UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Oliver Hooper

v. Civil No. 08-cv-426-JD

Opinion No. 2010 DNH 051

Warden, Northern New Hampshire

Correctional Facility

O R D E R

Oliver Hooper seeks habeas corpus relief, pursuant to 28

U.S.C. § 2254, from his state convictions and sentences for

aggravated felonious sexual assault, simple assault, criminal

threatening, sexual assault, and kidnaping. In support of his

petition, Hooper raises claims that the state court’s evidentiary

rulings violated his rights under the Fifth and Sixth Amendments,

along with violations of the New Hampshire Constitution and state

law, that he was not afforded the presumption of innocence, and

that he was not tried under the proper standard of proof. The

Warden moves for summary judgment, and Hooper objects.

Standard of Review

Summary judgment is commonly used in habeas corpus

proceedings to determine whether the issues raised may be decided

based on the record, within the procedural confines of § 2254. 

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See Fed. R. Civ. P. 81(a)(4); Rule 12, Rules Governing § 2254

Proceedings. Ordinarily, summary judgment is appropriate when

“the pleadings, the discovery and disclosure materials on file,

and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c). The party seeking

summary judgment must first demonstrate the absence of a genuine

issue of material fact in the record. See Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). A party opposing a properly

supported motion for summary judgment must present competent

evidence of record that shows a genuine issue for trial. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). 

Background

For purposes of summary judgment, the Warden provides

factual background supported by citations to the trial

transcript. Hooper does not challenge the factual background

provided by the Warden. Therefore, the properly supported

factual background provided by the Warden is deemed admitted. LR

7.2(b)(2). 

In July of 2005, Hooper worked as a salesman of heating and

plumbing supplies in a sales area located in southern Maine. On

the morning of July 26, 2005, Hooper was driving in a

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neighborhood of Dover, New Hampshire, where he stopped at a house

with a for sale sign. When the homeowner, John Crosier, answered

the door, Hooper explained that he was considering moving to

Dover and left. Hooper then went to a second house with a for

sale sign where Cathy Ann Petit answered the door, accompanied by

her daughter. When Mrs. Petit explained to Hooper that she could

not show him the second floor of the house because her second

daughter was asleep there, Hooper left.

Hooper then went to a third house with a for sale sign. A

woman, RG, answered the door and told him to contact the

realtor.1 When Hooper said that he would rather speak with the

homeowner, RG wrote her name, her mother’s name, and a telephone

number on a piece of paper for him. Hooper grabbed RG by the

arm, pushed her back into the house, and eventually forced her

upstairs. Once in a bedroom, Hooper tied up RG, took her clothes

and his own clothes off, threatened her with a knife, and forced

her to perform oral sex. Hooper then also raped RG vaginally but

told her that because she was not using birth control, he would

not ejaculate. He forced RG to take a shower, and then forced

her down to the basement where he left her naked and bound.

1The court uses the victim’s initials, rather than her full

name, to protect her privacy.

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After he left, RG managed to get upstairs where she called her

mother and the police.

Hooper was charged with five counts of aggravated felonious

sexual assault, two counts of simple assault, two counts of

criminal threatening, one count of sexual assault, and one count

of kidnaping. Before trial, Hooper moved to suppress evidence

found during a search of his home in Gorham, Maine, arguing that

the search, which was conducted at night, exceeded the scope of

the “daytime warrant” that expired at 9 p.m. The superior court

held an evidentiary hearing and denied the motion, concluding

that although the search continued after 9 p.m., it did not

exceed the scope of the warrant because it began before 9 p.m.

The prosecution moved in limine to be permitted to introduce

evidence pertaining to Hooper’s stops at other houses with for

sale signs in the yards before he reached the victim’s home. The

prosecution represented that the evidence of Hooper’s other stops

was relevant to show his identity and to show his mode of

operation. The court allowed the evidence.

At trial, the prosecution called three witnesses to testify

about the results of the sexual assault kit administered to RG

after the assault. Sara Taylor, the nurse who administered the

sexual assault kit; Mary Dawson, a criminalist with the state

police forensic laboratory who processed the assault kit, and

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Jennifer Pierce-Weeks, the director of the Sexual Assault Nurse

Examiner Program, testified about the results of RG’s examination

and testing. 

