UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Daniel E. Ayer, Sr.,

Petitioner

v. Case No. 07-cv-304-SM

Opinion No. 2015 DNH 081

Warden, New Hampshire State Prison,

Respondent

O R D E R

In August of 1999, petitioner, Daniel Ayer, shot and killed

Mark Rowland. Ayer was tried and convicted of first degree

murder. The New Hampshire Supreme Court affirmed his conviction

on appeal, and the United States Supreme Court denied his

petition for writ of certiorari. Ayer’s efforts to obtain habeas

corpus relief in the state courts were similarly unsuccessful. 

He then sought habeas relief in this court, advancing nine

claims. 

Pending before the court are: (1) Ayer’s motion to amend his

habeas corpus petition; and (2) the State’s motion for summary

judgment as to all claims advanced in that petition. For the

reasons discussed, Ayer’s motion to amend is denied and the

State’s motion for summary judgment is granted.

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I. Motion to Amend Habeas Petition.

In his motion to amend, Ayer seeks to add a new claim to his

pending petition for a writ of habeas corpus. Specifically, he

asserts that his constitutionally protected right to access the

court has been violated because he did not receive copies of

three of the State’s filings in this case. In her Report and

Recommendation, the magistrate judge properly concluded that

Ayer’s proposed claim is not appropriate for habeas relief and

recommended that the court deny his motion.1

 

After due consideration, I herewith approve the Report and

Recommendation of Magistrate Judge Andrea K. Johnstone dated

March 30, 2015 (document no. 90), for the reasons set forth

therein. Ayer’s motion to amend his habeas corpus petition

(document no. 87) is denied. 

II. Motion for Summary Judgment on Ayer’s Petition. 

The court now turns to the nine claims for relief advanced

in Ayer’s petition, all of which are the subject of the State’s

motion for summary judgment. 

1 Parenthetically, the court notes that upon receipt of

the Report and Recommendation, the State immediately provided

Ayer with copies of the documents he claimed not to have

received. See Letter of Assistant Attorney General Elizabeth

Woodcock, dated March 31, 2015 (document no. 91). Consequently,

Ayer’s assertion that he has been denied meaningful access to the

court in that respect now appears to be moot. 

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Standard of Review

Since passage of the Anti-Terrorism and Effective Death

Penalty Act of 1996 (“AEDPA”) and its amendments to 28 U.S.C.

§ 2254, the power to grant federal habeas relief to a state

prisoner with respect to claims adjudicated on the merits in

state court has been 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). And, a habeas petitioner seeking relief under that

provision faces a substantial burden insofar as “a determination

of a factual issue made by a State court shall be presumed to be

correct.” 28 U.S.C. § 2254(e)(1). 

Alternatively, habeas relief may be granted if the state

court’s resolution of the constitutional 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 United States.” 28 U.S.C.

§ 2254(d)(1). The Supreme Court explained the distinction

between decisions that are “contrary to” clearly established

federal law, and those that involve an “unreasonable application”

of that law as follows:

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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 v. Taylor, 529 U.S. 362, 412-13 (2000). The Court also

noted that an “incorrect” application of federal law is not

necessarily an “unreasonable” one. 

[T]he 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

incorrectly. Rather, that application must also be

unreasonable. 

Id. at 410-11 (emphasis in original). So, to prevail, the habeas

petitioner must demonstrate that “the state court’s ruling on the

claim being presented in federal court was so lacking in

justification that there was an error well understood and

comprehended in existing law beyond any possibility for

fairminded disagreement.” Harrington v. Richter, 562 U.S. 86,

103 (2011). 

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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). 

In fact, even when a state court has summarily rejected a

petitioner’s federal claim without any discussion at all, “it may

be presumed that the state court adjudicated the claim on the

merits in the absence of any indication or state-law procedural

principles to the contrary.” Harrington, 562 U.S. at 99

(emphasis supplied). Under those circumstances - that is, when

“a state court’s decision is unaccompanied by an explanation,” -

the habeas petitioner still bears the burden of “showing there

was no reasonable basis for the state court to deny relief.” Id.

at 98. 

