UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Seth Bader

v. Civil No. 02-cv-508-JD

Warden, New Hampshire

State Prison

O R D E R

On June 29, 2005, the court granted summary judgment in

favor of the warden on the fifth and last issue Seth Bader raised

for review under 28 U.S.C. § 2254. The court also denied his

request for a stay of this proceeding while he litigated a new

claim of ineffective assistance of counsel in state court. 

Judgment was entered on June 30, 2005. Bader now moves to amend

the judgment, to amend his petition to add the new ineffective

assistance of counsel claim, to expand the record, to strike the

warden’s objection to his motion to expand the record, and for a

certificate of appealability.

 For the reasons stated in the order of June 29, 2005,

Bader’s motion to amend the judgment is denied. Bader’s motion

to amend the petition is denied as not in the interests of

justice and as futile. Bader’s two motions to expand the record

seek to add materials pertinent to the proceedings in his state

court habeas proceeding. Those materials are not pertinent to

this case. 

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In his second motion, Bader also seeks to add a statement of

Kory L. Almand, who claims to have been an acquaintance of the

state’s witness, Joseph Bader, and claims that Joseph boasted of

having fatally shot his adoptive mother. Bader contends that

Almand’s statement, taken with his evidence that another witness

recanted his trial testimony, shows that he is actually innocent. 

The court is not convinced that the new evidence warrants

reopening this case, absent which, the evidence is not pertinent.

Bader seeks a certificate of appealability on two issues

which he states as follows: “(A) a concealed leniency-fortestimony deal between the state and its witness Joseph, and (b)

denial of confrontation of Joseph and denial of effective

assistance of trial and appellate counsel through not raising the

issue of Joseph’s financial interest in convicting the

petitioner.” “A certificate of appealability may issue . . .

only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 

Because only the first issue was raised as part of the § 2254

petition in this court, the merits of the second issue were never

considered here. Therefore, the court will grant a certificate

of appealability on the first issue only.

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Conclusion

For the foregoing reasons, the plaintiff’s motions to amend

judgment, to amend the petition, to expand the record, and to

strike the defendant’s objection (documents no. 213, 216, 217,

221, and 223) are denied. The plaintiff’s motion for a

certificate of appealability (document no. 215) is granted in

part as to the first issue stated by the plaintiff as follows:

“(A) a concealed leniency-for-testimony deal between the state

and its witness Joseph.” 

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

September 7, 2005

cc: B. Michael Cormier, Esquire

Neals-Erik W. Delker, Esquire

Peter E. Papps, Esquire

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