UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Miguel Ortiz

v. Civil No. 05-cv-0350-JL 

Opinion No. 2008 DNH 166

Blaisdell, Warden,

Northern New Hampshire

Correctional Facility

O R D E R

The pro se petitioner, Miguel Ortiz, seeks habeas corpus

relief from his state convictions for selling heroin, claiming

ineffective assistance of counsel and other constitutional

violations. The respondent, the acting Warden of the Northern

Correctional Facility of the New Hampshire State Prison (“the

Warden”) has moved for summary judgment, arguing that some claims

are procedurally defaulted and they all lack merit. Ortiz

objects and requests an evidentiary hearing.

This court has jurisdiction over Ortiz’s petition under the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

28 U.S.C. § 2254(a). For the reasons stated below, the court

grants the Warden’s motion for summary judgment and denies

Ortiz’s motion for an evidentiary hearing.

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Background

Ortiz was convicted by a jury in Rockingham County Superior

Court on two counts of selling less than one gram of heroin to an

undercover police officer of the New Hampshire Drug Task Force in

violation of N.H. Rev. Stat. Ann. § 318-B:2. The sales took

place on June 24 and June 28, 1999. A third count charged

another sale to the same officer--on June 17, 1999--but was

dismissed before trial by writ of nolle prosequi. The trial took

place on June 12, 2003. 

On the first day of jury selection, Ortiz informed defense

counsel of a witness he said could provide exculpatory testimony

as to the June 28 sale--one Leonardo Rivera, who was apparently

acquainted with Ortiz’s mother. Though defense counsel believed,

based on his initial conversation with Rivera, that his testimony

was not helpful, he nevertheless notified the prosecutor, who

arranged a meeting with Rivera on the day before opening

statements were scheduled to commence to discuss his testimony. 

Rivera did not show up.

The next day, defense counsel spoke to Rivera again, this

time with the aid of an interpreter. Defense counsel learned

that Rivera would offer exculpatory testimony, namely, that he

had observed Ortiz’s interaction with the police on June 28, but

had seen no exchange of money or drugs; Rivera claimed that Ortiz

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was thrown to the ground by police immediately after arriving at

the scene. Based on the prosecutor’s objection, the superior

court did not allow Rivera to testify, ruling that the untimely

disclosure had prejudiced the state, which, had it been timely

notified of the witness, would have endeavored to present the

testimony of some of the seven other officers who monitored the

transaction, many of whom were no longer on the Task Force. 

The undercover officer testified at trial that he was

introduced to Ortiz through a confidential informant, who, at the

officer’s request, arranged for him to purchase twenty bags of

heroin from Ortiz at the informant’s residence. The informant

referred to Ortiz as “Joel,” but the officer identified Ortiz at

trial as the man with whom he had met. For his part, the officer

called himself “Domenick” in his dealings with Ortiz.

On June 24, the three men met in person as arranged, with

Ortiz giving the undercover officer what turned out to be sixteen

bags of a white powdery substance in exchange for $200. The

officer placed the bags in the trunk of his car, then secured

them in a locker at the local police station for several days. 

The officer later field-tested the substance in one of the bags,

resulting in a positive indication for heroin. 

The confidential informant subsequently arranged for the

undercover officer to make another purchase of twenty bags of

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heroin from Ortiz. On June 28, 1999, the officer met Ortiz in

the parking lot of a Pep Boys store in Salem, New Hampshire,

under surveillance by a team of officers from the Task Force. 

The undercover officer testified that he handed $200 to Ortiz,

whom the officer recognized from their previous encounter. Ortiz

then threw several bundles on the ground and attempted to return

to his vehicle, but was apprehended by the other Task Force

officers. The undercover officer retrieved the nineteen bundles,

which contained a light-colored powdery substance that field

tests revealed to be heroin.

That same day, the officer took the packets obtained in both

transactions with Ortiz to Task Force headquarters, where each

collection was sealed in a separate evidence bag accompanied by

an “Evidence Examination Request” form. While the form for the

second transaction listed the “Date Obtained From Suspect-Owner”

as June 28, 1999, the form for the first transaction left that

space blank. The forms, together with the accompanying bags and

their contents, were received into evidence at trial. A

criminalist from the State Police laboratory testified that she

performed tests on the substance in the packets contained in the

evidence bags, which revealed the substance to be heroin. 

