UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Michael Leon Hammell

v. Civil No. 06-cv-176-SM

Warden, New Hampshire State Prison

REPORT AND RECOMMENDATION

Pro se petitioner Michael Leon Hammell has filed a petition

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

challenging the constitutionality of his state court conviction

and confinement (document no. 1). 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 Grounds Two, Three and Four. 

The remaining claim, Ground One, fails to state a claim upon

which federal habeas relief may be granted, therefore, I

recommend that it be dismissed.

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Hammell v. Lakes Region Facility, Warden Doc. 4

Dockets.Justia.com
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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).

Background

Convicted on June 23, 2005 by the New Hampshire Superior

Court (Grafton County) of one count of operating a motor vehicle

after being certified a habitual offender, in violation of N.H.

Rev. Stat. Ann. § 262:23, Hammell was sentenced to a term of

imprisonment. He is currently serving his sentence at the New

Hampshire State Prison (“NHSP”). He claims to have filed a

direct appeal with the New Hampshire Supreme Court. In that

appeal, he alleged that the trial court erred under New Hampshire

state law by admitting evidence of his identity as contained in a

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criminal history record and by admitting into evidence a New

Hampshire Department of Safety, Division of Motor Vehicles

(“DMV”) photo of Hammell for identification purposes. The record

is unclear as to the disposition of the direct appeal.

On February 21, 2005, Hammell filed a petition for a writ of

habeas corpus with the New Hampshire Supreme Court in which he

raised various speedy trial claims not relevant to this action. 

On May 3, 2005, the court dismissed the petition without

prejudice to Hammell seeking relief from the superior court in

the first instance. In compliance with the court’s directive,

Hammell filed a habeas corpus petition with the superior court

which was dismissed on January 24, 2006

Subsequently, he filed an appeal with the New Hampshire

Supreme Court. In that appeal and addendum thereto, he raised

the following claims relevant to this action: (1) the arresting

police officer violated Hammell’s Fourth Amendment rights by

subjecting him to an unreasonable search and seizure, including

the confiscation of a DMV photo identity card, and using the

seized evidence to charge him with the offenses of false

information and operating a motor vehicle after being certified a

habitual offender; (2) trial counsel denied Hammell the Sixth

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Amendment right to effective assistance of counsel by failing to 

investigate the search and seizure, failing to move to suppress

the evidence seized and failing to raise the Fourth Amendment

issues at trial; (3) the prosecution violated Hammell’s

Fourteenth Amendment rights by withholding exculpatory evidence;

and (4) the arresting officer violated Hammell’s Fifth Amendment

rights by failing to give him Miranda warnings prior to

conducting a custodial interrogation. His appeal was declined on

April 6, 2006. Hammell now brings the instant petition for

federal habeas corpus relief, alleging four grounds identical to

those raised in his state court appeal.

Discussion

I. Custody and Exhaustion

To be eligible for habeas relief, Hammell must show that he

is in custody and has exhausted all state court remedies (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); see

also Duncan v. Henry, 513 U.S. 364, 365 (1995). Hammell

satisfies the first requirement as he is currently incarcerated

at the NHSP and thus is in custody. For the reasons discussed

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below, he satisfies the exhaustion requirement but only as to

three claims.

A petitioner’s remedies in New Hampshire are exhausted when

the State’s highest court has had an opportunity to rule on the

petitioner’s federal constitutional claims. See Lanigan v.

Maloney, 853 F.2d 40, 42 (1st Cir. 1988), cert. denied, 488 U.S.

1007 (1989) (“habeas corpus petitioner must have presented the

substance of his federal constitutional claim to the state

appellate courts so that the state had the first chance to

correct the claimed constitutional error”); see also Baldwin v.

Reese, 541 U.S. 27 (2004) (citing Duncan, 513 U.S. at 365-66

(requiring petitioner to “fairly present” his claim in the

appropriate state courts, including a state supreme court with

powers of discretionary review, thereby alerting that court to

the federal nature of the claim)); 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 review process.”). 

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Here, Hammell raises four grounds for habeas corpus relief. 

Ground one is noncognizable for purposes of federal habeas

review. Grounds Two, Three and Four are similar to the claims

raised in Hammell’s appeal to the New Hampshire Supreme Court and

therefore appear to be exhausted. 

A. Unreasonable Search and Seizure

(Ground One)

In Ground One, Hammell alleges that the arresting police

officer subjected him to an unreasonable search and seizure,

including the confiscation of his DMV photo identity card, in

violation of his Fourth Amendment rights. He further alleges

that the arresting officer charged him with offenses of false

information and operating a motor vehicle after being certified a

habitual offender based on evidence obtained through the

warrantless search and seizure. 