As the Supreme Court has noted, AEDPA’s amendments to

§ 2254(d) present a substantial hurdle for those seeking federal

habeas relief. 

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If this standard is difficult to meet, that is because

it was meant to be. As amended by AEDPA, § 2254(d)

stops short of imposing a complete bar on federal-court

relitigation of claims already rejected in state

proceedings. It preserves authority to issue the writ

in cases where there is no possibility fairminded

jurists could disagree that the state court’s decision

conflicts with this Court’s precedents. It goes no

further. 

Harrington, 562 U.S. at 102 (citation omitted). 

Only as to federal claims that were presented to the state

court but neither adjudicated on the merits nor dismissed by

operation of a regularly-applied state procedural rule, may this

court apply the more petitioner-friendly de novo standard of

review. See, e.g., Clements v. Clarke, 592 F.3d 45 52 (1st Cir.

2010) (“In contrast, a state court decision that does not address

the federal claim on the merits falls beyond the ambit of AEDPA. 

When presented with such unadjudicated claims, the habeas court

reviews them de novo.”) (citation omitted). 

With those principles in mind, the court turns to Ayer’s

petition and the State’s motion for summary judgment. 

Background

On August 20, 1999, Ayer shot and killed Mark Rowland, a

social worker who had been working with the New Hampshire

Division for Children, Youth and Families. In resolving the

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claims Ayer presented on direct appeal of his state conviction,

the New Hampshire Supreme Court summarized Ayer’s criminal

conduct, arrest, interrogation, and conviction as follows: 

Beginning in 1998, the New Hampshire Division for

Children, Youth and Families (DCYF) became involved

with the defendant’s family, and in July 1999, Family

Counselor Mark Rowland of the Nashua Children’s Home

was assigned to the defendant’s case. On August 20,

1999, Rowland was scheduled to meet with the

defendant’s family. When Rowland arrived that day, the

defendant was leaving in his truck. He informed

Rowland that he did not want to meet and that he hoped

Rowland would leave. The defendant then left the

property but remained in the immediate area. Rowland

did not leave. When the defendant returned a few

minutes later, Rowland told the defendant that he would

not leave. The defendant then shot Rowland in the head

and fled in his truck. Rowland later died from the

gunshot wound. 

Within minutes of the shooting, Officer Martin Matthews

of the Nashua Police Department received a radio

dispatch about the shooting and rushed to the scene. 

Immediately after he arrived, emergency medical

personnel arrived and began treating Rowland. As soon

as the scene was secured, Matthews was ordered to begin

investigating this urgent situation. He scanned the

area for potential witnesses to the shooting and for

anyone who might know where the shooter was. His

attention was drawn to a woman, later identified as

Joan Ayer, the defendant’s wife, who was standing near

the scene, crying hysterically. As Matthews approached

Mrs. Ayer, but before he asked any questions, she

blurted out, “He had said that morning that he was

going to shoot him,” and, “he’d been sitting across the

street in his truck all morning waiting for him.”

Matthews asked to whom Mrs. Ayer was referring and she

responded that it was her husband. When asked who her

husband was, Mrs. Ayer identified the defendant. She

then described the defendant’s truck and informed

Matthews that the defendant had access to firearms. 

Matthews conveyed Mrs. Ayer’s description of the

defendant’s vehicle to his dispatcher, who then issued

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an alert to other officers. Shortly thereafter,

Officers Matthew Eskridge and Scott Anderson saw the

defendant’s truck. The officers stopped the truck and

arrested the defendant without incident. While

arresting the defendant, the officers noticed firearms

and ammunition in his truck. One of the firearms was

later determined to be the murder weapon. The

defendant was transported to the Nashua Police

Department for booking. Approximately forty minutes

elapsed from the time the original dispatch was sent

until the defendant was booked at the police station. 