Another officer from the Task Force testified at trial that

he had apprehended Ortiz as he attempted to flee the Pep Boys

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parking lot. Ortiz, who identified himself as such to the

officer following the apprehension, confessed after receiving his

Miranda warnings. According to the officer, Ortiz said that, in

response to a message from an acquaintance, he had traveled from

Massachusetts to the Pep Boys in Salem for the purpose of selling

heroin to a man he knew as “Domenick.” Ortiz also said that he

had first met “Domenick” a few days prior to June 28.

Ortiz did not call any witnesses in his own defense, but, at

the close of evidence, moved for a judgment of acquittal, arguing

that the state had not proven beyond a reasonable doubt that the

man who had provided the heroin to the undercover officer was, in

fact, Ortiz. The motion was denied. But defense counsel

emphasized this argument in his summation, adding that the

state’s failure to call the confidential informant as a witness,

as well as what counsel characterized as the criminalist’s

equivocation on the results of her testing, contributed to

reasonable doubt. Defense counsel further argued that the use of

the informant, particularly in “inducing” Ortiz to travel to New

Hampshire from Massachusetts to sell drugs, was unfair, so that

the jury should use its power of nullification to acquit Ortiz

“even if [they] find that the State has proven every element of

the offense charged beyond a reasonable doubt.” While the

superior court allowed this argument, it refused to give a

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nullification charge as defense counsel had requested. The jury

convicted Ortiz on both counts.

At sentencing, the state argued for a term of six to twelve

years imprisonment for the June 28 sale, and for a consecutive

term of two and one-half to five years for the June 24 sale to be

suspended upon Ortiz’s release from his first term. In support

of this recommendation, the state relied on various factors,

including Ortiz’s post-arrest statements that he had been selling

$100 in heroin each day, as well as a number of prior felony

convictions for both drug and property offenses. The state also

noted that, while it had dismissed the charge against Ortiz for

selling heroin to the undercover officer on June 17 due to

difficulty in producing the technician who had tested the

substance, that sale involved .61 grams of heroin, so that Ortiz

had sold more than one gram over an eleven-day period. 

Defense counsel objected to the use of the dismissed charge

for sentencing; in response, the state argued that it could be

properly considered, but that the balance of the evidence

supported the recommended sentence anyway. Without resolving

this dispute, the court imposed terms of five to ten years for

the June 28 sale and two and one-half to five years, suspended,

for the June 26 sale, remarking, “it’s pretty obvious to me you

were a drug dealer and you were dealing pretty regularly.” 

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Ortiz, through counsel, appealed his conviction and sentence

to the New Hampshire Supreme Court, arguing that the superior

court had erred by (1) refusing to allow Rivera to testify, in

violation of Ortiz’s right under the New Hampshire constitution

to present evidence in his own defense, (2) allowing the state to

base its sentencing argument on the charge that had been

dismissed before trial, in violation of his right to trial by

jury under the Sixth Amendment to the federal constitution, 

(3) denying the motion for judgment of acquittal, (4) refusing to

give a jury nullification charge, and (5) giving an instruction

on reasonable doubt that deviated from state law. In affirming

the convictions and sentence, the state supreme court rejected

the first four claims on the merits. New Hampshire v. Ortiz, No.

2003-0686 (N.H. Dec. 22, 2004) (unpublished disposition)

(“Supreme Court Order”), slip op. at 2. As to the fifth claim,

the supreme court ruled that, even if it could be reviewed under

the plain error standard, it also had no merit. Id.

