UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Joseph Haniffy,

Petitioner

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

Opinion No. 2010 DNH 090

Richard Gerry, Warden,

New Hampshire State Prison,

Respondent

O R D E R

Respondent moves for summary judgment on Joseph Haniffy’s

petition for a writ of habeas corpus. 28 U.S.C. § 2254. Haniffy

objects. For the reasons given, respondent’s motion for summary

judgment is granted.

Background

Haniffy is currently serving a state-imposed sentence of

incarceration for aggravated felonious sexual assault.

Before trial, Haniffy filed a motion in limine seeking to

exclude the testimony of codefendants Cassidy Coburn and

Christopher Armstrong. Generally speaking, Haniffy was concerned

that the State would call Coburn and Armstrong to testify merely

to impeach them with hearsay evidence for the improper purpose of

establishing the victim’s alleged lack of consent to sexual

activity through evidence not admissible for that substantive

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purpose. He based his motion on the following proposition of

law:

While [a witness’s] prior inconsistent statement

may be admitted to attack [his] credibility even if the

statement tends to directly inculpate the defendant,

the State may not use a statement under the guise of

impeachment for the primary purpose of placing before

the jury otherwise inadmissible substantive evidence. 

See United States v. Hogan, 763 F.2d 697, 702 (5th Cir.

1985). This limitation prevents the State from using

impeachment by prior inconsistent statement as a mere

subterfuge to avoid the hearsay rule. See Id.

(Resp’t’s First Mot. Summ. J. (document no. 14), Ex. B, at A62

(quoting State v. Soldi, 145 N.H. 571, 574 (2000)). Haniffy did

not explicitly advance a federal constitutional claim before the

state court, and the authorities on which he relied, i.e., Soldi

and Hogan, were not based upon federal constitutional law. See

Soldi, 145 N.H. at 573-74; Hogan, 763 F.2d at 701-03.1 The trial

court denied Haniffy’s motion to exclude, but ordered that

“before the State will be permitted to attempt to impeach either

co-defendant, with their prior statements or any other evidence,

the parties shall be required to approach the bench.” (Resp’t’s

First Mot. Summ. J., Ex. B, at A68.)

1 Haniffy cited three other federal cases in his motion in

limine (see Resp’t’s First Mot. Summ. J., Ex. B, at A63), but

like Hogan, those cases applied the Federal Rules of Evidence,

not the federal constitution. See United States v. GomezGallardo, 915 F.2d 553, 555-56 (9th Cir. 1990); United States v.

Crouch, 731 F.2d 621, 623-24 (9th Cir. 1984); United States v.

Morlang, 531 F.2d 183, 188-90 (4th Cir. 1975).

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During a chambers conference on the fourth day of trial, the

trial judge instructed the prosecutor on how he was to examine

Coburn and Armstrong:

This is what you’re going to be allowed to do. You

highlight whatever portions of this transcript you want

to deal with. You can show it to him and ask him what

he meant by that. I don’t want it read to the jury. I

don’t want it read out loud. You may show it to him

and ask him to read it to himself and ask him to

explain what he meant by that. This case is not coming

in through improper hearsay, David. It’s just not

going to happen.

(Trial Tr., Day 4, at 34.) The State’s examination of Coburn

drew numerous objections from Haniffy’s counsel. At one point,

the trial judge appears to have agreed with defense counsel that

the prosecutor was ignoring his instructions on how to examine

Coburn in an attempt to draw repeated objections. (Id. at 97.) 

The judge went on to tell the prosecutor that he was “very close

to drawing a mistrial.” (Id.) The State’s direct examination of

Armstrong went more smoothly, but did draw at least one

objection, which was sustained. (Id. at 157-58.) In addition,

during the State’s closing argument, defense counsel objected to

the manner in which the prosecutor referred to Coburn’s and

Armstrong’s out-of-court statements. (Id., Day 6, at 54-55.) As

noted above, Haniffy was eventually convicted.

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Haniffy appealed his conviction. His notice of appeal lists

ten issues, including these:

1. Did the Court err in denying the defendant’s Motion

in Limine #1 (Testimony of Armstrong and Coburn)?

