UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Joseph Sawtell,

Petitioner

v. Civil No. 06-cv-229-SM

Opinion No. 2009 DNH 157

Warden, New Hampshire

State Prison,

Respondent

O R D E R

Joseph Sawtell, a New Hampshire State Prison inmate,

petitions for a writ of habeas corpus. Before the court is

respondent’s motion for summary judgment. Sawtell objects. For

the reasons given, respondent’s summary judgment motion is

granted.

Background

Sawtell was convicted of first-degree murder in the shooting

death of Crystal Sheehan. At trial, the State contended that

Sawtell shot Sheehan to death and then shot himself in an

unsuccessful suicide attempt. State v. Sawtell, 152 N.H. 177,

178-79 (2005). His conviction was affirmed by the New Hampshire

Supreme Court. See id. at 178. 

Sawtell sought habeas relief in this court on four grounds. 

By order dated August 22, 2006, the case was stayed, to give

Case 1:06-cv-00229-SM Document 48 Filed 10/21/09 Page 1 of 11
2

petitioner an opportunity to exhaust the remedies available to

him in state court. He was also directed to file status reports

every ninety days. 

Petitioner attempted to exhaust his state remedies by

applying for a writ of habeas corpus in the New Hampshire

Superior Court. His application raised the same four grounds

raised in the petition previously filed in this court. By order

dated May 10, 2007, the Superior Court explained that it had, in

previous orders, dismissed petitioner’s first three grounds

because they had already been addressed on appeal by the Supreme

Court. The Superior Court denied relief on petitioner’s fourth

ground on the merits. That ground was “whether the State

destroyed potentially exculpatory evidence when it failed to

collect and analyze physical evidence found on the alleged murder

weapon, in violation of [petitioner’s] Fourteenth Amendment right

to due process.” (Report & Recommendation (document no. 33), at

3.)

In his state-court application for habeas relief, petitioner

described his destruction-of-evidence claim as follows:

This evidence [i.e., evidence from the murder weapon]

is critical to the defendant’s case, especially the

stain located in the bore of the handgun. If the

reddish stains were blood, which is quite likely, the

blood located in the bore must be the blood of the last

Case 1:06-cv-00229-SM Document 48 Filed 10/21/09 Page 2 of 11
1 Sawtell argued that because the State had lost the cotton

swab, the State laboratory should not be trusted to test the

alleged murder weapon. (Resp’t’s Mot. Summ. J., Ex. N (Super.

Ct. Order of May 10, 2007).) The court disagreed. (Id.)

3

person who was shot. If the blood was the alleged

victim’s, it would constitute evidence casting

considerable doubt on the State’s assertion at trial

that the defendant shot the alleged victim and then

shot himself.

(Resp’t’s Mot. Summ. J., Ex. F, at 4.) During the state habeas

proceeding, the Superior Court ordered the State to present two

items to the State laboratory for testing: “an alleged cotton

swab containing a brownish substance from the alleged murder

weapon that was referenced in testimony at the time of the

petitioner’s trial [and] the murder weapon itself which had some

stains on it.” (Resp’t’s Mot. Summ. J., Ex. N (Super. Ct. Order

of May 10, 2007).) The State reported that the swab had been

lost. (Id.) Testing by the State laboratory – to which Sawtell

objected1 – revealed that the brownish stain in the bore of the

alleged murder weapon was Sawtell’s blood, and not the victim’s. 

(Id.) 

On June 7, 2007, Sawtell filed a status report with this

court. He attached the Superior Court order denying his state

habeas application. More than ten months later, Sawtell moved to

lift the stay in this case. His motion was denied on grounds

that he had not demonstrated exhaustion of available state

Case 1:06-cv-00229-SM Document 48 Filed 10/21/09 Page 3 of 11
2 The magistrate judge also noted that, ordinarily, he would

recommend dismissal for lack of demonstrated exhaustion, but he

chose, instead, to give petitioner yet another opportunity to

exhaust.

4

remedies. (See Notice of Ruling (document no. 22).) The

magistrate judge pointed out, among other things, that petitioner

produced nothing to demonstrate that the New Hampshire Supreme

Court had been given the opportunity to rule on the claims in his

petition.2 Thereafter, Sawtell was granted a further stay, in

order to first present his claims to the state Supreme Court.

On September 22, 2008, more than sixteen months after the

Superior Court order denying his habeas application, Sawtell

appealed that decision to the New Hampshire Supreme Court. He

raised two issues on appeal:

A. Did the State destroy potentially exculpatory

evidence when it failed to collect and analyze

physical evidence located on the alleged murder

weapon and in the bore of the alleged murder

weapon, thereby violating the appellant’s rights

to due process of law under the state and federal

constitutions? See generally Illinois v. Fisher,

124 S. Ct. 1200 (2004), State v. Dowdle, 148 N.H.

345 (2002).