Pierce-Weeks testified that examination and testing showed

an absence of Hooper’s DNA in the victim’s mouth and vagina and

no trauma to her vagina. The defense objected that the

prosecution failed to give timely notice of Pierce-Weeks’s expert

opinion testimony and that the prosecution was eliciting

testimony beyond the scope of Pierce-Weeks’s expert report. The

defense also argued that the prosecution’s questioning and

Pierce-Weeks’s testimony opened the door to ask Pierce-Weeks

about evidence that semen from someone other than Hooper was

found through the testing. The court did not allow questioning

about the other semen found through testing the rape kit.

Hooper was convicted on all of the charges against him. He

was sentenced to not less than ten nor more than twenty years on

each of the five aggravated felonious sexual assault convictions,

to be served consecutively, and consecutive sentences of three

and a half to seven years on the remaining convictions. He filed

an appeal in which he raised four issues: (1) did the exclusion

of evidence of another man’s semen found in the rape kit violate

Hooper’s rights to due process, to production of all favorable

proof, to a fair trial by an impartial jury, and to

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confrontation; (2) did the late disclosure of expert witnesses

violate Hooper’s rights to due process, to a fair opportunity to

prepare for trial, to all favorable proofs, and to confrontation;

(3) did the failure to suppress evidence taken from the search of

his home violate Hooper’s right to be free from unreasonable

search and seizure; and (4) did the introduction of evidence of

Hooper’s stops at other houses violate the rules of evidence, due

process, his right to the presumption of innocence, and his right

to be proven guilty beyond a reasonable doubt.

The New Hampshire Supreme Court affirmed Hooper’s

conviction. The court concluded that Hooper did not present a

developed argument that his rights to due process and a fair

trial were violated by the trial court’s limitation on cross

examination of Pierce-Weeks, which precluded consideration of

those issues. Exclusion of the evidence of another man’s semen

found through testing on the rape kit also did not violate

Hooper’s right, under the New Hampshire Constitution, to present

all favorable proofs, because that right pertains to witnesses,

not specific testimony. 

The court also concluded that Pierce-Weeks’s testimony that

Hooper’s DNA was not found in the rape kit testing results was

not misleading, despite the test results showing another man’s

semen, because “the State clarified through its expert in sexual

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assault cases that there was no evidence that the defendant had

ejaculated in the victim’s vagina.” State v. Hooper, Case No.

2006-0708, at *1 (N.H. Oct. 19, 2007). With respect to Hooper’s

claim that his right to confrontation and cross examination were

violated, the court noted that the right was subject to

limitation to avoid questioning on improper matters. The court

concluded that Hooper did not make a sufficient showing that the

evidence of other semen was relevant and that its probative value

overcame the prejudice to the victim under New Hampshire’s rape

shield law, Revised Statutes Annotated (“RSA”) § 632-A:6, II.

On other issues, the supreme court held that the trial court

correctly allowed the testimony of the state’s expert witnesses,

subject to cross examination on the factual and evidentiary bases

for their opinions. The court also held that the trial court did

not err in failing to suppress items found in the search of

Hooper’s home, under a daytime search warrant, because the search

began before 9 p.m., and under Maine law, a search begun within

the time allowed can extend beyond the specified time. With

respect to the evidence of Hooper’s stops at other houses with

for sale signs, the court ruled, under New Hampshire law, that

the evidence was admissible because those actions were neither

prior “bad acts” nor criminal activity, there was clear proof

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that the stops had occurred, and the probative value 

substantially outweighed any unfair prejudice. 

Discussion

In support of his habeas petition, Hooper raised four

issues: that his Fifth and Sixth Amendment rights were violated

by the trial court’s limitation on cross examination about the

presence of another man’s semen; that expert witnesses were

allowed to testify although the state had not complied with the

requirements of Superior Court Rule 98; that the search pursuant

to a daytime warrant did not comply with statutory requirements;

and that evidence of Hooper’s stops at other houses violated his

rights to due process and a fair trial. The Warden moves for

summary judgment on the grounds that part of the cross

examination issue was procedurally defaulted and the remaining

parts do not support habeas relief, that the decision to admit

expert testimony was based on state law and Hooper fails to show

violation of a federal right, that the challenge to the evidence

found during the search cannot be raised on habeas review, and

that his claim challenging the evidence of his visits to other

houses does not raise a federal claim. Hooper objects to summary

judgment, challenging procedural default, raising an issue of

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newly discovered evidence, and arguing that his claims succeed on

the merits.

“It is a fundamental principle of the law of federal habeas

corpus . . . that no habeas claim is stated as to state court

criminal convictions unless the alleged errors are violations of

the Constitution, laws, or treaties of the United States.” Kater

v. Maloney, 459 F.3d 56, 61 (1st Cir. 2006). Therefore, to the

extent Hooper brings claims based on violations of the New

Hampshire Constitution, state law, and state court procedural

rules, those claims do not state grounds for habeas relief. 