2. Did the Court err in allowing the State to ask

questions of the co-defendants that were designed to

elicit inadmissible hearsay?

(Status Report, Attach. 4 (document no 5-4), at 3.) 

In his appellate brief, Haniffy listed three issues, only

the third of which (“issue three”) is relevant here: “Whether the

trial court erred in denying [his] motion to preclude the

testimony of the co-defendants?” (Resp’t’s First Mot. Summ. J.,

Ex. A, at 1.) While the section of Haniffy’s brief devoted to

issue three is labeled “THE TRIAL COURT ERRED IN DENYING

HANIFFY’S MOTION TO PRECLUDE THE TESTIMONY OF THE CO-DEFENDANTS”

(id. at 27), the brief itself discusses the denial of the motion

in limine and the manner in which the trial was conducted,

including both the prosecutor’s direct examinations of Coburn and

Armstrong and his closing argument. But, like his motion in

limine and his notice of appeal, Haniffy’s appellate brief does

not make a federal constitutional claim. Its table of

authorities lists no federal constitutional provisions (Resp’t’s

First Mot. Summ. J., Ex. A, at ii), and the only federal cases it

cites, Hogan and Morlang (id. at 33-34), resolved issues arising

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under the Federal Rules of Evidence, not the federal

constitution. Haniffy’s legal analysis with respect to issue

three begins in the following way: “Under New Hampshire Rule of

Evidence 607, a party may impeach its own witness. The rule,

however, ‘gives the trial court discretion to determine whether

to admit evidence under the rule, in part to protect timid

witnesses against overzealous prosecutors.’ ” (Resp’t’s First

Mot. Summ. J., Ex. A, at 32 (quoting Soldi, 145 N.H. at 573)). 

In other words, the legal argument in Haniffy’s appellate brief

relies exclusively on the New Hampshire Rules of Evidence.

The New Hampshire Supreme Court affirmed Haniffy’s

conviction in an unpublished order. (See Status Report, Attach.

6 (document no. 5-6).) The court characterized Haniffy’s appeal

as arguing “that the trial judge made three errors regarding the

admissibility of evidence” (id. at 1), and its decision rested

exclusively on its interpretation of the New Hampshire Rules of

Evidence as set out in its earlier decision in Soldi (see id. at

2). 

Haniffy’s petition for a writ of habeas corpus now consists

of the following two claims: 

1. Haniffy’s due process and fair trial rights,

guaranteed by the Sixth and Fourteenth Amendments,

were violated when the Court allowed his

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codefendants to testify at his trial, which

allowed the prosecution to improperly introduce

the substance of hearsay statements of the

codefendants into evidence.

2. Haniffy’s due process and fair trial rights,

guaranteed by the Sixth and Fourteenth Amendments,

were violated when the trial court allowed the

prosecution to repeatedly violate its instructions

regarding use of the codefendants’ hearsay

statements at trial.

(Order (document no. 9), at 8-9.) While it is not entirely

clear, the court assumes that Ground One tracks issue one in

Haniffy’s state notice of appeal and issue three in his brief,

and thus pertains to the trial court’s denial of his Motion in

Limine #1. The court further assumes that Ground Two pertains

both to the prosecutor’s examination of Coburn and Armstrong and

to his references to that testimony in his closing argument.

Discussion

A. Ground One

Respondent says that Ground One is unexhausted, was

procedurally defaulted in the state courts, and fails on the

merits. Haniffy does not address the issue of procedural

default, other than by arguing that his claims were properly

exhausted. Respondent’s first two arguments are meritorious, and

dispositive.

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Federal habeas corpus relief may not be granted unless a

petitioner’s state-law remedies have been exhausted. See Janosky

v. St. Amand, 594 F.3d 39, 50 (1st Cir. 2010) (citing 28 U.S.C. §

2254(b)(1)(A); Picard v. Connor, 404 U.S. 270, 275 (1971)). “The

exhaustion doctrine honors hallowed principles of federal-state

comity. It serves to ensure that the state courts are

sufficiently apprised of a federal claim to have a meaningful

opportunity to address that claim.” Id. (quoting RaShad v.