Ortiz, proceeding pro se, then filed a petition for a writ

of habeas corpus in this court. Based on his initial review, see

Rule 4 of the Rules Governing § 2254 Proceedings, the Magistrate

Judge identified the following claims in Ortiz’s petition:

1. The trial court violated Ortiz’s Fourteenth

Amendment due process rights when it excluded a

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defense witness and the witness’ exculpatory and

relevant testimony;

2. The trial court violated Ortiz’s Fourteenth

Amendment due process rights when it read an

erroneous reasonable doubt instruction to the

jury;

3. The conviction was obtained by prosecutorial

misconduct when the prosecutor committed fraud on

the tribunal by presenting evidence from an

indictment that had been nol prossed in support of

another charge;

4. The conviction was obtained by prosecutorial

misconduct when the prosecutor committed fraud on

the tribunal by providing the court with doctored

documents;

5. Ortiz received the ineffective assistance of trial

counsel, in violation of his Sixth and Fourteenth

Amendment rights to counsel and to due process,

when trial counsel failed to file a motion to have

doctored documents excluded from evidence;

6. Ortiz received the ineffective assistance of trial

counsel, in violation of his Sixth and Fourteenth

Amendment rights to counsel and to due process,

when trial counsel failed to advocate zealously on

Ortiz’s behalf by presenting an entrapment defense

and admitting that Ortiz had committed the acts

charged;

7. Ortiz received the ineffective assistance of trial

counsel, in violation of his Sixth and Fourteenth

Amendment rights to counsel and to due process,

when trial counsel failed to investigate the case;

8. Ortiz received the ineffective assistance of trial

counsel, in violation of his Sixth and Fourteenth

Amendment rights to counsel and to due process,

when trial counsel did not meaningfully challenge

the state’s case;

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9. Ortiz received the ineffective assistance of trial

counsel, in violation of his Sixth and Fourteenth

Amendment rights to counsel and to due process;

when trial counsel did not cross-examine state’s

witnesses;

10. Ortiz received the ineffective assistance of trial

counsel, in violation of his Sixth and Fourteenth

Amendment rights to counsel and to due process,

when trial counsel failed to file a motion to

dismiss the charges against Ortiz on the basis of

variations in testimonial and documentary evidence

of state’s witnesses;

11. Ortiz received the ineffective assistance of trial

counsel, in violation of his Sixth and Fourteenth

Amendment rights to counsel and to due process,

when trial counsel failed to prevent a previously

dismissed indictment from being presented to the

judge in furtherance of the state’s argument for

sentence enhancement;

12. Ortiz received the ineffective assistance of trial

counsel, in violation of his Sixth and Fourteenth

Amendment rights to counsel and to due process,

when trial counsel failed to raise and preserve

meritorious issues for appeal;

13. Ortiz received the ineffective assistance of 

[appellate] counsel, in violation of his Sixth and

Fourteenth Amendment rights to counsel and to due

process, when appellate counsel failed to prevent

the state from arguing that Ortiz’s sentence was

not enhanced.

Rept. & Rec. at 2-5. The Magistrate Judge also ruled, however,

that Ortiz had neither shown that he had exhausted all of these

claims in the state courts nor explained any failure to do so.

See 28 U.S.C. § 2254(b)(1). Ortiz therefore requested, and was

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 The superior court also ruled that the petition made

other claims, particularly the challenge to the use of the

dismissed charge at sentencing, that had been decided by the

state supreme court on direct appeal and therefore could not be

raised collaterally.

10

granted, a stay of proceedings on his habeas petition while he

pursued his claims at the state level.

Ortiz then filed a pro se petition for a writ of habeas

corpus in the superior court, asserting, for all intents and

purposes, the same claims as his federal habeas petition, as well

as a number of state-law claims. After a hearing, the superior

court denied the motion in its entirety. Ortiz v. Blaisdell, No.

06-E-14 (N.H. Super. Ct. Sept. 1, 2006) (“Superior Court Order”),

slip op. at 5. First, the court ruled that the petition raised

“evidentiary issues,” including “inconsistencies in the various

police reports,” which “could have been raised to the trial court

and on appeal but were not,” and therefore could not be used to

attack the convictions collaterally.1 Id. at 3-4 (citing Avery

v. Cunningham, 131 N.H. 138, 143 (1988)). Second, the superior

court ruled that Ortiz’s claims for ineffective assistance of

trial counsel “have already been decided on appeal or waived,”

while his claims for ineffective assistance of appellate counsel

had no merit. Id. at 5-6.

