decided, or resolved. See, e.g., Lynch v. Ficco, ---

F.3d ---, 2006 WL 336218, at *6 (1st Cir. Feb. 15, 2006); Coplan

v. Dugas, 428 F.3d 317, 327 (1st Cir. 2005); Allison, 388 F.3d at

369; Horton v. Allen, 370 F.3d 75, 80 (1st Cir. 2004); Watkins v.

Murphy, 292 F.3d 70, 75-6 (1st Cir. 2002); Fortini v. Murphy, 257

F.3d 39, 47 (1st Cir. 2001). The state court’s decision may be

based on a state law standard that either incorporates or is more

lenient than the federal standard, in which case it is the

ultimate result and not the reasoning that is the focus of habeas

review. McCambridge v. Hall, 303 F.3d 24, 35 (1st Cir. 2002);

DiBenedetto v. Hall, 272 F.3d 1, 6 (1st Cir. 2001). “If the

state court has not decided the federal constitutional claim

(even by reference to state court decisions dealing with federal

constitutional issues), then we cannot say that the

constitutional claim was ‘adjudicated on the merits’ within the

meaning of § 2254 and therefore entitled to the deferential

review prescribed in subsection (d).” Id.

The First Circuit standard leaves a question in this case as

to whether the state court adjudicated all of Pratt’s claims on

the merits when the court provided no reasoning or explanation as

to the majority of the claims. Other circuits apply deference

under § 2254(d) differently when the state court provides only a

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summary decision without expressly addressing the federal issues

raised by the prisoner. See, e.g., Weaver v. Bowersox, --- F.3d

---, 2006 WL 345851, *4-*5 (8th Cir. Feb. 16, 2006) (citing and

discussing cases from other circuits); Allen v. Ornoski, 435 F.3d

946, 955 (9th Cir. 2006) (discussing independent review

standard); Muth v. Frank, 412 F.3d 808, 815-16 (7th Cir. 2005)

(citing and discussing standards from other circuits); Webber v.

Scott, 390 F.3d 1169, 1177 (10th Cir. 2004) (applying independent

review standard). 

The warden does not adequately address the issue of whether

the claims that were summarily denied by the state court were

adjudicated on the merits. Further, the warden’s motion does not

provide an adequate analysis under the deferential standard to

support summary judgment. That analysis must address each claim

separately, cite the applicable federal law, and provide a

developed theory as to why the state court decision meets that

standard. On the other hand, if the de novo standard applies to

these claims, the warden must move for summary judgment based on

that standard with appropriate citations to the record and the

applicable law. 

In addition, the warden contends that Pratt’s claims of

prosecutorial misconduct were procedurally defaulted, based on

Pratt’s concession that his trial counsel did not object on that

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ground at trial. The claims of prosecutorial misconduct were

summarily denied by the state court, along with the majority of

Pratt’s claims, in denying his motion for a new trial. If the

warden interprets that result to mean that the state court found

that all of those claims were procedurally defaulted, then none

were adjudicated on the merits. See, e.g., Graves v. Dretke, ---

F.3d ---, 2006 WL 515485, at *4 (5th Cir. Mar. 3, 2006); DeBerry

v. Portuondo, 403 F.3d 57, 67 (2d Cir. 2005).

If the warden interprets the record to show that only the

claims of prosecutorial misconduct were procedurally defaulted,

he has not demonstrated that he is entitled to summary judgment

on that theory. The warden relies on the rule:

“In all cases in which a state prisoner has defaulted

his federal claims in state court pursuant to an

independent and adequate state procedural rule, federal

habeas review of the claims is barred unless the

prisoner can demonstrate cause for the default and

actual prejudice as a result of the alleged violation

of federal law, or demonstrate that failure to consider

the claims will result in a fundamental miscarriage of

justice.” 

Lynch, 2006 WL 336218 at *6 (quoting Coleman v. Thompson, 501

U.S. 722, 750 (1991)). The procedural default rule applies when

the state court refused to consider the petitioner’s federal

claim because he failed to satisfy state procedural requirements. 

Coleman, 501 U.S. at 729-30. The procedural default rule does

not apply “[i]f the last state court to be presented with a

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2In contrast, the state court ruled that Pratt waived his

challenge to the application of RSA 633:4, in which he argued

that the statute applies only to custodial disputes between

parents, because he did not raise that claim before or during

trial or on appeal. Pratt does not appear to have included that

issue as a claim in his habeas petition here. 

9

particular federal claim reaches the merits.” Ylst v.

Nunnemaker, 501 U.S. 797, 801 (1991). In other words, the rule

only bars consideration of a claim when the state court made a

decision, based on independent and adequate state law grounds,

not to consider the claim. McCambridge, 303 F.3d at 34.

