UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Joseph Haniffy,

Petitioner

v. Civil No.08-cv-268-SM

Opinion No. 2010 DNH 068

Richard Gerry, Warden,

New Hampshire State Prison,

Respondent

O R D E R

Respondent again moves for summary judgment on Joseph

Haniffy’s petition for a writ of habeas corpus. 42 U.S.C. §

2254. Given the court’s order on respondent’s first motion for

summary judgment (document no. 16), Haniffy’s claims are now

limited to two: 1) denial of due process related to evidentiary

rulings, and 2) prosecutorial misuse of evidence admitted for a

limited purpose.

Respondent first contends that the State did not violate the

New Hampshire Rules of Evidence (or their federal counterparts)

when it impeached two witnesses it called at trial — Haniffy’s

codefendants Christopher Armstrong and Cassidy Coburn. Whether

or not the New Hampshire Supreme Court correctly applied the

rules of evidence (state or federal) is somewhat beside the

point. To be entitled to summary judgment, respondent must

demonstrate the absence of a federal constitutional violation. 

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That requires some discussion of the relationship between state

evidentiary rules and federal constitutional requirements. See

Abrante v. St. Amand, 595 F.3d 11, 19 (1st Cir. 2010). In any

event, the relevant issue here is not whether the New Hampshire

Supreme Court properly applied the New Hampshire Rules of

Evidence; the issue is whether the admitted evidence so infused

Haniffy’s trial with inflammatory prejudice that a fair trial was

not afforded him. See id. (quoting Petrillo v. O’Neill, 428 F.3d

41, 44 n.2 (1st Cir. 2005)). Respondent’s motion and memorandum

of law fail to address that dispositive question.

Respondent also argues that Haniffy waived his claims for

relief with respect to prosecutorial argument that relied upon

evidence for a purpose for which it was not admitted. A habeas

petitioner can fail to exhaust a claim by waiving it. Or, a

claim may be procedurally defaulted when a state court determines

that a criminal defendant has waived it. But saying that a claim

has been “waived,” without discussing exhaustion or procedural

default, does not advance a meritorious argument.1

1 Moreover, the factual basis for respondent’s argument on

Ground Two is not clear. At one point, respondent asserts: “The

State’s closing argument drew a single objection from the

defense.” (Resp’t’s Mem. of Law (document no. 18-1), at 12.) On

the same page, respondent says: “Because defense did not object

to the State’s closing argument . . .” (Id.). One page later,

respondent states: “Since the State’s closing argument drew only

one objection . . .” (Id. at 13.)

2

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As the court noted in denying respondent’s previous motion

for summary judgment, it does not appear likely that petitioner

is entitled to federal habeas relief. On the other hand, when

moving for summary judgment, it is respondent’s obligation to

demonstrate the bases for the relief he seeks. Respondent’s

motion for summary judgment (document no. 18) does not do so, and

is denied, without prejudice.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

April 12, 2010

cc: Terry L. Ollila, AUSA

Kevin E. Sharkey, Esq.

3

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