UNITED STATES DISTRICT COURT FOR THE
 

DISTRICT OF NEW HAMPSHIRE
 

Christopher Fournier 

v. Civil No. 08-cv-338-JD 

Warden, Northern New Hamoshire 

Correctional Facility 

o R D E R 

Christopher Fournier, proceeding pro se, filed a petition 

for habeas corpus relief, pursuant to 28 U.S.C. § 2254, from his 

state court conviction. Counsel was appointed later to represent 

him. The court previously granted summary judgment in favor of 

the Warden on three of Fournier's claims. Fournier added a 

fourth claim while the Warden's first motion for summary judgment 

was pending. The Warden now moves for summary judgment on the 

fourth claim. Fournier, who is represented by counsel, did not 

file a response to the motion for summary judgment. 

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. 

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

Proceedings. Ordinarily, summary judgment is appropriate when 

Case 1:08-cv-00338-JD Document 58 Filed 11/03/10 Page 1 of 6
"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 

Fournier was involved in a physical altercation with his exgirlfriend, Tammy Robinson, early in the morning of January 22, 

2006. As a result, Robinson sustained injuries, including a 

lacerated spleen, which required surgery and a six-day stay in 

the hospital. Fournier was arrested the same day and charged 

with two counts of assault and one count of obstructing the 

reporting of a crime. On October 6, 2006, he was convicted on 

the charge of second degree assault and was acquitted of the 

other charges. 

Fournier and Robinson testified at trial, along with other 

witnesses. Fournier moved in limine to be permitted to cross2
 

Case 1:08-cv-00338-JD Document 58 Filed 11/03/10 Page 2 of 6
examine Robinson about another incident involving Robinson in 

which she was charged with domestic simple assault following an 

altercation with her daughter. Defense counsel asserted that 

Robinson made false statements to the police about the incident 

and sought to introduce that evidence to show Robinson's 

character for untruthfulness. 1 The trial court held a hearing 

and ruled that the defense could not ask Robinson about the 

incident. 

On appeal to the New Hampshire Supreme Court, Fournier 

argued that the trial court erred in precluding defense counsel 

from cross-examining Robinson about the incident ubearing on her 

character for truthfulness." Fournier argued that the proposed 

cross-examination was admissible under New Hampshire Rule of 

Evidence 608(b) and was not inadmissible under Rule 403. The New 

Hampshire Supreme Court held that any error in limiting the 

cross-examination of Robinson under New Hampshire Rule of 

Evidence 608(b) was harmless and affirmed Fournier's conviction. 

Discussion 

For purposes of habeas corpus, Fournier contends that 

the trial court violated his Fifth and Fourteenth Amendment 

lDefense counsel also argued the evidence was pertinent to 

Robinson's character for violence and alcohol abuse. 

3
 

Case 1:08-cv-00338-JD Document 58 Filed 11/03/10 Page 3 of 6
rights to confrontation and New Hampshire evidentiary rules by 

precluding cross-examination of the victim ~on a proper matter of 

inquiry," which was her statement to police about another 

assa4lt.2 The Warden moves for summary judgment on the grounds 

that Fournier did not exhaust the claim in state court and that 

now the claims would be procedurally barred in state court. As 

is noted above, Fournier did not file a response to the Warden's 

motion. 

~[AJ state prisoner must exhaust available state remedies 

before seeking federal habeas relief." Janosky v. St. Amand, 594 

F.3d 39, 50 (1st Cir. 2010) (citing 28 U.S.C. § 2254(b) (1) (A)). 

To support federal habeas relief, the petitioner must show that 

~the state court's decision 'was contrary to, or involved an 

unreasonable application of, clearly established Federal law, as 

established by the Supreme Court of the United States.'" Abrante 

v. St. Arnand, 595 F.3d 11, 15 (1st Cir. 2010) (quoting § 

2254(d) (1)). ~In order to exhaust a federal claim, a petitioner 

must present that claim fairly and recognizably to the state 

courts." Janosky, 594 F.3d at 50 (emphasis added). 

2The right to confrontation is found in the Confrontation 

Clause of the Sixth Amendment. Fournier may have intended to 

assert his constitutional right to present a complete defense. 

See United States v. DeCologero, 530 F.3d 36, 72-73 (1st Cir. 

2008) (discussing the interaction of the Fifth and Sixth 

Amendments) . 

4
 

Case 1:08-cv-00338-JD Document 58 Filed 11/03/10 Page 4 of 6
Specifically, a petitioner must present the 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." Id. 

In Fournier's state case, he raised only state evidentiary 

grounds to support his claim. He did not raise or even suggest a 

federal ground for his claim. Therefore, Fournier did not 

exhaust his claim that the state court violated his Fifth and 

Fourteenth Amendment rights by barring cross-examination of 

Robinson about the incident involving an assault on her daughter. 

Because the claim is unexhausted, it does not provide a 

basis for habeas corpus relief under § 2254. Therefore, the 

Warden is entitled to summary judgment on Fournier's last claim. 

Conclusion 

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

judgment (document no. 57) is granted. 

The clerk of court shall enter judgment in accordance with 

this order and the court's previous order granting summary 

judgment (document no. 56) and close the case. 

The petitioner has not made a substantial showing of the 

denial of a constitutional right. Therefore, the court declines 

to issue a certificate of appealability, but the petitioner may 

seek a certificate from the court of appeals under Federal Rule 

5
 

Case 1:08-cv-00338-JD Document 58 Filed 11/03/10 Page 5 of 6
of Appellate Procedure 22. See 28 U.S.C. 2253(c)i Rule 11, 

Federal Rules Governing Section 2254 Cases. 

SO ORDERED. 

A. DiClerico, Jr 

States District J 

November 3, 2010 

cc:	 Harry C. Batchelder, Jr., Esquire 

Stephen D. Fuller, Esquire 

Elizabeth C. woodcock, Esquire 

6
 

Case 1:08-cv-00338-JD Document 58 Filed 11/03/10 Page 6 of 6