Contrary to the warden’s assertion of procedural default

here, the state court did not refuse to consider Pratt’s claim of

prosecutorial misconduct, which was raised in his motion for a

new trial. In denying that motion, the state court found the

claim to be meritless, without any mention of procedural grounds

that would bar the claim. Therefore, the warden’s motion on the

ground that Pratt procedurally defaulted his claim of

prosecutorial misconduct is denied.2 

 The court will not consider the warden’s motion with

respect to the claims that were summarily denied by the state

court. As to those claims, the motion is denied without

prejudice to filing a properly developed and supported motion for

summary judgment, which motion shall be filed on or before April

21, 2006.

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C. Summary Judgment Motion as to Adjudicated Claims

In the order denying Pratt’s motion for a new trial, the

state court provided a reasoned analysis of three of the

ineffective assistance of counsel claims that Pratt raised. 

Those claims are that Pratt’s trial counsel was constitutionally

deficient first because he did not argue that the evidence was

insufficient to show a violation of RSA 633:3; second, because

the defense theory, focusing on concealment rather than

enticement, was legally erroneous; and third, because counsel

failed to introduce evidence of telephone bills and a message

found on Jamie’s computer. The state court also addressed

Pratt’s jurisdictional challenge to his conviction. The state

court denied Pratt’s motion for a new trial on those claims. 

The state court’s decision is reviewed as to each claim to

determine whether it “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States” or whether

the “decision was based on an unreasonable determination of the

facts in light of the evidence presented in the State court

proceeding.” § 2254(d). A state court’s decision is contrary to

clearly established law “if it applies a rule that contradicts

the governing law set forth in our cases or if it confronts a set

of facts that [is] materially indistinguishable from a decision

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of this Court and nevertheless arrives at a result different from

our precedent.” Price v. Vincent, 538 U.S. 634, 640 (2003)

(internal quotation marks omitted). 

“Under the ‘unreasonable application’ prong of [§ 2254(d)],

the petition may be granted if the state court ‘identifies the

correct governing legal principle from [the Supreme] Court’s

decisions but unreasonably applies that principle to the facts of

the prisoner’s case.” Horton v. Allen, 370 F.3d 75, 80 (1st Cir.

2004) (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). To

be an unreasonable application of federal law, “the state court’s

decision must have been [not only] incorrect or erroneous [but]

objectively unreasonable.” Rompilla v. Beard, 125 S. Ct. 2456,

2462 (2005) (internal quotation marks omitted). A state court

decision is neither contrary to nor an unreasonable application

of federal law merely because it fails to cite federal cases. 

Early v. Packer, 537 U.S. 3, 8 (2002). In addition, “a

determination of a factual issue made by a State court shall be

presumed to be correct. The applicant shall have the burden of

rebutting the presumption of correctness by clear and convincing

evidence.” § 2254(e)(1). 

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 1. Ineffective assistance of counsel.

Supreme Court jurisprudence examines claims of ineffective

assistance of counsel 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). The state

court analyzed Pratt’s claims under a state-law standard, State

v. Henderson, 141 N.H. 615 (1997), “that mirrors the Sixth

Amendment standards articulated in [Strickland].” Dugas, 428

F.3d at 325-26. Because the state court identified the correct

legal standard and no Supreme Court cases are indistinguishable

from this one on the facts, the state court decision on the

ineffective assistance of counsel claims is not contrary to

clearly established federal law. 

a. Failure to object on insufficiency of the

evidence grounds.

The state court found that Pratt’s trial counsel was not

deficient in failing to object that the evidence was insufficient

to prove Pratt violated RSA 633:4 because the evidence was

sufficient to support the verdict. As such, the trial court

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3The warden mistakenly argues that the state court found no

prejudice resulted from Pratt’s trial counsel’s representation. 

The warden shall pay more attention to detail.

4RSA 633:4, I, before amendment in 2005, provided: 

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 physical custody or physical custodial

rights as described in RSA 458:17, IV.

RSA 458:17, IV explains that a parent with joint legal custody

but not physical custody is not “deemed to have a right of

primary physical custody under RSA 633:4.”

13

concluded that Pratt’s trial counsel’s representation was not

deficient. The court did not reach the second prong of the

analysis, concerning prejudice.3

Pratt argued in his motion for a new trial that the evidence

was insufficient to support a conviction under RSA 633:4 because

Jamie was living with her father, who did not have primary

physical custody of her, when she left with Pratt.4 In other

words, Pratt claimed that his counsel was ineffective in failing

to argue that Pratt had not violated RSA 633:4 by taking Jamie

away from her father’s custody because Jamie’s mother, not her

father, had primary physical custody. 

The state court ruled that by taking Jamie to his apartment

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in Massachusetts, Pratt took her away from the custody of both of

her parents, so that counsel was not ineffective for failing to

raise that issue. The state court’s decision has not been shown

to be erroneous, much less objectively unreasonable.

b. Choice of defense.