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Ortiz filed a notice of discretionary appeal of this

decision with the New Hampshire Supreme Court, which declined

review. See N.H. Supr. Ct. R. 7(1)(B). Ortiz also moved to

amend his federal habeas petition, which the magistrate judge

allowed in part, resulting in the addition of a fourteenth claim:

Ortiz received the ineffective assistance of

appellate counsel because appellate counsel failed

to raise and litigate the issue of the ineffective

assistance of trial counsel before the state

courts, in violation of Ortiz’s Sixth Amendment

right to the effective assistance of both trial

counsel and appellate counsel and his Fourteenth

Amendment right to due process.

Order (Jan. 26, 2007), at 6. The Magistrate Judge later ruled

that Ortiz, through the state post-conviction proceedings, had

thus exhausted his state-court remedies on all of the claims in

his federal habeas petition.

Analysis

The Warden moves for summary judgment on all of Ortiz’s

claims, arguing that some are procedurally defaulted and that all

of them lack merit. Ortiz’s objection does not meaningfully

address these arguments. The court will consider the Warden’s

procedural default defense first. 

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I. Procedural Default

Under the procedural default doctrine, a federal court will

not consider a claim for habeas relief that was rejected by a

state court for failure to comply with that court’s procedural

requirements, Coleman v. Thompson, 501 U.S. 722, 732 (1991),

provided they are “a firmly established and regularly followed

state practice.” Ford v. Georgia, 498 U.S. 411, 423-24 (1991)

(internal quotation marks omitted). But “[t]he mere existence of

a basis for a state procedural bar does not deprive [a federal]

Court of jurisdiction; the state court must actually have relied

on the procedural bar as an independent basis for its disposition

of the case.” Caldwell v. Mississippi, 472 U.S. 320, 327 (1985). 

Furthermore, a federal court will entertain a procedurally

defaulted habeas claim if the petitioner can show cause and

prejudice for the default or actual innocence of the offense of

conviction. Dretke v. Haley, 541 U.S. 386, 393 (2004).

The Warden argues that procedural default bars claims 2 and

4 of Ortiz’s petition, as well as claim 14 insofar as it alleges

a due process violation. Although “a federal court may, in its

discretion, raise procedural default sua sponte,” McCambridge v.

Hall, 266 F.3d 12, 29 (1st Cir. 2001), aff’d on reh’g en banc,

303 F.3d 24 (1st Cir. 2002), “[p]rocedural default is normally a

defense that the State is obligated to raise.” Id. at 28-29

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(citing Trest v. Cain, 522 U.S. 87, 88 (1997)). Thus, the Warden

“bears the burden not only of asserting that a default occurred,

but also of persuading the court that the factual and legal

prerequisites of a default are present.” Pike v. Guarino, 492

F.3d 61, 73 (1st Cir.) (internal quotation marks and ellipse

omitted), cert. denied sub nom. Pike v. Bissonette, 128 S. Ct.

716 (2007). The Warden has carried that burden as to claim 4,

but not as to claims 2 or 14.

Claim 4 asserts that the state committed “prosecutorial

misconduct” by introducing “doctored documents” at trial, viz.,

the “Evidence Examination Request” form for the June 24 incident. 

Ortiz raised this claim in his habeas petition filed with the

superior court, which treated it as one of the “evidentiary

issues” that “were raised or could have been raised by the

petitioner, as part of his appeal.” Superior Court Order at 3-4. 

In rejecting this claim, the superior court applied the New

Hampshire rule that “[w]here the habeas corpus petitioner ‘had

both knowledge of the issue and an opportunity to raise it

properly . . . on the direct appeal, but failed to do so, he has

procedurally waived the issue for collateral review.’” Id. at 3

(citing Avery, 131 N.H. at 143). This rule is “firmly

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 The exception is for ineffective assistance of counsel

claims, as to which this court has determined that the rule is

not regularly applied. Grimard v. Catell, 2006 DNH 011, 21-22;

Merritt v. Warden, 2004 DNH 043, 7-8.