When a state court has considered the issues raised, a writ

of habeas corpus will not be granted unless the state court’s

adjudication of the federal claims “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” or “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.” §

2254(d). “‘[C]learly established Federal law,’” as used in §

2254(d)(1), “‘refers to the holdings, as opposed to the dicta, of

[the Supreme] Court’s decisions as of the time of the relevant

state-court decision.’” Carey v. Musladin, 549 U.S. 70, 74

(2006) (quoting § 2254(d)). The state court’s factual findings

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are presumed to be correct unless the petitioner can show error

by clear and convincing evidence. § 2254(e).

A. Limitation on Cross Examination

The testing done on the rape kit results provided no

physical evidence that linked Hooper to the assault on RG. The

rape kit testing did show semen from someone other than Hooper. 

The defense tried unsuccessfully to cross examine the state’s

expert witness, Pierce-Weeks, about the semen found, arguing that

the evidence showed that RG had had sex with another man, who

could have been the attacker, and that the presence of semen

disproved part of Pierce-Weeks’s theory that the passage of time

and the fact that RG had showered could explain the absence of

physical evidence from Hooper. The trial court ruled that

because the state introduced evidence that Hooper had not

ejaculated while raping RG vaginally, the absence of his semen

was explained, without relying on the theories that the passage

of time or showering obliterated physical evidence left by

Hooper.

On appeal to the New Hampshire Supreme Court, Hooper stated

that the trial court’s decision not to allow the defense to

question Pierce-Weeks about the test results, showing another

man’s semen, violated his rights to due process, to produce all

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proofs favorable, to a fair trial, and to confrontation through

cross examination. In his brief, however, Hooper focused on the

right to cross examination. The New Hampshire Supreme Court

ruled that Hooper failed to present a developed argument based on

due process and a right to a fair trial, under the Fifth 

Amendment, and therefore, did not consider those theories. In

response to Hooper’s claim that the expert’s testimony was

misleading, in the absence of the evidence of other semen, the

court concluded that the evidence that Hooper had not ejaculated

explained the lack of physical evidence. The court also held

that Hooper’s right to cross examination and confrontation was

not violated because the rape shield law, RSA 632-A:6, II,

applied, and Hooper had not made the necessary showing to

overcome the statutory protection to the victim. 

 

1. Procedural Default

“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 an independent and adequate

state procedural rule.” Janosky v. St. Amand, 594 F.3d 39, 44

(1st Cir. 2010). To be independent, for purposes of procedural

default, “the state court judgment must clearly and expressly

rest on the prisoner’s failure to comply with the state

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procedural rule.” Pina v. Maloney, 565 F.3d 48, 52 (1st Cir.

2009) (citing Harris v. Reed, 489 U.S. 244, 266 (1989)); see also

Delaney v. Bartee, 522 F.3d 100, 104 (1st Cir. 2008). Adequacy

of the state ground depends on whether the state rule is

regularly and consistently enforced by the state court. Pina,

565 F.3d at 53; see also Pike v. Guarino, 492 F.3d 61, 74 (1st

Cir. 2007). When it applies, procedural default can be

surmounted only by a showing of cause for the default and actual

prejudice resulting from deprivation of a constitutional right. 

Yeboah-Sefah v. Ficco, 556 F.3d 53, 66 (1st Cir. 2009).

The New Hampshire Supreme Court declined to consider

Hooper’s claims that the trial court violated his Fifth Amendment

rights to due process and a fair trial by limiting cross

examination because those claims were not adequately briefed. 

The court cited State v. Blackmer, 149 N.H. 47, 49 (2003) in

support of its decision, noting that a passing reference to a

constitutional claim is deemed to be waived. In opposing summary

judgment, Hooper argues that his Fifth Amendment claims were

adequately briefed and that the New Hampshire Supreme Court

erroneously relied on the waiver rule.

For purposes of the habeas petition, the court has reviewed

Hooper’s brief filed in support of his appeal to the New

Hampshire Supreme Court. Although the brief states the claims of

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due process and a fair trial, under the Fifth Amendment, those

claims are not developed with argument and supporting citations

to authority. In contrast, Hooper’s claims asserting his right

to cross examination and confrontation under the Sixth Amendment

was properly developed.