At the police station, the defendant waived his Miranda

rights, see Miranda v. Arizona, 384 U.S. 436 (1966),

and gave a formal statement to police. He stated that

he felt he had been harassed by DCYF and other agencies

for some time and that when Rowland arrived at his home

and would not leave, he “snapped.” He also stated that

he had been contemplating making a “demonstration” for

some time and that a “demonstration” was necessary to

make DCYF and others heed his complaints and concerns. 

In 2003, the defendant was convicted of first-degree

murder. That conviction was reversed on appeal. Upon

retrial, the defendant was again convicted of firstdegree murder. This appeal followed. 

State v. Ayer, 154 N.H. 500, 502-04 (2006) (“Ayer II”).2

As construed by the magistrate judge, Ayer’s habeas petition

advances nine claims: 

2 Ayer’s first conviction was overturned on appeal after

the New Hampshire Supreme Court concluded that his

constitutionally protected right to self-representation had been

violated. See State v. Ayer, 150 N.H. 14 (2003) (“Ayer I”).

Having succeeded on that claim once before, Ayer advanced it

again (unsuccessfully) in his direct appeal of his second

conviction. See Ayer II, 154 N.H. at 515-18. And, perhaps not

surprisingly, he raises that issue once again in this proceeding. 

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1. Ayer was denied his Fifth, Sixth, and

Fourteenth Amendment rights to represent

himself at trial when the trial court

“forced” him to have court-appointed counsel; 

2. Ayer’s Sixth and Fourteenth Amendment right

to confront the witnesses and evidence

against him was violated when the trial court

admitted testimony of a witness who had died

between Ayer’s first and second trials, and

whose testimony was recorded at the first

trial; 

3. Ayer’s Fifth, Sixth, and Fourteenth Amendment

rights to Due Process and a fair trial were

violated when the trial court denied Ayer the

ability to present certain defenses to the

jury for consideration; 

4. Ayer’s Fifth, Sixth, and Fourteenth Amendment

rights to due process and a fair trial were

violated when the trial court refused to

instruct the jury regarding the lesser

offense of provocation manslaughter; 

5. Ayer’s Fifth and Fourteenth Amendment rights

to due process and not to incriminate himself

were violated when his statements were

admitted at trial even though he had not

voluntarily waived the rights afforded to him

by Miranda v. Arizona, 396 U.S. 868 (1969);

6. Ayer’s Fifth and Fourteenth Amendment rights

to due process and not to incriminate himself

were violated when his statements were

admitted at trial even though he had invoked

his right to counsel prior to questioning,

but was not afforded counsel at that time;

7. Ayer’s Fifth and Fourteenth Amendment due

process rights were violated when the trial

court admitted in evidence firearms, weapons,

and ammunition found in Ayer’s truck even

though the items were not used in the

commission of the crime, were highly

prejudicial, and were not introduced for a

legitimate purpose; 

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8. Ayer’s Sixth and Fourteenth Amendment right

to confront the witnesses against him was

violated when the trial court erroneously

admitted certain statements made by Ayer’s

wife through another witness, as excited

utterances, where Ayer’s wife did not

testify; and 

9. Ayer was denied his Sixth and Fourteenth

Amendment right to the effective assistance

of counsel when his appointed trial counsel

suggested Ayer’s guilt to the jury by

focusing on a mental state defense rather

than a defense asserting that Ayer did not

engage in the conduct alleged to be criminal. 

Report and Recommendation (document no. 57), at 1-3 (construing the

factual allegations and legal claims set forth in documents no. 1,

50, 52, and 56). None of those claims has merit and each may be

resolved rather briefly. 

A. Ayer’s Right to Represent Himself (Claim One).

Before a criminal defendant may be allowed to represent

himself at trial, he first must “knowingly and intelligently”

waive his important and constitutionally protected right to

counsel. And, he may only do so after having been made aware of

the “dangers and disadvantages of self-representation, so that

the record will establish that he knows what he is doing and his

choice is made with eyes open.” Faretta v. California, 422 U.S.

806, 835 (1975) (citation and internal punctuation omitted). His

waiver of the right to counsel and his invocation of the right to

self-representation must be clear, unambiguous, and unequivocal. 

