UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Gary W. Howard

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

Warden, Northern New Hampshire

Correctional Facility

REPORT AND RECOMMENDATION

Pro se petitioner Gary W. Howard amends his petition for a

writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254,

challenging the constitutionality of his state court conviction

and confinement (document no. 7). The petition is before me for

preliminary review. See Rule 4 of the Rules Governing Section

2254 Proceedings (“Habeas Rules”) (requiring initial review to

determine whether the petition is facially valid and may be

served); United States District Court for the District of New

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

preliminarily review pro se pleadings). 

For the reasons stated below, I recommend that the petition

be served on the respondent as to Ground One of the amended

petition. The remaining claims are not cognizable under federal

habeas corpus review, therefore, I recommend they be dismissed.

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Background

Convicted of five counts of aggravated felonious sexual

assault and one count of second degree assault by the New

Hampshire Superior Court (Rockingham County) on August 11, 2000,

Howard was sentenced to a term of imprisonment. He is currently

serving his sentence at the Northern New Hampshire Correctional

Facility (“NCF”). Howard filed a motion for new trial with the

superior court on the grounds of newly discovered evidence of the

victim’s recantation of certain testimony. Deeming the victim’s

recantation not credible, the trial court denied the motion on

August 5, 2004 and subsequently denied Howard’s motion for

reconsideration on July 25, 2005. 

Howard filed two notices of appeal with the New Hampshire

Supreme Court. Although he has not provided copies of the

appeals, he has provided copies of the two respective dispositive

orders and his reply brief. In the first appeal, Howard alleged

that he was denied due process when the trial court denied him a

colloquy to determine whether trial counsel was ineffective and

whether he consented to counsel’s strategy of admitting the

charged acts. See State of New Hampshire v. Gary Howard, No.

2002-0068 (N.H. April 9, 2003). Citing to both state and federal

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precedent, he argued that “[a]n accused is deprived of effective

assistance of counsel, his right against self-incrimination and

due process when his own lawyer admits his guilt.” Id. During

opening and closing statements, defense counsel did not contest

the victim’s description of the charged acts but instead focused

on Howard’s extreme intoxication. See id. In his reply brief,

Howard argued that while defense counsel discussed trial strategy

with him, counsel failed to obtain his express consent to the

strategy of conceding guilt. 

On April 9, 2003, the New Hampshire Supreme Court denied

Howard’s appeal, reasoning that “[b]ecause the defendant’s trial

counsel did not admit his guilt to all elements necessary for

conviction, his statements were not the functional equivalent of

a guilty plea.” Id. (citing State v. Jaroma, 139 N.H. 611, 615

(1995)). The court concluded that “[a]bsent some affirmative act

by the defendant, the trial court was therefore not required to

conduct a colloquy, but rather could rely upon the

representations made by trial counsel that he had discussed the

strategy with his client.” In the second appeal, Howard broadly

alleged that the victim recanted testimony. The New Hampshire

Supreme Court denied the appeal without opinion on October 13,

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2004.

By order of August 11, 2005, I instructed Howard to amend

his petition to identify the federal nature of the four claims

raised and to demonstrate exhaustion of state remedies. He now

amends Grounds One and Two of the petition and asserts that he

has identified the federal nature of the four claims raised and

has demonstrated the requisite exhaustion. 

Standard of Review

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

pleadings liberally, see Ayala Serrano v. Gonzalez, 909 F.2d 8,

15 (1st Cir. 1990)(following Estelle v. Gamble, 429 U.S. 97, 106

(1976)), treating all well-pleaded factual allegations as true

and drawing all reasonable inferences in the litigant’s favor,

see Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996)(explaining

that all “well-pleaded factual averments,” not bald assertions,

must be accepted as true). This review ensures that pro se

pleadings are given fair and meaningful consideration. See

Eveland v. Director of CIA, 843 F.2d 46, 49 (1st Cir. 1988).

Discussion

I. Custody and Exhaustion

To be eligible for habeas relief, a petitioner must show

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

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

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

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

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

currently incarcerated at the NCF. He also satisfies the

exhaustion requirement but only as to Ground One of the amended

petition.

“Barring certain exceptional circumstances not present here,

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

constitutional claims in a federal forum unless and until the

substance of those claims has been fairly presented to the

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

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

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

is designed to provide state courts with an initial opportunity

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

federal rights. See O’Sullivan v. Boerckel, 526 U.S. 838, 845

(1999) (“Because the exhaustion doctrine is designed to give the 

state courts a full and fair opportunity to resolve federal

constitutional claims before those claims are presented to the

federal courts, we conclude that state prisoners must . . .

[invoke] one complete round of the State’s established appellate

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review process.”); accord Duncan v. Henry, 513 U.S. 364, 365-66

(1995); Picard v. Connor, 404 U.S. 270, 275-76 (1971). 

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

prisoner must ‘fairly present’ his claim in each appropriate

state court (including a state supreme court with powers of

discretionary review), thereby alerting that court to the federal

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

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

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

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

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

adequately present his federal constitutional claims to the New

Hampshire Supreme Court, he is precluded from seeking relief in

federal court.

II. Habeas Corpus Claims

Howard raises four grounds for federal habeas corpus relief.

Ground One is similar to the claim raised in his appeal to the

New Hampshire Supreme Court and, therefore, appears to be

exhausted. The remaining three grounds are not cognizable for

purposes of federal habeas review.