14

established and regularly followed” in the New Hampshire courts.2

Graf v. Warden, 2000 DNH 235, 4. Finally, Ortiz has not shown

cause and prejudice for failing to raise this claim earlier, as

discussed infra in rejecting Ortiz’s allegation that his counsel

was ineffective in not challenging the documents at trial, nor

does (or could he) argue actual innocence. The court therefore

grants summary judgment for the Warden on claim 4 on the basis of

procedural default.

Claim 2, however, is a different story. This claim asserts

that the superior court’s erroneous reasonable doubt instruction

deprived Ortiz of his right to due process under the Fourteenth

Amendment to the federal Constitution. In rebuffing Ortiz’s

challenge to that instruction on direct appeal, the New Hampshire

Supreme Court stated, “Even if we assume without deciding that

the newly adopted plain error rule would apply to this appeal so

as to permit review of [this] argument, we find it has no merit.” 

Supreme Court Order at 2. This ruling, as the Warden notes,

invokes a state procedural rule to deny Ortiz’s claim. See

Obershaw v. Lanman, 453 F.3d 56, 68 (1st Cir. 2006) (affirming

that, when a state court finds forfeiture of a claim so that

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 This court acknowledges that the Magistrate Judge found

otherwise in his initial report and recommendation.

15

review is for plain error only, that ruling imposes procedural

default on the claim), cert. denied, 127 S. Ct. 957 (2007).

The problem, however, is that the claim in the supreme court

was that the reasonable doubt instruction deviated from state

law, while the claim here is that the instruction violated

federal law. A state court’s rejection of a state-law claim

cannot establish procedural default of an analogous federal-law

claim, any more than a petitioner’s invocation of a state-law

claim in state court establishes exhaustion of an analogous

federal-law claim. See Clements v. Maloney, 485 F.3d 158, 166-67

(1st Cir. 2007); accord Appel v. Horn, 250 F.3d 203, 211 (3d Cir.

2001) (ruling that state court’s adjudication of one claim does

not amount to adjudication of another claim triggering

deferential review under § 2254(d), even if the claims have

similar factual bases). Ortiz did not present any federal

constitutional challenge to the reasonable doubt instruction in

his direct appeal.3 He did include that claim in his state

habeas petition, but the Warden does not argue that it was among

the “evidentiary issues” which the superior court found were

defaulted because Ortiz had failed to raise them on direct

appeal; indeed, neither the transcript of the hearing on the

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petition nor the order denying it contains any discussion of the

reasonable doubt instruction. The Warden has not established

procedural default as to claim 2.

Nor has the Warden established procedural default as to

claim 14 insofar as it asserts that the ineffective assistance of

Ortiz’s appellate counsel amounted to a due process violation. 

The Warden argues that Ortiz “never raised this issue in a timely

manner in state court, and the claim would now, in any event, be

procedurally defaulted under state law.” It is true that, where

a “claim was never presented to the state courts,” and the rules

of those courts would have prevented the petitioner from raising

it, a federal court will not hear it in a habeas proceeding. 

Teague v. Lane, 489 U.S. 288, 299 (1989). But claim 14 was

presented to the state courts, in paragraph 48 of Ortiz’s

petition for a writ of habeas corpus in the superior court--which

ruled, in turn, that his “claim with respect to ineffective

assistance of appellate counsel has no merit.” Superior Court

Order at 5-6. Claim 14 is not procedurally defaulted.

II. Absence of any genuine issue of material fact

A. Applicable legal standard

“In civil matters including habeas, evidentiary proceedings

are appropriate only where the party bearing the burden of proof

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. . . starts with enough evidence to create a genuine issue of

fact; otherwise summary judgment is proper.” Bader v. Warden,

N.H. State Prison, 488 F.3d 483, 488 (1st Cir. 2007). Ortiz

bears the burden of proof on all of his claims for habeas relief. 

See id. Under AEDPA, a federal court cannot grant habeas relief

“with respect to any claim that was adjudicated on the merits in

State court proceedings” unless the state decision (1) “was

contrary to, or involved an unreasonable application of clearly

established federal law, as determined by the Supreme Court of

the United States,” or (2) “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(d).