The state court also ruled that Pratt’s trial counsel was

not deficient in pursuing a defense based on concealment because

that was a reasonable tactical choice. In his challenge to his

counsel’s choice of defense tactics, Pratt cites the New

Hampshire Supreme Court’s unpublished decision in his direct

appeal that held: “[U]nder RSA 633:4, I (Supp. 2002), the

culpable act is not concealment, but rather enticement of the

child from the State.” State v. Pratt, Case No. 2001-748 (N.H.

Nov. 6, 2002). He argued that his counsel was ineffective

because he focused on the issue of concealment when enticement

was the culpable act. The state court ruled that Pratt’s trial

counsel’s decision to focus on concealment was a reasonable

tactical decision because the evidence supported that theory. 

The New Hampshire Supreme Court did not rule, as Pratt

apparently believes, that concealment was not an element of the

crime. Instead, the supreme court ruled that an affirmative act

of concealment is not required to prove guilt under RSA 633:4,

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because enticement is the culpable act while concealment is the

required intent under the statute. That is, the elements of RSA

633:4 are: (1) knowingly (2) taking or enticing a child from the

state (or causing that to happen), (3) when the child was under

eighteen, and (4) with specific intent to conceal the child from

a person with lawful physical custody. See id. The evidence

cited by the state court in support of the ruling that Pratt’s

trial counsel was not deficient supports the conclusion that it

was a rational tactical decision to focus on the issue of whether

there was evidence sufficient to show that Pratt intended to

conceal Jamie from her parents. Therefore, the state court’s

decision is not an unreasonable application of the Strickland

rule.

c. Documentary evidence.

Pratt also claimed that his trial counsel was deficient

because he did not introduce documentary evidence to support

trial testimony about telephone calls to him from Jamie and about

Jamie’s emotional problems and suicidal thoughts. The state

court ruled that because the same information was provided

through testimony, Pratt’s trial counsel did not err in failing

to also introduce the documentary evidence. Because federal law

does not require counsel to introduce cumulative evidence, Pratt

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has not shown that the state court’s decision is objectively

unreasonable or even wrong. See Clark v. Mitchell, 425 F.3d 270,

286 (6th Cir. 2005); Hall v. Luebbers, 296 F.3d 685, 693-94 (8th

Cir. 2002); United States v. Jackson, 935 F.2d 832, 846 (7th Cir.

1991).

2. Jurisdiction.

Under the jurisdictional heading in his habeas petition,

Pratt asserts that RSA 633:4 is unconstitutionally vague, that

jurisdiction was lacking because New Hampshire had not issued a

custody order pertaining to Jamie, and that jurisdiction is not

conferred on New Hampshire under RSA 633:4, the Parental

Kidnaping and Prevention Act, or RSA 458-A, the Uniform Child

Custody Jurisdiction Act. The state court addressed only that

aspect of Pratt’s jurisdictional argument relating to whether RSA

633:4 extended jurisdiction to the circumstances of his case,

which was raised in Pratt’s motion to quash the indictment. That

is, Pratt claimed that New Hampshire lacked subject matter

jurisdiction to prosecute him under RSA 633:4 because

jurisdiction for the crime of interference with custody exists

only in the state of residence of the person with primary

physical custody. 

The state court ruled that under RSA 624:4, I, New Hampshire

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5Further, even if Pratt had raised a federal claim that New

Hampshire’s jurisdictional statute violated due process, it would

have been futile. See Strassheim v. Daily, 221 U.S. 280, 284-85

(1911); 4 LaFave, Israel, and King, Criminal Procedure § 16.4(c)

at 585-87 (2d ed. 1999).

17

had jurisdiction to convict Pratt of interference with custody. 

RSA 624:4, I provides jurisdiction, in pertinent part, when

“conduct which is an element of the offense or the result which

is such an element occurs within this state,” meaning that the

state has jurisdiction to prosecute any crime committed at least

partly in New Hampshire. See State v. Blackmer, 149 N.H. 47, 51

(2003). The state court found that both enticement and intent to

conceal, elements of the offense of interference with custody,

occurred in New Hampshire. 

Pratt, however, did not raise a federal claim in his motion

to quash the indictment. Instead, he argued under state law that

RSA 633:4 applied only in cases of parental interference with

custody and that the offense could be prosecuted only in the

state of residence of the primary physical custodian. In

response, the state court decided the jurisdictional issue

exclusively on state law grounds. Therefore, the state court’s

decision, even if it were erroneous, is not reviewable in the

context of habeas corpus.5 Estelle v. McGuire, 502 U.S. 62, 67-8

(1991). 

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Conclusion

For the foregoing reasons, the petitioner’s motion to strike

factual background (document no. 13) is denied. The respondent’s

motion for summary judgment (document no. 12) is granted in part

and denied in part as is more fully explained in this order. To

the extent the motion is denied, it is denied without prejudice

to filing a properly developed and supported motion on or before

April 21, 2006, unless the respondent is granted an extension of

time for filing. 

SO ORDERED.

Joseph A. DiClerico, Jr.

United States District Judge

March 16, 2006

cc: Harvey Pratt, pro se

Nicholas P. Cort, Esquire

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