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See generally United States v. Betancourt-Arretuche, 933 F.2d 89,

92-93 (1st Cir. 1991); Tuitt v. Fair, 822 F.2d 166, 174-77 (1st

Cir. 1987). 

The New Hampshire Supreme Court considered and rejected

Ayer’s claim that the trial court improperly denied him the right

of self-representation. Specifically, the court concluded that,

“[b]ased upon our review of the record, we agree that the

defendant did not clearly and unequivocally assert the right to

self-representation.” Ayer II, 154 N.H. at 516.3

3 The record suggests that Ayer was purposefully evasive

in refusing to specifically waive his right to counsel (or invoke

his right to proceed pro se), despite numerous pointed questions

on that topic from the trial court (which plainly understood that

this was a critical issue). 

Approximately seven times I requested from Mr. Ayer a

decision as to whether he wished to proceed pro se or

have counsel appointed for him. Mr. Ayer made it very

clear that he was not invoking his right to proceed pro

se. He repeatedly declined to make a decision and

stated that he was not about to “give up one right for

another.” Mr. Ayer declined to make a decision as to

whether he would accept the appointment of counsel or

proceed pro se. Accordingly, I appointed [two

attorneys] as his trial counsel. 

Ayer II, 154 N.H. at 517 (quoting a post-hearing order issued by

the trial court). It would appear that Ayer deliberately

withheld any unequivocal and unambiguous waiver of his right to

counsel (and corresponding invocation of his right to proceed pro

se) so that he might, if convicted, once again raise this very

issue on appeal. Such gamesmanship is, however, doomed to fail —

if there is no unequivocal, voluntary, and intelligent waiver of

a defendant’s right to counsel, then he must be represented and

cannot undertake his own defense. 

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Ayer has not shown that the court’s conclusion was based

upon either an “unreasonable determination of the facts,” or that

it 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). He is,

therefore, not entitled to habeas corpus relief on that claim. 

B. Testimony of Norman Bleau (Claim Two).

Next, Ayer claims that his constitutionally protected right

to confront witnesses was violated when the trial court admitted

into evidence a transcript of testimony from Norman Bleau - a

witness who testified at Ayer’s first trial, but who had passed

away before Ayer’s re-trial. That claim is, however,

procedurally defaulted. 

The procedural default doctrine provides that a federal

court will not consider a claim for habeas relief that was

rejected by a state court for failure to comply with that court’s

procedural requirements, Coleman v. Thompson, 501 U.S. 722, 732

(1991), provided those procedural requirements amount to “a

firmly established and regularly followed state practice,” Ford

v. Georgia, 498 U.S. 411, 423-24 (1991) (internal quotation marks

omitted). See generally Martinez v. Ryan, 132 S. Ct. 1309, 1316

(2012) (“A state court’s invocation of a procedural rule to deny

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a prisoner’s claims precludes federal review of the claims if,

among other requisites, the state procedural rule is a nonfederal

ground adequate to support the judgment and the rule is firmly

established and consistently followed.”). 

As the court of appeals has observed, a claim for habeas

relief is procedurally defaulted in either of two situations. 

First, a claim is procedurally defaulted if the state

court has denied relief on that claim on independent

and adequate state procedural grounds. Second, 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) (citations

omitted). The doctrine applies whether the procedural default

occurred at trial, on direct appeal, or in the context of a

collateral proceeding, and is “grounded in concerns of comity and

federalism.” Edwards v. Carpenter, 529 U.S. 446, 451 (2000)

(citation omitted). Because a petitioner who has failed to meet

a state’s procedural requirements for presenting his federal

claims has deprived the state court of an opportunity to address

those claims in the first instance, a federal court will consider

them only if the petitioner demonstrates cause for his statecourt default and prejudice resulting therefrom. Id. 

Alternatively, the Supreme Court has carved out a very narrow

exception for those petitioners who can demonstrate that they are

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“actually innocent” of their crimes of conviction - a rare

exception neither relevant to this case, nor invoked by Ayer. 

See generally Dretke v. Haley, 541 U.S. 386 (2004).