By its terms, this deferential standard of review applies

only to claims that were in fact “adjudicated on the merits” in

the state courts. “If the federal claim was never addressed by

the state court, federal review is de novo.” Pike, 492 F.3d at

67. Though it is arguable, at least, that certain of Ortiz’s

claims were “adjudicated on the merits” in the state courts, the

Warden does not seek the benefit of the deferential AEDPA

standard here. Accordingly, and for the sake of simplicity, the

court will afford all of the claims de novo review.

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B. The Merits

Claim 1: Exclusion of the Witness

Ortiz asserts that he was denied his right to due process

when the superior court refused to allow Rivera, who claimed to

have seen Ortiz’s interaction with the police on June 28, to

testify on his behalf. “Few rights are more fundamental than

that of an accused to present witnesses in his own defense,” but,

“[i]n the exercise of this right, the accused, as is required of

the State, must comply with established rules of procedure and

evidence designed to assure both fairness and reliability in the

ascertainment of guilt and innocence.” Chambers v. Mississippi,

410 U.S. 284, 302 (1973). New Hampshire criminal discovery rules

require a defendant to “provide the state with a list of the

names of the witnesses the defendant anticipates calling at

trial” at least ten days before jury selection, and authorize the

court, among other sanctions, to “prohibit[] the [defendant] from

introducing the evidence not disclosed” in accordance with this

requirement. N.H. Super. Ct. R. 98(C)(2), (J). Ortiz did not

identify Rivera as required by this rule and, as a result, was

barred from offering his testimony at trial.

The validity of such a rule was recognized by the United

States Supreme Court in Taylor v. Illinois, 484 U.S. 400, 413-14

(1988). There, the Court rejected the argument that “the

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sanction of preclusion of the testimony of a previously

undisclosed witness is so drastic that it should never be

imposed,” reasoning that, while “alternative sanctions are

adequate and appropriate in most cases . . . there are instances

in which they would perpetuate rather than limit the prejudice to

the State and the harm to the adversary process.” Id. at 413. 

One such instance, the Court observed, was where “a pattern of

discovery violations is explicable only on the assumption that

the violations were designed to conceal a plan to present

fabricated testimony.” Id. at 414.

Here, the superior court correctly determined that this was

just such an instance. Ortiz did not disclose Rivera’s existence

to defense counsel until just before jury selection and, even

then, did so in a way that led him to conclude that Rivera’s

testimony would be unhelpful anyway. Rivera then failed to

appear at a scheduled meeting with the prosecutor. These

circumstances, combined with Rivera’s friendship with Ortiz’s

mother and the implausibility of Rivera’s account in light of the

other evidence, fairly indicated that the witness’s last-minute

appearance “was willful and motivated by a desire to obtain a

tactical advantage that would minimize the effectiveness of

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 The court in no way suggests that defense counsel was

complicit in such a plan; he appears to have been victimized by

it as much as the court or the prosecution was.

20

cross-examination and the ability to adduce rebuttal evidence,”4

Taylor, 484 U.S. at 415, such as the testimony of numerous other

eyewitnesses which the state argued it had lost as a result of

the delayed disclosure. The exclusion of Rivera’s testimony

under these circumstances did not violate Ortiz’s constitutional

rights. See id. at 416; see also United States v. Russell, 109

F.3d 1503, 1511-12 (10th Cir. 1997). The Warden is entitled to

summary judgment on claim 1.

Claim 2: Reasonable Doubt Instruction

Ortiz claims that the superior court’s reasonable doubt

charge violated his Fourteenth Amendment right to due process. 

The superior court instructed the jury that:

Reasonable doubt is just what the words would

ordinarily imply. The use of the word

‘reasonable’ means simply that the doubt must be

reasonable rather than unreasonable. It must be a

doubt based on reason, not a frivolous doubt, not

a fanciful doubt, not one that can easily be

explained away. Rather, it is a doubt, based on

reason, as remains in your mind after you have

given fair and impartial consideration to all of

the evidence the State offered against the doubt.

Ortiz does not offer even the most cursory explanation as to how

this charge was error. On direct appeal, he argued that the

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 As previously noted, Ortiz argued on direct appeal that

the charge did not comport with state law, but that alleged

discrepancy is of no moment to his federal constitutional claim.