Walsh, 300 F.3d 27, 41 (1st Cir. 2002)). Unexhausted claims are

subject to dismissal. See Janosky, 594 F.3d at 51.

“In order to exhaust a federal claim, a petitioner must

present that claim ‘fairly and recognizably’ to the state

courts.” Id. at 50 (quoting Adelson v. DiPaola, 131 F.3d 259,

262 (1st Cir. 1997)). “In other words, he must have tendered the

claim ‘in such a way as to make it probable that a reasonable

jurist would have been alerted to the existence of the federal

question.’ ” Id. (quoting Scarpa v. Dubois, 38 F.3d 1, 6 (1st

Cir. 1994)).

A petitioner will satisfy the fair presentment

requirement if he does any of the following in his

[notice of appeal]: (i) cites a provision of the

federal Constitution upon which the relevant claim

rests; (ii) advances the claim in a manner that alerts

the state court to its federal nature; (iii) cites

federal constitutional precedents in support of the

claim; or (iv) explicitly alleges a violation of a

right specifically protected in the federal

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Constitution. Clements [v. Maloney], 485 F.3d [158,

162 [(1st Cir. 2007)]. In some situations, a

petitioner may satisfy the presentment requirement by

citing to state-court precedents, which themselves rely

on federal constitutional law. Id. Similarly, he may

achieve that result by asserting a state claim that is,

for all practical purposes, indistinguishable from a

federal constitutional claim. Id.

Janosky, 594 F.3d at 50. On the other hand, however, “[m]aking a

‘somewhat similar state-law claim’ is insufficient” to exhaust a

federal constitutional claim. Rivera v. Goode, 540 F. Supp. 2d

582, 591 (E.D. Pa. 2008) (quoting McCandless v. Vaughn, 172 F.3d

255, 261 (3d Cir. 1999)).

Haniffy did not present the constitutional claim described

in Ground One to the New Hampshire Supreme Court in any of the

ways described in Janosky. Rather, like the ALOFAR in Janosky,

which claimed violations of state evidentiary rules but not the

Sixth Amendment, see 594 F.3d at 50, Haniffy’s notice of appeal,

and his state appellate brief, presented only a claim that the

trial court violated the New Hampshire Rules of Evidence by

admitting the testimony of Coburn and Armstrong — it made no

federal constitutional claim. Accordingly, the federal

constitutional claim in Ground One has not been exhausted. 

28 U.S.C. § 2254(b)(2)(A). 

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Haniffy does not claim to have met the presentment

requirement in any of the ways described in Janosky. Rather, he

relies solely on the discussion of exhaustion in the Magistrate

Judge’s October 13, 2009, preliminary review order (document no.

9). That is not enough. “[F]ailure to exhaust is an affirmative

defense under the PLRA.” Jones v. Bock, 549 U.S. 199, 216. 

Respondent is entitled to raise and prove failure to exhaust,

notwithstanding the Magistrate Judge’s order on preliminary

review. That order was necessarily issued before respondent was

served; it cannot have res judicata effect. The situation might

be different if habeas petitioners were required to plead and

demonstrate exhaustion in their petitions, but that is not the

law. See Jones, 549 U.S. at 211-17. Accordingly, Haniffy’s

reliance on the Magistrate Judge’s order is unavailing.

Because the claim Haniffy raises in Ground One has not been

exhausted, Ground One must be dismissed. See Janosky, 594 F.3d

at 51.

Review of Ground One is also precluded because the

constitutional issue raised therein was procedurally defaulted in

the state courts. See id. at 44 (“Federal habeas review of a

particular claim is precluded in circumstances in which a state

prisoner has defaulted on that claim in state court by virtue of

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an independent and adequate state procedural rule.”) (citation

omitted). “[A] claim is procedurally defaulted if it was not

presented to the state courts and it is clear that those courts

would have held the claim procedurally barred.” Pike v. Guarino,

492 F.3d 61, 73 (1st Cir. 2007) (citing Coleman v. Thompson, 501

U.S. 722, 735 n.1 (1991); Perruquet v. Briley, 390 F.3d 505, 514

(7th Cir. 2004)). 