B. Did the State violate the appellant’s rights to

due process of law under the federal and state

constitutions when it failed to properly address

newly discovered issues in the State Habeas Corpus

proceeding, those issues being the existence of a

not previously disclosed swab, the State’s

inability to locate[ ] the swab, and the further

testing of the murder weapon and the preservation

of any remaining evidence? See generally

Case 1:06-cv-00229-SM Document 48 Filed 10/21/09 Page 4 of 11
5

California v. Trombetto, 467 U.S. 479 (1984),

State v. Reynolds, 131 N.H. 291 (1988).

(Resp’t’s Mot. Summ. J., Ex. N. (Notice of Appeal).) By order

dated September 29, 2008, the state Supreme Court dismissed

Sawtell’s appeal for failure to comply with the thirty-day

deadline established in Supreme Court Rule 7(1).

Sawtell then successfully moved to lift the stay of these

proceedings. After preliminary review, the magistrate judge

determined that Sawtell’s first three grounds for relief were not

cognizable on federal habeas review, and thus reduced the

petition to the single claim stated in ground four:

whether the State destroyed potentially exculpatory

evidence when it failed to collect and analyze physical

evidence found on the alleged murder weapon, in

violation of Sawtell’s Fourteenth Amendment right to

due process.

(Report & Recommendation, at 3.) Accordingly, ground four was

the only claim served on respondent.

After the petition was served, and answered, petitioner

moved to amend. His motion was denied without prejudice to

refiling in compliance with the local rules. On July 6, 2009,

respondent filed the motion for summary judgment now before the

court. The next day, petitioner filed a second motion to amend,

Case 1:06-cv-00229-SM Document 48 Filed 10/21/09 Page 5 of 11
6

which was granted without objection. The amended petition adds a

second ground for relief:

Whether the State violated the defendant’s rights to

due process of law under the state and federal

constitutions when it failed to address newly

discovered issues in the state habeas proceeding, these

issues being the[ ] existence of a not previously

disclosed swab, the State’s inability to locate the

swab, and the further testing of the murder weapon and

the preservation of any remaining evidence.

(First Am. Pet. (document no. 41), at 16.)

Discussion

In his summary judgment motion – which addresses ground four

of the original petition (i.e., ground one of the first amended

petition), but not the new ground for relief introduced in the

subsequently filed amended petition – respondent argues that

petitioner’s claim was procedurally defaulted by the state

Supreme Court’s order dismissing petitioner’s appeal of the

Superior Court’s denial of his state habeas application. He

further argues that even if that claim were not procedurally

defaulted, he is entitled to judgment as a matter of law on the

merits. Petitioner counters that: (1) there was no procedural

default; (2) if there was a procedural default, it should be

excused; and (3) respondent is not entitled to judgment as a

matter of law on the merits.

Case 1:06-cv-00229-SM Document 48 Filed 10/21/09 Page 6 of 11
7

The doctrine of independent and adequate state grounds

“applies to bar federal habeas when a state court declined to

address a prisoner’s federal claims because the prisoner has

failed to meet a state procedure requirement.” Yeboah-Sefah v.

Ficco, 556 F.3d 53, 66 (1st Cir. 2009) (quoting Coleman v.

Thompson, 501 U.S. 722, 730-31 (1991)). However, “only a ‘firmly

established and regularly followed state practice’ may be

interposed by a State to prevent subsequent review . . . of a

federal constitutional claim.” Ford v. Georgia, 498 U.S. 411,

423-24 (1991) (quoting James v. Kentucky, 466 U.S. 341, 348

(1984)) (other citations omitted); see also Burks v. Dubois, 55

F.3d 712, 716 (1st Cir. 1995).

Here, Sawtell’s constitutional claims were, indeed,

procedurally defaulted. The state Supreme Court dismissed

Sawtell’s appeal because it was late, under Rule 7(1), and that

rule is both firmly established and regularly followed. See,

e.g., State v. Gaylor, 158 N.H. 230, 236 (2009) (declining to

accept untimely discretionary appeal under Rule 7(1)(B)); In re

Guardianship of Phuong Phi Thi Luong, 157 N.H. 429, 438 (2008).

A procedural default, however, may be excused under either

of two circumstances: 

Case 1:06-cv-00229-SM Document 48 Filed 10/21/09 Page 7 of 11
3 In the habeas context, the paradigmatic fundamental

miscarriage of justice is the conviction of one who is actually

innocent. See Lynch, 438 F.3d at 45; Walker v. Russo, 506 F.3d

19, 21 (1st Cir. 2007) (citing Murray v. Carrier, 477 U.S. 478,

496 (1986)). 