Therefore, the New Hampshire Supreme Court properly invoked

the waiver rule as to Hooper’s Fifth Amendment claims. This

court has previously found that the waiver rule, applied in

Blackmer, is an adequate ground for the state court’s decision. 

Blackmer v. Warden, Civ. No. 05-cv-340-PB, 2008 WL 227267, at *8

(D.N.H. Jan. 28, 2008). Hooper has not addressed the showing of

cause and prejudice necessary to overcome procedural default. 

Janosky, 594 F.3d at 44. The Fifth Amendment claims will not be

considered.

2. Sixth Amendment Claims

Hooper contends that Pierce-Weeks’s testimony, explaining

that the lack of physical evidence from Hooper in testing of the

rape kit was due to the effects of the passage of time and

showering, was misleading because the other semen found in the

rape kit testing was not affected by either the passage of time

or showering. Hooper argues that his inability to introduce

evidence of the other semen left the misleading impression that

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the lack of his semen was explained and deprived him of a defense

that the lack of such evidence proved his innocence. As is noted

above, the New Hampshire Supreme Court held that Pierce-Weeks’s

testimony was not misleading because of the evidence that Hooper

did not ejaculate, providing another explanation for the lack of

his semen, and that Hooper had not overcome the protection

afforded to RG by the rape shield law.

The New Hampshire Supreme Court relied entirely on state law

in its decision that Hooper’s right to cross examination was not 

violated. As a result, that court’s decision was not an

adjudication of the federal claim. The Warden has not addressed

the standard of review under these circumstances. See Clements

v. Clarke, 592 F.3d 45, 52 (1st Cir. 2010) (de novo review of

unadjudicated claim); Zuluaga v. Spencer, 585 F.3d 27, 30 (1st

Cir. 2009) (deferential review when state law is more protective

than federal law). 

In addition, the Warden failed to address the merits of

Hooper’s federal claim under either standard. Instead, the

Warden argues that the supreme court made a factual finding that

Pierce-Weeks’s testimony was not misleading and argues that the

evidence of another man’s semen was irrelevant. The Warden does

not provide the applicable federal standard for Confrontation

Clause issues or make a persuasive argument that Hooper’s federal

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claim does not entitle him to relief under that standard.2 To

the extent the Warden intended to argue that any error in

limiting cross examination would be harmless, that analysis is

not sufficiently developed to be persuasive. Therefore, Hooper’s

Sixth Amendment confrontation claim cannot be resolved through

the present motion for summary judgment.

B. Admission of Expert Testimony

Hooper contends that the testimony of the state’s expert

witnesses was inadmissible because the prosecutor did not comply

2The Warden’s analysis of Federal Rule of Evidence 412 is

immaterial. The appropriate standard is based on Supreme Court

precedent:

The Confrontation Clause of the Sixth Amendment protects a

criminal defendant’s right to confront the witnesses against him

through cross examination. Melendez-Diaz v. Massachusetts, 129

S. Ct. 2527, 2531 (2009). A criminal defendant’s right to

confrontation and to present relevant testimony is subject to

reasonable limitations to prevent, “among other things,

harassment, prejudice, confusion of the issues, the witness’

safety, or interrogation that is repetitive or only marginally

relevant.” Michigan v. Lucas, 500 U.S. 145, 149 (1991) (internal

quotation marks omitted); see also Chambers v. Mississippi, 410

U.S. 284, 295 (1973). In considering whether a limitation on

cross examination violated the Confrontation Clause, the court

balances the interests involved in the case, weighing “the

importance of the evidence to an effective defense, . . . the

scope of the ban involved, . . . and the strength vel non of

state interests weighing against admission of the evidence.” 

White v. Coplan, 399 F.3d 18, 24 (1st Cir. 2005) (interpreting

Supreme Court cases).

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with the notice requirements of Superior Court Rule 98. He also

argues that he has newly discovered evidence pertinent to the

expert testimony issue. In response to the Warden’s motion for

summary judgment, Hooper cites the Fifth Amendment in support of

his claim and states that the trial court’s decision violated due

process. He cites no federal cases in support of his claim. See

Estelle v. McGuire, 502 U.S. 62, 68 (1991) (“[I]t is not the

province of a federal habeas court to reexamine state-court

determinations on state-law questions.”). Therefore, Hooper has

not sufficiently developed his federal claim to permit review.3

Hooper also contends that he is entitled to habeas relief

because he now has new evidence that undermines the expert’s

opinions about the fingerprint and boot print evidence. The “new

evidence” that Hooper offers is an excerpt from a publication on

forensic science.4 Hooper contends that the excerpt shows that

3In addition, because there is no general constitutional

right to discovery in a criminal case, to support a claim of a

violation of federal law, Hooper would have to show that the

delayed disclosures violated the rights recognized in Brady v.