As discussed above, the constitutional claim described in

Ground One of Haniffy’s petition was not presented to the New

Hampshire state courts. Moreover, because Haniffy did not raise

that claim in the trial court, did not raise it in his notice of

appeal, and did not address it in his supreme court brief, the

New Hampshire Supreme Court would have held that claim to be

procedurally barred had he attempted to press it during the

appeal process. 

In the first instance, Haniffy did not object to the

admission of testimony from Coburn and Armstrong, in

constitutional terms, in the trial court. For that reason, the

New Hampshire Supreme Court would not have reviewed that issue,

even if Haniffy had listed it in his notice of appeal and briefed

it. “The general rule in [New Hampshire] is that a

contemporaneous and specific objection is required to preserve an

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issue for appellate review.” State v. Ericson, 159 N.H. 379, 386

(2009) (quoting State v. Winstead, 150 N.H. 244, 246 (2003))

(emphasis added). Thus, the New Hampshire Supreme Court “will

not review any issue that the defendant did not raise before the

trial court.” State v. Bell-Rogers, 159 N.H. 178, 182 (2009)

(quoting State v. Blackmer, 149 N.H. 47, 48 (2003)). 

Here, it is clear that Haniffy objected to the State’s

elicitation of testimony from Coburn and Armstrong in his Motion

in Limine #1. But he only objected to the admission of evidence

barred by the New Hampshire hearsay rule; he never argued that

introduction of that evidence would violate his rights under the

federal constitution. That objection was not sufficient, under

New Hampshire law, to preserve the claim Haniffy makes in Ground

One, because “[t]he objection must state explicitly the specific

ground of objection.” Ericson, 159 N.H. at 386 (emphasis added). 

Ericson provides a useful example of the degree of

explicitness and specificity necessary to preserve an issue for

appellate review. In that case:

the defendant objected [at trial] on the ground that to

allow the victim to hold Silly Putty while testifying

would make her appear “more helpless than she might

otherwise be evaluated by the jury,” and that the State

had failed to establish a “compelling need” to allow

her to hold the Silly Putty. The defendant never made

reference to “due process,” “fair trial,” “right to

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confront,” or any other phrase that might have alerted

the trial court that he intended to raise a

constitutional argument. Nor did he ever identify a

constitutional provision that was allegedly violated.

Id. at 386. The New Hampshire Supreme Court held that the

defendant in Ericson failed to preserve his federal

constitutional claim for appellate review. Id. The New

Hampshire Supreme Court has also held that an objection that a

witness’s testimony constituted inadmissible hearsay was not

sufficient to preserve, for appellate review, a Confrontation

Clause claim under Crawford v. Washington, 541 U.S. 36 (2004). 

See State v. Legere, 157 N.H. 746, 764 (2008). 

Like the defendants in Ericson and Legere, Haniffy objected

at trial, but gave the trial court no indication, either express

or implied, that his objection had a federal constitutional

dimension. The New Hampshire Supreme Court would, if presented

with the question, deem Haniffy’s constitutional claim to have

been forfeited. See State v. Dodds, 159 N.H. 239, 244 (2009)

(“Any objection not raised at trial is deemed waived.”) (citing

State v. Ryan, 135 N.H. 587, 88 (1992)).

Moreover, even if Haniffy had adequately preserved his

constitutional claim in the trial court, and properly briefed it,

the Supreme Court would not have addressed it, because he did not

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raise the issue in his notice of appeal. In New Hampshire, the

Supreme Court will not review an issue not raised in the

appellant’s notice of appeal. See N.H. Ball Bearings, Inc. v.

Jackson, 158 N.H. 421, 436 (2009) (citing Guyotte v. O’Neill, 157

N.H. 616, 623 (2008)); Dupont v. N.H. Real Estate Comm’n, 157

N.H. 658, 662 (2008) (“We decline to address both arguments,

however, because these issues were also not raised in the notice

of appeal. As a result, the issues were not properly preserved

and are deemed waived.”) (citing State v. Martin, 145 N.H. 313,

315 (2000)). 

Finally, Haniffy also failed, completely, to develop or even

identify a federal constitutional claim in his appellate brief. 

