UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Gary W. Howard

v. Civil No. 05-cv-277-PB

Opinion No. 2007 DNH 001

Warden, Northern New Hampshire

Correctional Facility

MEMORANDUM AND ORDER

Gary Howard was convicted of five counts of aggravated

felonious sexual assault and one count of second degree assault. 

He was sentenced to consecutive ten-to-twenty-year terms on three

of the aggravated felonious sexual assault charges and suspended

sentences on the remaining charges. Howard is currently

incarcerated in the New Hampshire Correctional Facility (“NHCF”).

On August 4, 2005, Howard filed a petition for a writ of

habeas corpus in this Court, arguing that his Sixth Amendment

right to effective assistance of counsel was violated by his

counsel’s strategic decision to concede all but one element of

the charged crimes. He also argues that the state trial court

violated his right to due process by failing to conduct a 

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1 The facts of the case are drawn primarily from the

findings of the Rockingham County Superior Court in its order

denying Howard’s motion for a new trial. State v. Gary Howard,

00-S-76-81, Rockingham Superior Court (N.H. Aug. 8, 2004). 

Certain details have been filled in by consulting other exhibits.

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colloquy to determine whether he had authorized this strategy. 

Larry Blaisdell, Warden of the NHCF, moves for summary judgment,

arguing that Howard's petition is without merit. For the reasons

set forth below, I grant the Warden's motion.

I. BACKGROUND1

On October 22, 1999, Howard visited the home of his ex-wife,

Tina Howard, in Raymond, New Hampshire to spend the weekend with

his three sons and his twelve-year-old stepdaughter, K.A. Tina

Howard, K.A.’s mother, left shortly thereafter to spend the night

at her boyfriend’s house. Later that evening, and again in the

early morning hours of October 23, 1999, Howard sexually

assaulted K.A.

At approximately 10:00 a.m. on October 23, 1999, K.A.

telephoned her mother, informing her that Howard had raped her. 

Within thirty minutes of the conversation, K.A.’s mother returned

to the residence with officers from the Raymond Police

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Department. K.A. then gave a statement to the police describing

the assault. 

At approximately 3:30 p.m. that afternoon, officers took

K.A. to Dr. Gwendolyn Gladstone, a pediatrician who specializes

in examining children in cases of potential abuse or neglect. 

K.A. described the details of the rape to Dr. Gladstone, who then

examined K.A. and found genital bruising, swelling and bruising

on the back of her head, a lip injury consistent with a bite, and

soreness in the muscles beneath her armpits. Dr. Gladstone also

took photographs of the injuries and prepared a rape kit. At

Howard’s 2000 trial, Dr. Gladstone opined--based on the nature of

K.A.’s genital injuries–-that vaginal penetration had occurred

within 48 to 72 hours of the examination.

Alan Giusti, a forensic DNA examiner with the Federal Bureau

of Investigation (“FBI”), testified at Howard’s trial that he had

tested several items from K.A.’s rape kit, including two vaginal

swabs and an underwear cutting stained with semen. According to

his testimony, the odds that semen he had obtained from the

vaginal swab and the underwear cutting came from a person other

than Howard were one in 15 trillion. K.A. also testified at

trial, providing a detailed account of the assaults.

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Howard did not testify. Moreover, his attorney did not

contest K.A.’s account of the night in question. Rather, he

argued in his opening and closing statements that Howard was too

intoxicated at the time of the assaults to have formed the intent

required for the charged offenses. He also elicited testimony to

that effect from K.A. Specifically, she testified that Howard

was “really, really drunk” on the night of the assaults. 

Outside the presence of the jury on the second day of trial,

the prosecutor asked the court to make a record that Howard had

consented to his counsel’s strategy. The court asked Howard’s

counsel if he had discussed the strategy with Howard, and he

stated that he had done so. The court did not discuss the issue

with Howard. 

On August 11, 2000, after a three-day trial, the jury found

Howard guilty of five counts of aggravated felonious sexual

assault and one count of second degree assault. Howard appealed

his convictions to the New Hampshire Supreme Court, asserting

that the trial court erred by declining to conduct a colloquy

regarding his counsel’s strategy. On April 9, 2003, the New

Hampshire Supreme Court affirmed his convictions.

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II. STANDARD OF REVIEW

Under the Anti-Terrorism and Effective Death Penalty Act of

1996 (“AEDPA”), I may grant Howard's petition for a writ of

habeas corpus only if the adjudication of his claims in state

court: (1) “resulted in a decision that was contrary to . . .

clearly established federal law, as determined by the Supreme

Court of the United States;” or (2) “involved an unreasonable

application” of such law. 28 U.S.C. § 2254(d); see Williams v.

Taylor, 529 U.S. 362, 402-13 (2000) (interpreting § 2254(d));

Williams v. Matesanz, 230 F.3d 421, 424-25 (1st Cir. 2000). In

this context, “clearly established federal law, as determined by

the Supreme Court of the United States” refers to the holdings of

the Supreme Court as of the time of the relevant state court

decision. See Williams, 529 U.S. at 412.

Accordingly, I must first ascertain whether the state

court's decision was contrary to relevant Supreme Court

precedent. See id. at 404-06; Williams, 230 F.3d at 426. A

decision is contrary to Supreme Court precedent if the state

court: (1) applied a rule that contradicts the governing law set

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forth by the Supreme Court; or (2) reached a different result

than the Supreme Court arrived at in a case involving materially

indistinguishable facts. See Williams, 529 U.S. at 404-08;

Williams, 230 F.3d at 424-25; see also Ramdass v. Angelone, 530

U.S. 156, 165-66 (2000) (plurality opinion of Kennedy, J.). In

essence, this initial inquiry requires Howard to show that

“Supreme Court precedent requires an outcome contrary” to that

reached by the state court. Williams, 230 F.3d at 425 (quoting

O'Brien v. Dubois, 145 F.3d 16, 24-25 (1st Cir. 1998)).

