UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Vernon Gray,

Petitioner

v . Civil No. 07-cv-77-SM

Opinion No . 2008 DNH 049

Bruce Cattell, Warden ,

New Hampshire State Prison ,

Respondent

O R D E R

In July of 2003, a state grand jury indicted Vernon Gray for

attempted murder, first degree assault, and reckless conduct .

Those charges arose out of an altercation during which Gray was

accused of having shot Matthew Collier - a man with whom Gray

believed his wife was having an affair . In May of 2005, a jury

acquitted Gray of the more serious charges (i .e ., attempted

murder and assault), but convicted him of reckless conduct .

Subsequently, Gray was sentenced to three and one-half to twenty

years in the state prison .

Gray did not file a direct appeal of his conviction . He

did, however, seek habeas corpus relief from the state trial

court, asserting that : (1) his trial counsel provide d

constitutionally deficient representation ; and (2) certain

evidentiary rulings issued by the trial court operated to deprive

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him of his constitutionally protected right to due process and a

fair trial . When that collateral attack upon his conviction

proved unsuccessful, Gray filed a petition seeking federal habeas

corpus relief in this court . See 28 U .S .C . § 2254 .

Pending before the court is the State's motion for summary

judgment . For the reasons set forth below, that motion is

granted .

Standard of Review

Since passage of the Anti-Terrorism and Effective Death

Penalty Act of 1996 ("AEDPA"), 28 U .S .C . § 2254(d), the power to

grant federal habeas relief to a state prisoner with respect to

claims adjudicated on the merits in state court has bee n

substantially limited . A federal court may not disturb a state

conviction unless the state court's adjudication "resulted in a

decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court

proceeding ." 28 U .S .C . § 2254(d)(2) . Alternatively, habeas

relief may be granted if the state court's resolution of the

issues before it "resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the Unite d

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States ." 28 U .S .C . § 2254(d)(1) . See also Williams v . Taylor ,

529 U .S . 362, 399 (2000) .

With respect to claims, like Gray's, which are brought

pursuant to section 2254(d)(1), the United States Supreme Court

has explained the distinction between decisions that are

"contrary to" clearly established federal law, and those that

involve an "unreasonable application" of that law .

Under the "contrary to" clause, a federal habeas court

may grant the writ if the state court arrives at a

conclusion opposite to that reached by [the Supreme]

Court on a question of law or if the state court

decides a case differently than [the Supreme] Court has

on a set of materially indistinguishable facts . Under

the "unreasonable application" clause, a federal habeas

court may grant the writ if the state court identifies

the correct governing legal principle from [the

Supreme] Court's decisions but unreasonably applies

that principle to the facts of the prisoner's case .

Williams , 529 U .S . at 412-13 . The Court also noted that an

"incorrect" application of federal law is not necessarily an

"unreasonable" one .

The most important point is that an unreasonable

application of federal law is different from an

incorrect application of federal law . . . . Under §

2254(d)(1)'s `unreasonable application' clause, then, a

federal habeas court may not issue the writ simply

because that court concludes in its independent

judgment that the relevant state-court decision applied

clearly established federal law erroneously or

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incorrectly . Rather, that application must also be

unreasonable .

Id . at 410-11 (emphasis in original) .

Finally, it probably bears noting that a state court need

not rely upon, nor need it even cite, Supreme Court precedent in

order to avoid resolving a petitioner's claims in a way that is

"contrary to" or involves an "unreasonable application of "

clearly established federal law . See Early v . Packer , 537 U .S .

3, 8 (2002) ("Avoiding these pitfalls does not require citation

of our cases - indeed, it does not even require awareness of our

cases, so long as neither the reasoning nor the result of the

state-court decision contradicts them .") (emphasis in original) .

With those principles in mind, the court turns to Gray' s

petition and the State's motion for summary judgment .