8

[i]n 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 v. Ficco, 438 F.3d 35, 45 (1st Cir. 2006) (quoting Coleman,

501 U.S. at 750). Here, as in Lynch, “[t]here can be no serious

claim that this petition falls into the ‘fundamental miscarriage

of justice’ category,” 438 F.3d at 45, and petitioner makes no

such claim.3 Accordingly, petitioner’s procedural default can be

excused only if he can show cause and prejudice. He cannot.

Regarding the cause for the sixteen-month delay between the

dismissal of his state habeas application and his appeal of that

decision, Sawtell argues: “Petitioner’s counsel did not initially

seek appeal of the State Court judgment based on his

understanding, albeit erroneous, of how this Court wanted the

petitioner to proceed in this matter.” (Pet’r’s Memo. of Law

(document no. 42-2), at 6.) While Sawtell does not say so

directly, he appears to suggest that the cause for his failure to

Case 1:06-cv-00229-SM Document 48 Filed 10/21/09 Page 8 of 11
9

file a timely appeal was ineffective assistance of counsel. If

so, that argument fails. As the court of appeals explained in

Yeboah-Sefah:

To the extent that Yeboah-Sefah makes a cursory attempt

to attribute “cause” to the ineffective assistance of

his prior post-conviction counsel, this argument is

easily dismissed. Deficiency by counsel rising to the

level of constitutionally ineffective assistance under

Strickland [v. Washington, 466 U.S. 668 (1984)] can

serve as cause to excuse the procedural default of

another habeas corpus claim. See Edwards v. Carpenter,

529 U.S. 446, 451 (2000). However, to the extent that

petitioner superficially makes such a claim, he fails

to develop it properly, and in any event, has not

exhausted it by raising it in the state courts. See

Lynch, 438 F.3d at 46 (explaining that any ineffective

assistance claim must be itself exhausted before it may

be used to excuse a procedural default of another

federal claim). 

556 F.3d at 75-76 (footnote and parallel citation omitted). The

court of appeals further explained:

Alternatively, a lesser error by counsel can also

serve as “cause” for procedural default, but “must

ordinarily turn on whether the prisoner can show that

some objective factor external to the defense impeded

counsel’s efforts to comply with the State’s procedural

rule,” such as, for example, the “factual or legal

basis for a claim [not being] reasonably available to

counsel,” or “some interference by officials.” Murray

v. Carrier, 477 U.S. 478, 488 (1986) (internal

citations omitted).

Id. at 76 n.14 (parallel citations omitted). Here, as in YeboahSefah, petitioner has demonstrated neither exhaustion of a

Strickland ineffective assistance claim in the state courts, nor

Case 1:06-cv-00229-SM Document 48 Filed 10/21/09 Page 9 of 11
10

any objective factor external to the defense that prevented him

from appealing the Superior Court’s denial of his habeas

application. Accordingly, he has not shown cause for his

procedural default. Absent a showing of cause for the procedural

default, there is no legally sufficient basis for excusing it. 

See Lynch, 438 F.3d at 45. Because petitioner’s claims were

procedurally defaulted in the state court, federal habeas relief

is barred. See Yeboah-Sefah, 556 F.3d at 66.

Finally, it is probably worth noting, if only in passing,

that the evidence petitioner characterized at the outset of his

state habeas proceeding as “potentially exculpatory” has since

proven not to be exculpatory. Petitioner argued that the

brownish stain in the bore of the handgun found at the scene was

the blood of the last person shot, and if that blood came from

someone other than him, such evidence would undermine the State’s

theory that he shot the victim first and then turned the gun on

himself. As it turns out, the DNA testing ordered by the state

habeas court established that the stain in the gun bore was

petitioner’s own blood, which is consistent with the State’s

theory of the case. In other words, that evidence is not at all

exculpatory, even under petitioner’s theory. Petitioner cannot

show prejudice from his failure to timely appeal, given the DNA

test results.

Case 1:06-cv-00229-SM Document 48 Filed 10/21/09 Page 10 of 11
11

Conclusion

For the reasons given, respondent’s motion for summary

judgment (document no. 39) is granted. The clerk of the court

shall enter judgment in accordance with this order and close the

case. Anticipating the change to Rule 11 of the Rules governing

Section 2254 and 2255 cases, effective December 1, 2009, a

certificate of appealability is denied.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

October 21, 2009

cc: Thomas J. Gleason, Esq.

Scott F. Gleason, Esq.

Elizabeth C. Woodcock, Esq.

Stephen D. Fuller, Esq.

John C. Vinson, Esq.

Case 1:06-cv-00229-SM Document 48 Filed 10/21/09 Page 11 of 11