Here, the New Hampshire Supreme Court concluded that Ayer

had not preserved the issue concerning Mr. Bleau’s testimony for

appellate review and, therefore, it declined to address it. Ayer

II, 154 N.H. at 520 (“Because an argument that is not raised in a

party’s notice of appeal is not preserved for appellate review,

we do not address the issue of Mr. Bleau’s testimony.”) (citation

omitted). The issue is, therefore, procedurally defaulted. See,

e.g., Trevino v. Thaler, 133 S. Ct. 1911, 1917 (2013) (“[A]

conviction that rests upon a defendant’s state law ‘procedural

default’ (for example, the defendant’s failure to raise a claim

of error at the time or in the place that state law requires),

normally rests upon ‘an independent and adequate state ground.’ 

And where a conviction rests upon such a ground, a federal habeas

court normally cannot consider the defendant’s federal

constitutional claim.”) (citations omitted). 

Ayer has demonstrated neither cause for his state-court

procedural default nor any prejudice resulting from the

introduction of Mr. Bleau’s testimony. See generally Murray v.

Carrier, 477 U.S. 478, 488 (1986). Mr. Bleau did not witness the

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actual shooting and, at best, his testimony was cumulative and

served simply to place Ayer near the scene of the crime at the

time of the shooting. See generally Transcript of Jury Trial,

Day 2, July 20, 2000, at 15-30. Even independent of Mr. Bleau’s

testimony, the evidence of Ayer’s guilt was overwhelming,

including the fact that he had made prior threats against DCYF

that he shared with two family members (and, on the morning of

the shooting, he told his wife he was “going to do what I said I

was gonna do”); he shot at Mr. Rowland and then fled the scene; a

ballistic examination of the bullet removed from Mr. Rowland’s

skull matched Ayer’s 9mm Makarov pistol, which was recovered from

Ayer’s truck; and, of course, Ayer’s own confession to police

that when Mr. Rowland arrived at his home he “snapped,” that he

had previously been contemplating some sort of “demonstration” to

make the State address his complaints and concerns, and that he

“had to kill somebody so somebody would listen.” See Ayer II,

154 N.H. at 503; State Habeas Decision (document no. 52-1) at 11. 

Because Ayer’s claim relating to the testimony of Mr. Bleau

is procedurally defaulted, and because Ayer has shown neither

cause for that default nor prejudice, he is not entitled to

federal habeas corpus relief on that claim. 

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C. Defenses and Instructions on Lesser Charges

(Claims Three and Four). 

Ayer next asserts that his federal due process rights were

violated when the trial court refused to allow him to present

certain defenses (“defense of another” and the “right to

revolution”) and declined to instruct the jury on certain lesser

offenses (reckless manslaughter and provocation manslaughter). 

First, the state supreme court concluded that Ayer’s claims

regarding reckless manslaughter and the “right to revolution”

under the New Hampshire Constitution “were not raised before the

trial court.” Ayer II, 154 N.H. at 515. Accordingly, the court

declined to address them and they are procedurally defaulted. 

The state supreme court addressed and rejected Ayer’s

remaining claims on the merits, concluding that under the state’s

criminal laws and based upon the evidence presented at trial,

Ayer was not entitled to assert such defenses, nor was he

entitled to the requested jury instructions. See Ayer II, 154

N.H. at 513-15 (concluding, for example, that there was no

evidence that Mr. Rowland intended to kidnap Ayer’s son and,

because Mr. Rowland was engaged in a lawful act when he refused

to leave Ayer’s property, Ayer was precluded from arguing

sufficient provocation to support a finding of manslaughter). 

See generally Powell v. Tompkins, 2015 WL 1681274, at *5 (1st

Cir. April 15, 2015) (“It is, of course, the duty of the state

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high court to construe the meaning of state statutes, including

criminal offenses and rules of procedure. . . . The [state

supreme court’s] exposition represents the very meaning of the

statute intended by the state legislature, and we are duty bound,

in no uncertain terms, to follow that state precedent.”)

(citations omitted). 