Discussion

In support of his petition seeking habeas relief, Gray

asserts that his trial counsel provided him with constitutionally

deficient representation, in violation of his Sixth Amendment

rights . He also says that the trial court made several erroneous

evidentiary rulings, thereby depriving him of hi s

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constitutionally protected rights to due process and a fair

trial . The state habeas court addressed those claims on the

merits and resolved them against Gray . Gray v . Cattell , No . 06-

E-80 (Merrimack Superior Court Nov . 13, 2006) (Exhibit AE-17 to

defendant's answer)(document no . 6-28) . Gray appealed that

decision to the New Hampshire Supreme Court, which declined to

accept the appeal .

I . Gray Exhausted his Claims in State Court .

As a preliminary matter, the State asserts that Gray did not

exhaust his claims by properly appealing the habeas court's

decision to the state supreme court . Accordingly, says the

State, those claims are unexhausted and Gray is procedurally

barred from returning to state court and exhausting them . The

court disagrees .

After the superior court denied his habeas corpus petition,

Gray filed an ambiguous pleading with the state supreme court,

which he apparently captioned "Petition for Habeas Corpus ."

Subsequently, however, Gray made clear to the court that, rather

than filing a new petition for habeas corpus relief he was,

instead, appealing the adverse decision issued by the state

habeas court in Gray v . Cattell . He did so by filing a°Rule 7

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Notice of Discretionary Appeal," a form which expressly provides

that it is to be used to "appeal from a final decision on the

merits issued by a superior court . . . [in] a proceeding

involving the collateral challenge to a conviction or sentence ."

See Exhibit AE-15 to defendant's answer (document no . 6-26) . The

state supreme court plainly understood Gray's actual intent, and,

after considering the merits of his appeal, declined to accept

it . See Exhibit AE-1S to defendant's answer (document no . 6-29) .

Importantly, the state supreme court did not reject Gray's

appeal on grounds that he had waived any rights or that he had

failed to properly present any issues on appeal . See id . ("The

matter was considered by each justice whose name appears below .

If any justice who considered this matter believed the appeal

should have been accepted, this case would have been accepted and

scheduled for briefing .") . Accordingly, this court must presume

that the state supreme court denied Gray's federal constitutional

claims on the same grounds articulated by the state habeas court

in Gray v . Cattell . See Ylst v . Nunnemaker , 501 U .S . 797, 803

(1991) ("Where there has been one reasoned state judgment

rejecting a federal claim, later unexplained orders upholding

that judgment or rejecting the same claim rest upon the sam e

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ground . If an earlier opinion fairly appears to rest primarily

upon federal law, we will presume that no procedural default has

been invoked by a subsequent unexplained order that leaves the

judgment or its consequences in place .") (citation and internal

punctuation omitted) .

This record suggests that the state supreme court fully (and

correctly) understood that the issues Gray sought to raise on

appeal were those issues identified in his earlier filing, as

supplemented by the Rule 7 Form . So, although the state supreme

court declined to accept his appeal, Gray nevertheless fairly

presented his constitutional claims to the State's highest court .

Those claims are, then, fully exhausted . See, e .g ., Clements v .

Maloney, 485 F .3d 158, 162 (1st Cir . 2007) ("In order to exhaust

a claim, the petitioner must present the federal claim fairly and

recognizably to the state courts, meaning that he must show that

he tendered his federal 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 .") (citation and internal

punctuation omitted) . 1

1 The State also asserts that Gray's claims are

procedurally defaulted . But, the basis for that argument is

unclear . Nevertheless, it is sufficient to note that the only

claims that are procedurally defaulted (i .e ., those Gray failed

to raise in a timely direct appeal of his conviction) are thos e

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II . Gray's Claims Fail on the Merits .

Having determined that Gray's claims are fully exhausted,

the court turns to a consideration of those issues on the merits .

Parenthetically, the court notes that even if Gray had not fully

exhausted the issues he presses in his federal habeas corpus

petition, the court is still authorized to deny them on the

merits . See 28 U .S .C . § 2254(b) ("An application for a writ of

habeas corpus may be denied on the merits, notwithstanding the

failure of the applicant to exhaust the remedies available in the

courts of the State .") .