A. Cognizable Claims

Construed liberally, Ground One of the amended petition

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1Although Howard broadly alleges a violation of the Fifth

Amendment privilege against self-incrimination, his allegations

are conclusory. Accordingly, I construe Ground One to allege

only claims of ineffective assistance of counsel and due process.

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alleges that Howard was denied the Sixth Amendment right to

effective assistance of counsel when trial counsel conceded his

guilt without first having obtained his express consent. Ground

One further alleges that Howard was denied due process when the

trial court denied him a colloquy to determine whether trial

counsel was ineffective and whether Howard consented to counsel’s

strategy of conceding guilt.1

Ineffective assistance of counsel, as guaranteed by the

Sixth Amendment, clearly is a constitutional ground for habeas

relief. See Strickland v. Washington, 466 U.S. 668, 687-88

(1984)(holding that the Sixth Amendment guarantees criminal

defendants the right to effective assistance of counsel at

trial). Under certain circumstances, defense counsel’s

concession of his client’s guilt may constitute ineffective

assistance. See also, United States v. Holman, 314 F.3d 837, 843

(7th Cir. 2002)(holding that attorney’s concession of client’s

guilt without any indication of the client’s consent to the

strategy is deficient conduct for purposes of Strickland);

Frascone v. Duncan, No. 01 CV 5924GBD, 2005 WL 1404791, at *2

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(S.D.N.Y June 14, 2005)(where concession of guilt in counsel’s

closing argument was not over the expressed and unequivocal

objections of petitioner, petitioner bears burden of showing that

he in fact objected)(citing Dean v. Clinton Correctional

Facility, 93 F.3d 58, 62 (2d Cir. 1996)). I conclude therefore

that Howard has alleged a cognizable Sixth Amendment claim for

purposes of federal habeas review. 

While denial of an on-the-record inquiry by the trial court

to determine whether a criminal defendant has consented to an

admission of guilt during closing arguments represents the

preferred practice, it may not rise to the level of a due process

violation. Id. at 842. For purposes of preliminary review,

however, Howard at least has raised a colorable due process

claim. Attached to Howard’s amended petition is an April 9, 2003

order by the New Hampshire Supreme Court, demonstrating that he

presented the above claims to that court for review. Without

commenting on the merits of the above claims, I conclude that

Howard and demonstrated exhaustion for purposes of federal habeas

review.

B. Noncognizable Claims

Construed liberally, Ground Two alleges that the trial court

abridged Howard’s right to due process when it denied him a new

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trial based on newly discovered evidence, namely the post-trial

recantations by the victim-witness. The victim, Howard’s former

stepdaughter, recanted her testimony and allegedly may have been

coerced by the prosecution to present perjured testimony. 

To allege a federal due process violation arising from the

victim’s recantation of trial testimony and the existence of

newly discovered exculpatory evidence, a petitioner must allege

an independent constitutional violation. See Herrera v. Collins,

506 U.S. 390, 400 (1993)(quoting Townsend v. Sain, 372 U.S. 293,

317 (1963) (“A claim ‘based on newly discovered evidence ha[s]

never been held to state a ground for federal habeas relief

absent an independent constitutional violation occurring in the

underlying state criminal proceeding.’” See also Sanders v.

Sullivan, 863 F.2d 218, 225 (2d Cir. 1988) (“Only recantations of

material testimony that would most likely affect the verdict rise

to the level of due process violation, if a state, alerted to the

recantation, leaves the conviction in place.”); Reddick v. Haws,

120 F.3d 714 (7th Cir. 1997)(“To establish that sexual assault

conviction was obtained in derogation of due process, in light of

victim’s subsequent recantation, habeas corpus petitioner had to

prove that prosecution made knowing use of perjured testimony.”). 

Howard has not sufficiently alleged, and the record does not

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demonstrate, that the prosecution made knowing use of perjured

testimony. Because Howard has not alleged any other independent

constitutional violation in support of his claim, I recommend

dismissal of Ground Two.

Ground Three is unintelligible but appears to reiterate the

allegations in Ground Two. Because I have recommended dismissal

of Ground Two I also recommend dismissal of Ground Three. Ground

Four simply alleges that the victim admitted to being sexually

active. Because Ground Four clearly is not premised upon any

violation of federal law, it is not cognizable under federal

habeas review. See Levasseur v. Pepe, 70 F.3d 187, 194 n.5 (1st

Cir. 1995) (observing that Section 2254 limits habeas review of a

state prisoner’s conviction to violations “of the Constitution or

laws or treaties of the United States.”) Accordingly, I

recommend dismissal of Ground Four.

Conclusion

 For the reasons stated above, I order the petition

served on the respondent as to Ground One. The remaining claims

fail to state a constitutional claim upon which habeas corpus

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

The claims identified in this report and recommendation will

be considered for all purposes to be the claims raised in the

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petition. If the petitioner disagrees with the identification of

the claims herein, he must do so by objection filed within ten

(10) days of receipt of this order, or he must properly move to

amend the petition.

Any objection to this report and recommendation must be

filed within ten days of receipt of this notice. Failure to file

an objection within the specified time waives the right to appeal

the district court’s order. See Unauthorized Practice of Law

Committee v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992); United

States v. Valencia-Copete, 792 F.2d 4,6 (1st Cir. 1986).

______________________________

James R. Muirhead

United States Magistrate Judge

Date: October 28, 2005

 cc: Gary Howard, pro se

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