The State asserts that this court is precluded from

reviewing Ayer’s claims, since they were resolved on “independent

and adequate state law grounds.” Respondent’s memorandum

(document no. 75-1) at 15. That argument (which is typically

presented in the context of procedural default) is unclear and

likely incorrect, for reasons the court need not develop here. 

See generally Olszewski v. Spencer, 466 F.3d 47, 62 (1st Cir.

2006) (“Independent and adequate state grounds exist where the

state court declined to hear the federal claims because the

defendant failed to meet a state procedural requirement.”)

(emphasis supplied). It suffices to note that Ayer does not

assert that the trial court violated his rights under state law,

nor does he claim the state supreme court got that aspect of its

decision wrong. Rather, he says the allegedly erroneous trial

court rulings (i.e., its refusal to give the requested jury

instructions or to allow him to assert certain defenses) resulted

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in the violation of his constitutionally protected right to a

fundamentally fair trial. 

Nevertheless, it is plain that Ayer has not borne his burden

under § 2254. He has not shown that the New Hampshire Supreme

Court’s resolution of those claims was based upon an unreasonable

determination of the facts in light of the record evidence, nor

has he demonstrated that it was contrary to, or involved an

unreasonable application of, clearly established federal law (a

burden he bore even though the state supreme court resolved his

claims without reference to federal law or Supreme Court

precedent, see generally Early, 537 U.S. at 8; Harrington, 562

U.S. at 99). To the contrary, the state court’s opinion is wellreasoned, factually supported, and entirely consistent with both

state law and (more importantly for these purposes) the federal

constitution. 

Finally, the court notes that even if it were persuaded that

those claims are subject to the more petitioner-friendly de novo

review, the outcome would be no different.4

 Ayer has not shown

4 As noted above, the magistrate judge concluded that

Ayer properly exhausted his federal due process claims relating

to the jury instructions and defenses - that is, he fully and

fairly presented them to the state’s highest court. An argument

could be made, however, that the state court did not resolve

Ayer’s federal constitutional claims but, instead, addressed only

the state law aspects of those claims. See Ayer II, 154 N.H. at

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that the challenged trial-court rulings resulted in a

fundamentally unfair trial or otherwise violated his federally

protected due process rights. Simply stated, under these

circumstances, Ayer had no federal constitutional right to

present defenses (or to obtain jury instructions) that were

unsupported by the factual record and, therefore, unavailable

under state law. As the Supreme Court has observed in a related

context:

It goes without saying that preventing and dealing with

crime is much more the business of the States than it

is of the Federal Government, and that we should not

lightly construe the Constitution so as to intrude upon

the administration of justice by the individual States. 

Among other things, it is normally within the power of

the State to regulate procedures under which its laws

are carried out, including the burden of producing

evidence and the burden of persuasion, and its decision

in this regard is not subject to proscription under the

Due Process Clause unless it offends some principle of

justice so rooted in the traditions and conscience of

our people as to be ranked as fundamental. 

Patterson v. New York, 432 U.S. 197, 201-02 (1977) (citations and

internal punctuation omitted) (emphasis supplied). 

Because Ayer has not shown that the challenged trial court

rulings were so offensive to firmly rooted principles of fairness

and justice that he was deprived of his constitutionally

513-15. If that is, in fact, the case, Ayer’s federal due

process claims would properly be subject to de novo review. 

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protected right to due process and a fair trial, he is not

entitled to habeas relief on those claims. 

D. Right Against Self-Incrimination (Claims Five and Six).

Ayer also claims that certain statements he made (and that

were used against him at trial) were obtained in violation of his

Miranda rights. He asserts that, contrary to the testimony of

two police officers and the factual findings of the trial court

(which were sustained by the state supreme court), he did invoke

his right to counsel during the booking process and prior to his

interrogation. Thus, he argues his statements to the police were

obtained in violation of his Fifth Amendment rights. He goes on

to say that, but for those unconstitutionally obtained

statements, the warrant authorizing the search of his truck would

not have issued. He also claims that those statements should not

have been admitted at trial. 