21

instruction led the jury “to believe that the State’s burden of

proof was to rebut the doubt created by the defendant,” but that

is not a fair reading of the quoted language, particularly in the

context of the balance of the court’s instruction, which

repeatedly stated that the State had the burden of proving

Ortiz’s guilt beyond a reasonable doubt.5

 See United States v.

Wallace, 461 F.3d 15, 30 (1st Cir. 2006) (rejecting burdenshifting challenge to similar instructions); United States v.

Whiting, 28 F.3d 1296, 1303-04 (1st Cir. 1994) (similar). The

Warden is entitled to summary judgment on claim 2.

Claim 3: Use of the Dismissed Charge at Sentencing

Ortiz claims that the State committed “prosecutorial

misconduct” by proffering evidence of the charge that was

dismissed before trial, that Ortiz had sold less than one gram of

heroin to the same undercover officer on June 17, 1999, at

Ortiz’s sentencing hearing. This could not have been

“misconduct,” however, because criminal acts for which the

defendant has not been convicted may be considered at sentencing. 

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Williams v. New York, 337 U.S. 241, 244-52 (1949); see also

Nichols v. United States, 511 U.S. 738, 747 (1994).

There is a limitation, of course: no fact not found by a

jury may be used to increase a defendant’s sentence beyond the

statutory maximum, i.e., “the maximum sentence a judge may impose

solely on the basis of the facts reflected in the jury verdict or

admitted by the defendant.” Blakely v. Washington, 542 U.S. 296,

303 (2004) (emphasis omitted). But here, New Hampshire law

provided for a sentence “of not more than fifteen years” for each

sale of less than one gram of heroin by a person, like Ortiz,

with “one or more prior offenses,” N.H. Rev. Stat. Ann. § 318-

B:26, I(c)(5), defined to include convictions for “a violation of

the laws of . . . any state . . . relating to controlled drugs,”

id. § 318-B:27, of which Ortiz had at least one. So, aside from

the fact of the prior conviction, which need not have been found

by a jury, see United States v. Jimenez-Beltre, 440 F.3d 514, 520

(1st Cir. 2006) (en banc), cert. denied, 127 S. Ct. 928 (2007),

each of the facts essential to sentencing Ortiz to no more than

fifteen years on each count was found by the jury. Because Ortiz

received sentences within this range, there was no constitutional

violation in his sentencing. The Warden is entitled to summary

judgment on claim 3.

Case 1:05-cv-00350-JL Document 31 Filed 09/02/08 Page 22 of 27
23

Claims 5-12: Ineffective Assistance of Trial Counsel

Ortiz claims that his trial counsel made a number of errors

that amounted to constitutionally deficient representation. To

prevail on a claim of ineffective assistance, a petitioner must

show both that counsel’s “representation fell below an objective

standard of reasonableness” and “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, 687-94 (1984). This second showing, prejudice to

the defendant, is nearly impossible to satisfy where the evidence

of his guilt is overwhelming. See, e.g., United States v. De La

Cruz, 514 F.3d 121, 140-41 (1st Cir. 2008), petition for cert.

filed, 77 U.S.L.W. 3009 (U.S. June 23, 2008) (No. 07-1602). 

That is the case here. At trial, the state introduced the

uncontroverted testimony of the undercover officer that he had

received heroin--which was introduced into evidence with expert

testimony establishing it as such--from Ortiz in exchange for

money on both June 24 and 28. This version of events was

corroborated by Ortiz’s confession following his arrest, in which

he admitted to traveling to Salem on June 28 to sell heroin to

the officer, whom he also acknowledged having met a few days

earlier. Significantly, he also gave his true name, making an

identity defense exceedingly difficult to mount. Given the

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24

strength of this proof, it simply cannot be imagined that

anything counsel did or failed to do could have changed the

outcome of the trial. See id. at 141 (rejecting ineffective

assistance challenge to drug distribution conviction in light of

clear evidence that defendant had sold drugs as alleged).