A . Ineffective Assistance of Counsel .

In resolving Gray's claim that he was denied effective

assistance of counsel, the state habeas court properly observed

that Gray bore the burden of establishing that counsel's conduct

fell below the standard of reasonably effective assistance and

relating to his assertion that the trial court made several

erroneous evidentiary rulings . ee Gray v . Cattell , slip op . at

10 ("Rather than appeal his conviction, however, the petitioner

determined, after discussion with his counsel, not to seek an

appeal . The Court concludes that the petitioner has thereby

waived collateral review of the trial judge's evidentiary

rulings .") . But, Gray does not press those arguments in his

federal habeas petition, so the issue is of no moment . Among

other issues advanced in this case is Gray's claim that various

rulings by the trial court served to deprive him of his

constitutionally protected rights - claims that the state habeas

court concluded were not procedurally defaulted and, therefore,

addressed on the merits . See id . at 12 .

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that counsel's errors prejudiced his defense . Gray v . Cattell ,

slip op . at 4-5 . See generally Strickland v . Washington, 466

U .S . 668, 687 (1984) . The court then throughly discussed the

basis for its conclusion that Gray's trial counsel did not

provide constitutionally deficient representation . Id . at 7-9

(noting, among other things, that many of the decisions Gray

challenges were reasonable strategic decisions by trial counsel,

which are entitled to substantial deference) . Next, the court

concluded that, even if Gray had proved that trial counsel's

representation was deficient, Gray failed to demonstrate that he

had been prejudiced by counsel's alleged errors . Id . at 9 .

Nothing in either Gray's habeas petition or his memorandum

plausibly suggests that the state habeas court's resolution of

his ineffective assistance claim was either contrary to, or

involved an unreasonable application of, clearly established

federal law . See 28 U .S .C . § 2254(d)(1) . In fact, just the

opposite is true . The record reveals that the state habeas court

properly identified the controlling federal legal principles, as

articulated by the United States Supreme Court, and reasonably

applied those principles in resolving Gray's petition .

Consequently, Gray is not entitled to federal habeas corpus

relief as to his ineffective assistance of counsel claims .

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B . Due Process Violations .

As construed by the Magistrate Judge, Gray's federal habeas

petition raises two claims relating to the admissibility of

evidence at his criminal trial .

Gray alleges that the trial judge in the case erred in

ruling that the key State's witness did not have

potential criminal liability that would require his

testimony to be excluded under the Fifth Amendment, and

that therefore the testimony of the witness was

admissible at trial, as it would not cause the witness

to incriminate himself . Further, the trial court

abused its discretion in not allowing the defense to

introduce certain impeachment evidence that, Gray

alleges, was admissible, relevant, and material to the

success of his case . Accordingly, Gray alleges that

the trial court violated his Fifth, Sixth, and

Fourteenth Amendment rights to due process and a fair

trial .

Magistrate Judge's Preliminary Review of Gray's Petitio n

(document no . 4) at 5-6 .

Prior to Gray's criminal trial, the court conducted what is

known as a Richards hearing, to determine whether Mr . Collier's

right against self-incrimination would be implicated by his

proposed trial testimony . See generallv State v . Richards , 129

N .H . 669 (1987) (vacating a defendant's conviction because the

trial court failed to properly investigate the validity of the

Fifth Amendment privilege asserted by the defendant's sole

witness) . See also State v . Cablin , 134 N .H . 302, 308 (1991 )

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(noting that the purpose of a Richards hearing is to allow the

trial court to determine "whether to compel a witness to testify,

after balancing the witness's right to be free from selfincrimination with the right of the accused to produce

exculpatory evidence") . Following that hearing, the court

concluded that Mr . Collier's constitutional rights would not be

implicated and, therefore, allowed the State to call him as a

witness . Mr . Collier then testified at trial and did not seek to

invoke his Fifth Amendments rights .