In addressing that claim on direct appeal, the New Hampshire

Supreme Court first concluded that, “[u]pon review of the record

[which includes a video tape of the booking process], we agree

[with the trial court] that the defendant did not use any words

that invoked the right to counsel during booking.” Ayer II, 154

N.H. at 518. It also concluded that the trial court supportably

credited the testimony of two police officers, rejected Ayer’s

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contrary testimony, and found that Ayer never invoked his right

to counsel during an unrecorded interview with police. Id. 518-

19. Accordingly, the court held that Ayer’s right to counsel was

not violated. 

Again, Ayer has failed to carry his burden under 28 U.S.C. 

§ 2254(d). The state court’s factual findings are amply

supported by the record, and there is not even the slightest

suggestion that its legal conclusions were contrary to, or

involved an unreasonable application of, clearly established

federal law. As to that claim, then, Ayer is not entitled to

federal habeas corpus relief. 

E. Introduction of Firearms and Ammunition (Claim Seven). 

Next, Ayer claims that his Fifth and Fourteenth Amendment

due process rights were violated when the trial court admitted

into evidence ammunition and various firearms that were recovered

during a search of his truck. He says those weapons (except, of

course, the 9mm Makarov) were not used in the commission of the

crime and, therefore, had no relevance. He also asserts, without

elaboration, that their introduction was “highly prejudicial.” 

The state supreme court thoroughly and thoughtfully

addressed Ayer’s claims under the applicable rules of evidence

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and held that the trial court permissibly allowed the

introduction of those weapons. See, e.g., Ayer II, 154 N.H. at

512 (“Evidence of numerous weapons in the defendant’s truck could

tend to show that he had planned and prepared to stage some type

of violent act. Accordingly, the record supports the trial

court’s ruling that the presence of weapons in the defendant’s

truck was relevant for a purpose other than showing the

defendant’s character or disposition.”). See also, Id. at 513

(“In sum, because the record supports the admission of the

evidence of the weapons and ammunition in the defendant’s truck

under Rule 404(b) we conclude that the trial court did not

unsustainably exercise its discretion.”). 

But, as to the constitutional dimensions of Ayer’s

evidentiary claims, the state supreme court concluded that Ayer

failed to properly preserve them for appeal and, therefore,

waived them. 

[T]he defendant contends that admitting the evidence of

weapons and ammunition violated his due process rights

under the New Hampshire and Federal Constitutions. The

defendant, however, does not explain how his rights

were violated. He argues only in conclusory terms that

“the evidence should have been excluded as a matter of

due process.” Because, in the realm of appellate

review, a mere laundry list of complaints regarding

adverse rulings by the trial court, without developed

legal argument, is insufficient to warrant judicial

review, we decline to address the defendant’s

constitutional argument. 

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Ayer II, 154 N.H. at 513 (citation omitted). That claim is,

then, procedurally defaulted. And, Ayer has not demonstrated

cause for the procedural default, nor has he shown prejudice. To

the contrary, both the trial court and the state supreme court

thoroughly explained why evidence of the presence of firearms in

Ayer’s truck was properly admitted at his trial: it was relevant

and its probative value was not substantially outweighed by any

risk of unfair prejudice to Ayer. See, e.g., Id. at 511-13. 

F. Excited Utterances (Claim Eight).

In his eighth claim, Ayer asserts that the trial court

erroneously admitted his wife’s excited utterances to the police

immediately after he shot Mr. Rowland. That error, says Ayer,

violated his due process right to a fair trial, as well as his

Sixth Amendment right to confront the witnesses against him. 

But, except in rare cases, state evidentiary rulings - even

erroneous ones - do not constitute a basis for habeas corpus

relief on grounds that the petitioner’s due process rights were

violated. As the court of appeals has noted: 

An erroneous evidentiary ruling that results in a

fundamentally unfair trial may constitute a due process

violation and thus provide a basis for habeas relief.