Maryland, 373 U.S. 83, 87 (1963), which he has not argued. See,

e.g., United States v. DeCologero, 530 F.3d 36, 64 (1st Cir.

2008); United States v. Rivera-Hernandez, 497 F.3d 71, 79 (1st

Cir. 2007).

4The excerpt is taken from a publication titled

“Strengthening Forensic Science in the United States: A Path

Forward,” produced by the Committee on Identifying the Needs of

the Forensic Science Community, Committee on Science, Technology,

and Law Policy and Global Affairs, Committee on Applied and

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the method of fingerprint and boot print analysis used by the

state’s expert at Hooper’s trial “has been found lacking by the

Academy of Sciences.” The excerpt discusses “friction ridge

identification” and the “ACE-V” method for analyzing fingerprints

and concludes that additional research is necessary to improve

the accuracy of the tests. The excerpt also discusses impression

evidence, such as shoe prints, and points out challenges in

making identifications based on that evidence. Hooper makes no

comparison between the information in the excerpt and the

testimony of the expert at his trial. Hooper’s counsel states

only that he had “a duty to bring this to the court’s attention,”

and suggests that the new evidence would be a basis for a new

trial. The cited legal support for his new evidence claim are

New Hampshire cases which hold that newly discovered evidence may

provide a basis for a new trial. Because Hooper was tried in

state court, a motion for a new trial would have to be filed

there.

As the Warden points out, Hooper has not raised the new

evidence claim in state court. Because that claim has not been

Theoretical Statistics Division on Engineering and Physical

Science, and National Research Council of the National Academies,

and published by The National Academies Press. The excerpt

provided by Hooper addresses collection and analysis of latent

prints.

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exhausted and provides no basis for habeas relief, it is not

considered here. See § 2254(b).

C. Denial of Motion to Suppress

Hooper did not offer additional briefing on his claim

challenging the search of his house, for purposes of summary

judgment, and instead relied on the briefing provided in his

petition. In his petition, Hooper states that the state failed

to comply with the statutory requirements for obtaining and

executing a search warrant under New Hampshire and Maine law. As

is noted above, however, state law is not a cognizable basis for

habeas relief.

To the extent Hooper intended to raise a Fourth Amendment

claim, that too fails. “[W]here the State has provided an

opportunity for full and fair litigation of a Fourth Amendment

claim, the Constitution does not require that a state prisoner be

granted federal habeas corpus relief on the ground that evidence

obtained in an unconstitutional search or seizure was introduced

at his trial.” Stone v. Powell, 428 U.S. 465, 482 (1976). The

trial court held a hearing on Hooper’s motion to suppress the

evidence and concluded that the evidence was admissible because

the search began within the time allowed by the warrant. The New

Hampshire Supreme Court heard the claim and affirmed. Therefore,

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the claim is precluded under the rule announced in Stone v.

Powell.

D. Evidence of Stops at Other Houses

Hooper does not clearly raise a federal basis for his claim

that the evidence of his stops at other houses with for sale

signs, before the attack on RG, was inadmissible. To the extent

he argues that the evidence of his stops at other houses

constituted evidence of prior bad acts that violated his right to

due process, his claim fails. The New Hampshire Supreme Court

correctly held that Hooper’s stops at two houses with for sale

signs before he stopped at RG’s house did not involve bad acts

because at the first two houses he merely inquired about the

house for sale and no criminal conduct occurred. In addition,

while it might be possible to show that admission of prior bad

act evidence violated due process, this is not the rare case that

presents extreme facts which might satisfy that standard. See

Kater v. Maloney, 459 F.3d 56, 64 (1st Cir. 2006).

Conclusion

For the foregoing reasons, the Warden’s motion for summary

judgment (document no. 11) is granted as to the petitioner’s

claims except for his claim that the limitations imposed on cross

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examination violated his rights under the Confrontation Clause of

the Sixth Amendment.

The Warden shall file a motion for summary judgment

addressing the remaining claim on or before April 21, 2010.

Hooper, who is now proceeding pro se, will have until May 21,

2010, to file a response to the Warden’s motion.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

March 23, 2010

cc: Oliver Hooper, #78519, pro se

Elizabeth C. Woodcock, Esquire

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