Gray's assertion that the trial court improperly allowed Mr .

Collier to testify lacks legal merit . The purpose of a Richards

hearing is to determine whether a criminal defendant can compel a

witness to testify at trial, notwithstanding the witness' s

intention to invoke the Fifth Amendment's privilege against selfincrimination . It is not, as Gray seems to believe, a process by

which a defendant may preclude a witness from testifying against

him . Gray was not entitled to assert the Fifth Amendmen t

privilege of a potential witness as a bar to his testifying .

That right is personal to the witness and only the witness can

invoke it . See, e .g . , Couch v . United States , 409 U .S . 322, 328

(1973) . Plainly, then, the trial court did not err by allowing

Mr . Collier to testify against Gray .

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Moreover, even if he could demonstrate that the trial court

erred by allowing Mr . Collier to testify, Gray has not

demonstrated that he was deprived of any constitutionally

protected rights as a consequence . It goes without saying that

Gray's Fifth Amendment rights were not violated when Mr . Collier

testified against him . Nor has Gray shown how the admission of

that testimony violated his constitutionally protected right to

due process andlor a fair trial . It necessarily follows that

Gray has failed to establish that the state habeas court's

disposition of that claim was contrary to, or involved an

unreasonable application of, clearly established federal law .

Finally, Gray asserts that he was denied due process when

the trial court refused to allow him to introduce evidence he

says would have impeached the credibility of Mr . Collier, the

State's primary witness against him . The state habeas court

properly noted that because Gray failed to raise that issue on

direct appeal (i .e ., it was procedurally barred), Gray was

entitled to habeas relief only if he could demonstrate that : (1)

the (allegedly) improperly excluded evidence was material ; and

(2) its exclusion rendered his trial fundamentally unfair . Grav

v . Cattell , slip op . at 10-11 . See generally Wilkerson v . Cain ,

233 F .3d 886, 890 (5th Cir . 2000) ("Habeas relief may be grante d

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based on the state court's erroneous evidentiary ruling only i f

that ruling violated [the petitioner's] constitutional rights or

rendered his trial fundamentally unfair .") . In other words, Gray

was obligated to make a plausible showing that the exclude d

evidence "would have been both material and favorable to his

defense ." United States v . Valenzuela-Bernal , 458 U .S . 858, 867

(1982) .

After reviewing Gray's claims and the evidence introduced at

his trial (as well as the impeachment evidence Gray says was

improperly excluded), the state habeas court sustainably

concluded that because Gray's trial counsel had so effectively

impeached the credibility of the State's witness, even if such

evidence was improperly excluded from Gray's trial, it was, at

best, cumulative and, therefore, not material . Although Gray

plainly disagrees with that decision, more is necessary to

demonstrate that he is entitled to federal habeas corpus relief .

Conclusion

The arguments Gray advances in his petition for federa l

habeas corpus relief were not procedurally defaulted in the state

courts . And, Gray properly exhausted those claims by raising

them before the habeas court and then appealing that court' s

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adverse decision to the New Hampshire Supreme Court . It is,

then, appropriate to address those federal constitutional claims

on the merits . But, having done so, the court concludes that

Gray has failed to carry his substantial burden of proving that

the state habeas court's resolution of those claims was "contrary

to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of

the United States ." 28 U .S .C . § 2254(d)(1) . Nor has he shown

that the habeas court's decision was based on "an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding ." 28 U .S .C . § 2254(d)(2) .

For the foregoing reasons, as well as those set forth in the

State's memorandum (document no . 15-2) at 17-25, Gray is not

entitled to federal habeas corpus relief . The State's motion for

summary judgment (document no . 15-1) is, therefore, granted . The

Clerk of Court shall enter judgment in accordance with this order

and close the case .

SO ORDERED .

March 4, 2008

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CC : Vernon Gray, pro se

Susan P . McGinnis, Esq .

Stephen Fuller, Office of NHAG

John Vinson, NHDOC

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