However, to give rise to habeas relief, the state

court’s application of state law must be so arbitrary

or capricious as to constitute an independent due

process violation. To be a constitutional violation, a

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state evidentiary error must so infuse the trial with

inflammatory prejudice that it renders a fair trial

impossible. 

Lyons v. Brady, 666 F.3d 51, 55-56 (1st Cir. 2012) (citations and

internal punctuation omitted) (emphasis supplied). Here, as

discussed below, the record does not support the view that the

excited utterances were admitted in error. And, even if one were

to assume that evidence should have been excluded, there is

certainly no support for the claim that its introduction infused

Ayer’s trial with “inflammatory prejudice” so great that it

rendered his trial “fundamentally unfair.” 

As to Ayer’s assertion that the introduction of his wife’s

excited utterances violated his Sixth Amendment rights, the New

Hampshire Supreme Court addressed, and rejected, that claim on

Ayer’s direct appeal. In so doing, the court properly

identified, and faithfully (and not unreasonably) applied,

clearly established federal law, as embodied in Crawford v.

Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S.

813 (2006). See Ayer II, 154 N.H. at 504-11. The court’s

lengthy discussion and reasoning need not be recounted. It is

sufficient to note that the court ultimately concluded that “Mrs.

Ayer’s statements were not testimonial under Crawford and Davis

and [] their admission did not, therefore, violate the

defendant’s rights under the Federal Constitution.” Id. at 511. 

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Ayer has not shown, nor is there anything in the record to

suggest, that the state supreme court’s resolution of that issue

was contrary to, or involved an unreasonable application of,

clearly established federal law. Nor has Ayer demonstrated that

the state court’s decision was based upon an unreasonable

determination of facts in light of the record evidence. 

Consequently, as to that claim, Ayer is not entitled to habeas

corpus relief. 

G. Ineffective Assistance of Counsel (Claim Nine).

Finally, Ayer asserts that his trial counsel rendered

constitutionally deficient representation by focusing on his

mental state (thereby implying to the jury that he actually shot

Mr. Rowland), rather than asserting that Ayer did not engage in

the charged criminal conduct. Ayer presented that claim to the

state habeas court, which thoroughly addressed all of Ayer’s

various factual and legal claims. See State Habeas Decision

(document no. 52-1). Again, it is not necessary to recount the

state court’s exhaustive discussion of the issue. It is enough

to note that it invoked and faithfully applied the appropriate

legal standard, as embodied in Strickland v. Washington, 466 U.S.

668 (1984), and concluded that Ayer had satisfied neither prong

of the relevant test. That is, he failed to show that counsel’s

performance fell below an objective standard of reasonableness. 

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Moreover, the court concluded that even if one were to assume

that counsel’s representation had been constitutionally

deficient, Ayer failed to show any resulting prejudice. 

Consequently, the court denied Ayer’s petition for habeas relief. 

Again, Ayer has failed to carry his burden under 28 U.S.C. 

§ 2254(d). He has neither shown that the habeas court based its

decision on an unreasonable determination of facts in light of

the evidence presented, nor has he demonstrated that the court’s

decision was contrary to, or involved an unreasonable application

of, clearly established federal law. 

Conclusion

As noted above, Ayer’s motion to amend his petition for

habeas corpus relief (document no. 87) is denied. His motion to

strike (document no. 89) is also denied. 

And, for the foregoing reasons, as well as those set forth

in respondent’s comprehensive memorandum of law, respondent’s

motion for summary judgment (document no. 75) is granted. The

petition for a writ of habeas corpus is denied and the Clerk of

Court shall close the case.

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Because Ayer has not “made a substantial showing of the

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

court declines to issue a certificate of appealability. 

Petitioner may, however, seek such a certificate from the court

of appeals under Federal Rule of Appellate Procedure 22(b). See

Rule 11, Federal Rules Governing Section 2254 Cases (2010); 28

U.S.C. § 2253(c).

SO ORDERED.

____________________________

Steven J. McAuliffe

United States District Judge

April 22, 2015

cc: Daniel E. Ayer, Sr., pro se

Elizabeth C. Woodcock, Esq.

Susan P. McGinnis, Esq.

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