In any event, none of the challenged aspects of trial

counsel’s performance fell below an objective standard of

reasonableness: (1) Ortiz claims that counsel failed to object

to the report of the June 24 transaction as “doctored,” but the

purported flaws in the document--that it was not executed until

June 28, and that one line was left blank--do not support any

such challenge; (2) Ortiz claims that counsel presented an

entrapment defense, conceding the defendant’s guilt, but the

record reveals no such defense, and that, even when presenting

the jury nullification argument, counsel was careful to maintain

his client’s innocence; (3) Ortiz faults counsel for not

investigating the case, but he says absolutely nothing about what

that investigation would have uncovered, (4) Ortiz claims that

counsel failed to challenge the state’s case or cross-examine its

witnesses, but the record reveals that counsel cross-examined all

of the state’s percipient witnesses, as well as the criminalist,

in attempting to dispute the defendant’s identity as well as

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6

 Defense counsel did not cross-examine one of the state’s

witnesses, who testified simply that he removed the evidence bags

from the locker and delivered them to the laboratory. Ortiz does

not even attempt to suggest what good would have come out of

cross-examining that perfunctory chain-of-custody testimony.

7

 The complaints--which were later superseded by

indictments that simply charged sales of less than one gram--

alleged that Ortiz had sold twenty bags of heroin on both June 24

and June 28, while the evidence at trial established lesser

quantities, i.e., sixteen and nineteen bags, respectively. The

officer testified that on each occasion Ortiz had agreed to

provide twenty bags but, after accepting payment for that

quantity, actually provided slightly fewer. It would be strange

indeed if a drug dealer could obtain dismissal of charges by

arguing that he had ripped off his buyer in this manner.

25

whether the substances sold were heroin;6

 (5) Ortiz faults

counsel for not moving to dismiss the indictments on the basis of

inconsistent accounts of the number of bags sold in the

complaints filed against him and in the evidence presented at

trial, but these inconsistencies would not have supported such a

motion and ultimately are of no consequence at all;7 (6) Ortiz

claims that counsel “failed to prevent” evidence of the June 17

incident from being used at his sentencing when, in fact, counsel

objected to that evidence, which was admissible anyway, as

previously discussed; (7) Ortiz faults trial counsel for failing

to preserve meritorious issues for appeal, but does not identify

what any of those issues were. The Warden is entitled to summary

judgment on claims 5-12.

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Claims 13-14: Ineffective Assistance of Appellate Counsel

Ortiz’s challenges to the performance of his appellate

counsel are likewise without merit. In claim 13, Ortiz argues

that his counsel “failed to prevent the state from arguing that

Ortiz’s sentence was not enhanced” by the superior court’s

consideration of the charge that had been dismissed. Appellate

counsel did, in fact, argue that the sentence had been enhanced,

but the state supreme court did not reach that issue, ruling that

any enhancement was permissible because “presentence reports may

refer to criminal charges not resulting in conviction.” Supreme

Court Order at 1 (citing New Hampshire v. Tufts, 136 N.H. 517,

519 (1992)). If anything, then, appellate counsel succeeded in

countering the state’s argument that Ortiz’s sentence was not

enhanced (not that counsel’s success is the measure of effective

assistance in any event, see, e.g., Kokoraleis v. Gilmore, 131

F.3d 692, 696 (7th Cir. 1997)); the state supreme court simply

affirmed on an alternative ground.

Finally, Ortiz faults appellate counsel for failing to argue

ineffective assistance of trial counsel to the state supreme

court but, as just discussed, none of Ortiz’s theories of

ineffectiveness has even the slightest merit, so appellate

counsel cannot be blamed for not raising them. See, e.g., Vieux

v. Pepe, 184 F.3d 59, 64 (1st Cir. 1999) (“failing to pursue a

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27

futile tactic does not amount to . . . ineffectiveness”). The

Warden is entitled to summary judgment on claims 13 and 14.

Conclusion

For the foregoing reasons, the Warden’s motion for summary

judgment (document no. 26) is GRANTED. Ortiz’s motion for an

evidentiary hearing (document no. 27) is DENIED. All other

pending motions, if any, are DENIED. The clerk shall enter

judgment accordingly and close the case.

SO ORDERED.

____________________________

Joseph N. Laplante

United States District Judge

Dated: September 2, 2008

cc: Miguel Ortiz, pro se

Stephen D. Fuller, Esq.

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