If the state court's decision was not contrary to Supreme

Court precedent, I must then ask whether the state court’s

decision involved an “objectively unreasonable” application of

clearly established federal law, as determined by the Supreme

Court. See Williams, 529 U.S. at 407-11; Phoenix v. Matesanz,

233 F.3d 77, 80-81 (1st Cir. 2000); Williams, 230 F.3d at 425. A

decision will not be deemed to be objectively unreasonable solely

because the state court applied the law erroneously or

incorrectly. See Williams, 529 U.S. at 409-12. Rather, to be 

objectively unreasonable, the state court’s application of law

must be so erroneous or incorrect as to fall “outside the 

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universe of plausible, credible outcomes.” Williams, 230 F.3d at

425 (quoting O'Brien, 145 F.3d at 25); see Williams, 529 U.S. at

409-11 (rejecting the “reasonable jurist” standard as

impermissibly subjective).

AEDPA’s deferential standard of review applies only to

claims adjudicated on the merits in the state court proceedings. 

Norton v. Spencer, 351 F.3d 1, 5 (1st Cir. 2003) (citations

omitted). For claims not adjudicated on the merits by the state

court, I apply a de novo standard of review. Id.

III. ANALYSIS

A. Due Process

Howard contends that the state court deprived him of his

Fourteenth Amendment right to due process by failing to conduct a

colloquy regarding his attorney’s strategic decision to concede 

all but one element of the charged offenses. Because the New

Hampshire Supreme Court adjudicated this claim on the merits, the

AEDPA’s deferential standard of review applies.

In cases involving a guilty plea or its functional

equivalent, the trial court must conduct a colloquy with the

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defendant to determine that he has knowingly and voluntarily

waived his rights to a jury trial, to confront his accusers, and

to avoid self-incrimination. See Boykin v. Alabama, 395 U.S.

238, 243-44 (1969); State v. Foote, 149 N.H. 323, 325 (2003). 

Howard, however, has failed to cite any Supreme Court decision

that could reasonably be construed to require a similar colloquy

when a defendant concedes certain elements of a charged offense

at trial in order to focus the jury’s attention on alleged

weaknesses in the prosecution’s case with respect to other

elements. 

Here, Howard’s counsel argued in his opening statement and

closing argument that intoxication prevented Howard from forming

the mental state required for conviction. Given the overwhelming

evidence offered by the prosecution to support its claim that

Howard had committed the charged assaults, and the existence of

at least some evidence to support counsel’s argument that Howard

was too intoxicated to act with the requisite intent, this was a

viable defense strategy. Supreme Court precedent simply does not

require a colloquy between the court and the defendant under such

circumstances. 

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B. Ineffective Assistance of Counsel

Howard also claims that his attorney’s strategy of conceding

all but one element of the charged offenses violated his Sixth

Amendment right to effective assistance of counsel. Because the

state court did not address this argument, I review it de novo.

Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001). 

An ineffective assistance of counsel claim can only be

successful if petitioner shows: “(1) that counsel's

representation ‘fell below an objective standard of

reasonableness,’ and (2) that counsel's deficient performance

prejudiced the defendant.” Roe v. Flores-Ortega, 528 U.S. 470,

476-77 (2000) (quoting Strickland v. Washington, 466 U.S. 668,

688 (1984)). Petitioner bears the burden of showing both

ineffectiveness and prejudice. Scarpa v. DuBois, 38 F.3d 1, 8-9

(1st Cir. 1994).

Here, even if Howard could satisfy the first prong of the

Strickland test, he has not met his burden with respect to the

second prong. To satisfy the prejudice prong, Howard must

establish that “there [was] a reasonable probability that, but

for counsel's unprofessional errors, the result of the proceeding

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would have been different.” Strickland, 466 U.S. at 694. Where

the evidence in a case is overwhelming, an attorney’s “strategy

to concede the other elements of the offense [is] reasonable” and

therefore unlikely to prejudice to a defendant. See Arnold, 126

F.3d at 89. In this case, the evidence that Howard engaged in

the alleged conduct--i.e., the victim’s detailed testimony,

corroborating medical evidence, and the presence of semen on the

vaginal swabs and underwear cutting with a DNA profile matching

Howard’s--was overwhelming. Accordingly, his attorney’s

“‘intent’ defense was appropriately directed at the most

questionable aspect of the Government's case:” proving that

Howard acted with the requisite mental state on the night in

question. See Arnold, 126 F.3d at 89. 

Howard’s argument that this strategy was prejudicial and

that the result of the trial would have somehow been different if

his attorney had contested the other elements of the crimes is

unpersuasive given the record before me. Thus, I hold that

Howard’s ineffective assistance of counsel claim lacks merit.

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IV. CONCLUSION

For the reasons set forth herein, I grant the Warden’s

motion for summary judgment (Doc. No. 23). The clerk is

instructed to enter judgment accordingly.

SO ORDERED.

/s/Paul Barbadoro 

Paul Barbadoro

United States District Judge

January 3, 2007

cc: Gary W. Howard, pro se

Nicholas P. Cort, Esq.

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