Habeas corpus relief is not available on a Fourth Amendment

claim where the petitioner had a full and fair opportunity to

raise the claim in state court. See Stone v. Powell, 428 U.S.

465, 494 (1976) (“[W]here the State has provided an opportunity

for full and fair litigation of a Fourth Amendment claim, a state

prisoner may not be granted federal habeas corpus relief on the

ground that evidence obtained in an unconstitutional search or

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seizure was introduced at his trial.”); accord Gandarilla v.

Artuz, 322 F.3d 182, 185 (2d Cir. 2003)(“[T]he merits of a Fourth

Amendment challenge are not reviewable in a federal habeas corpus

proceeding if a defendant has had a full and fair opportunity to

litigate that question in State court. . .”); Cabrera v. Hinsley,

324 F.3d 527, 530-31 (7th Cir. 2003) (same); Graham v. Costello,

299 F.3d 129, 131 (2d Cir. 2002)(same).

Here, the record reveals that Hammell had a full and fair

opportunity to raise his Fourth Amendment claim in the state

court proceedings. The January 24, 2006 superior court order

addressed his claims pertaining to the alleged unreasonable

search and seizure, and the New Hampshire Supreme Court denied

his subsequent appeal. Thus, the state corrective process has

been available to Hammell and has provided him with a full and

fair opportunity to litigate his Fourth Amendment claims. 

Because Hammell’s Fourth Amendment claim is not reviewable in

federal habeas corpus, I recommend that it be dismissed.

B. Ineffective Assistance of Counsel

(Ground Two)

Ground Two alleges that Hammell was denied the Sixth

Amendment right to effective assistance of counsel when his trial

counsel failed to investigate the search and seizure, failed to

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move to suppress the evidence seized that was used to charge

Hammell and failed to raise the Fourth Amendment issue during

trial. Ineffective assistance of trial 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). As evidenced by Hammell’s state court appeal and

addendum thereto, he has presented the federal nature of his

claim to the New Hampshire Supreme Court for review and has cited

to the Sixth Amendment in his state court pleadings. I therefore

conclude that for purposes of preliminary review he has stated a

Sixth Amendment claim premised on the ineffective assistance of

trial counsel.

C. Prosecutorial Misconduct

(Ground Three)

 Construed liberally, Ground Three of the petition alleges

that the prosecution withheld exculpatory evidence in violation

of Hammell’s Fourteenth Amendment rights. To the extent Hammell

alleges that the evidence withheld was material and that a

different result possibly would have occurred had the evidence

been disclosed, I conclude that he has stated a cognizable

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Fourteenth Amendment claim. See Pennsylvania v. Ritchey, 480

U.S. 39, 57 (1987); accord Horton v. O’Dea, 194 F.3d 1312, (6th

Cir. 1999)(unpublished). As evidenced by Hammell’s state court

appeal and addendum thereto, he has presented the federal nature

of his claim to the New Hampshire Supreme Court for review and

has cited to the Fourteenth Amendment in his state court

pleadings. I therefore conclude that for purposes of preliminary

review he has stated a Fourteenth Amendment claim premised on

prosecutorial misconduct.

D. Miranda Violation

(Ground Four)

Construed liberally, Ground Four of the petition alleges

that the arresting police officer conducted a custodial

interrogation without giving Hammell Miranda warnings, in

violation of his Fifth Amendment right to remain silent and

Miranda v. Arizona, 384 U.S. 436 (1966) (holding that police

officers must inform a suspect of his Fifth Amendment privilege

against self-incrimination prior to initiating a custodial

interrogation). As evidenced by Hammell’s state court appeal and

addendum thereto, he has presented the federal nature of his

claim to the New Hampshire Supreme Court for review and has cited

to the Fifth Amendment in his state court pleadings. Without

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commenting on the merits of the claim, I conclude that for

purposes of preliminary review he has alleged sufficient facts to

state a cognizable Fifth Amendment claim.

Conclusion

For the reasons stated above, and by separate order issued

simultaneously herewith, I recommend that the petition be served

on the respondent as to Grounds Two, Three and Four. Because the

remaining claim, Grounds One, fails to state a constitutional

claim upon which habeas corpus relief may be granted, I recommend

that it be dismissed.

If this Report and Recommendation is approved, the claims as

identified herein will be considered for all purposes to be the

claims raised in the complaint. If the plaintiff disagrees with

the identification of the claims herein, he must do so by

objection filed within ten (10) days of receipt of this Report

and Recommendation, or he must properly move to amend the

complaint. 

Any objections to this Report and Recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

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

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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: May 26, 2006

cc: Michael Leon Hammell, pro se

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