So, even if he had properly preserved that claim at trial, and

raised it in his notice of appeal, the New Hampshire Supreme

Court, if asked to rule on it, would have deemed it forfeited or

waived. See State v. Kelly, 159 N.H. 390, 394 (2009) (“To the

extent that the defendant implied at oral argument that the

process he received at the deferred sentence hearing was

constitutionally infirm, he has not briefed this argument, and we

deem it waived.”) (citing State v. Fortier, 146 N.H. 784, 792

(2001)); see also Blackmer, 149 N.H. at 49 (citing State v.

Chick, 141 N.H. 503, 504) (1996) (passing reference to

constitutional claim renders argument waived); Keenan v. Fearon,

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130 N.H. 494, 499 (1988) (“off-hand invocations” of

constitutional rights supported by neither argument nor authority

warrant no extended consideration)). Here, Haniffy’s state brief

provided neither argument nor authority for a federal

constitutional claim and, indeed, did not even include a passing

reference or an off-hand invocation. 

At three different points, i.e., at trial, in his notice of

appeal, and in his appellate brief, Haniffy failed to alert the

New Hampshire state courts to his current claim that impeachment

of Coburn and Armstrong would violate his federal due-process and

fair-trial rights. Thus, had the New Hampshire Supreme Court

been asked to rule on that claim, it would have deemed the claim

forfeited (waived) under well-established rules of procedure. In

other words, the claim was procedurally defaulted.

A procedural default “can be excused if ‘the prisoner can

demonstrate cause for the default and actual prejudice as a

result of the alleged violation of federal law, or . . . a

fundamental miscarriage of justice.’ ” Yeboah-Sefah v. Ficco,

556 F.3d 53, 66 (1st Cir. 2009) (quoting Coleman, 501 U.S. at

750). Haniffy, however, advances no argument on cause and

prejudice. 

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Because Haniffy has procedurally defaulted the

constitutional claim in Ground One, and has not established the

requisite basis for having that default excused, this court is

precluded from reaching the merits of the claim raised in Ground

One. See Pike, 492 F.3d at 73.

B. Ground Two

Respondent makes essentially the same argument for Ground

Two that he advances for Ground One. The analysis of Ground One

applies with equal force to Ground Two. The claims advanced in

Ground Two are both unexhausted and procedurally defaulted, which

precludes federal habeas corpus review.

C. Merits

Respondent is entitled to judgment as a matter of law, due

to both lack of exhaustion and procedural default. Even if the

merits were considered, however, respondent would still be

entitled to summary judgment.

In federal habeas practice, review of the application of

state evidentiary rules is “severely limited.” Abrante v. St.

Amand, 595 F.3d 11, 19 (1st Cir. 2010). “To be a constitutional

violation, a state evidentiary error must so infuse the trial

with inflammatory prejudice that it renders a fair trial

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impossible.” Id. (quoting Petrillo v. O’Neill, 428 F.3d 41, 44

n.2 (1st Cir. 2005)).

Here, there are two problems with Haniffy’s claims. First,

it is not at all clear that any evidentiary errors occurred. 

Before and during trial, Haniffy was concerned about the

admission of hearsay but, in fact, the portions of the trial

transcript he identifies as illustrating the unfairness of his

trial document the admission of very little, if any, hearsay. 

Plainly, the prosecutor’s examinations of Coburn and Armstrong

drew objections from defense counsel and admonitions from the

trial judge. But, hardly any hearsay actually made its way to

the jury. So, it is not at all clear that any state evidentiary

errors occurred at trial. Because evidentiary errors at trial,

if any, were very minor, Haniffy cannot show that his trial was

so infused with inflammatory prejudice that it was not possible

for the trial to have been fair. Accordingly, even if the court

were to consider the merits of Haniffy’s claims, he would not

prevail under the federal standard.

Conclusion

For the reasons given, respondent’s motion for summary

judgment (document no. 22) is granted. The clerk of the court

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shall enter judgment in accordance with this order and close the

case.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

May 24, 2010

cc: Joseph Haniffy, pro se

Elizabeth C. Woodcock, Esq.

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