UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

David Fischer,

Petitioner

v. Civil No. 05-cv-35-SM

Opinion No. 2006 DNH 099

New Hampshire Parole Board,

Respondent

O R D E R

In September of 1996 David Fischer was convicted, in state

court, of attempted first degree assault and witness tampering. 

He was sentenced to serve eleven to twenty-two years in the New

Hampshire State Prison. Over the course of the next few years,

he pursued a variety of direct and collateral attacks upon his

convictions and sentence in a number of state judicial and

administrative forums. When those efforts proved unsuccessful,

he filed a petition seeking federal habeas corpus relief in this

court. See 28 U.S.C. § 2254. 

In support of his habeas corpus petition, Fischer advances a

total of eleven grounds for relief, three of which were not

properly exhausted. But, when given the opportunity to return to

state court to exhaust those claims, Fischer declined. See

Petitioner’s waiver of unexhausted claims (document no. 6). The

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State moves for summary judgment as to the remaining eight

grounds, saying they are either procedurally barred or lack

merit. 

Although Fischer has filed a general objection, he has not

responded in any substantive way to the arguments advanced by the

State, nor has he challenged the State’s statement of material

facts. Instead, he simply notes his general objection to the

motion for summary judgment and, in support of that objection,

“incorporates by reference documentation previously submitted to

this court.” Petitioner’s objection (document no. 15). By

failing to file a substantive objection to the State’s motion for

summary judgment, Fischer has (among other things) failed to

articulate why he believes that, as to each of the claims

advanced in his petition, it is not procedurally barred and/or

how the underlying state court’s resolution of that claim was

contrary to, or involved an unreasonable application of, clearly

established federal law. 

For the reasons set forth below, the State’s motion for

summary judgment is granted. 

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Standard of Review

I. Summary Judgment. 

When ruling on a party’s motion for summary judgment, the

court must “view the entire record in the light most hospitable

to the party opposing summary judgment, indulging all reasonable

inferences in that party’s favor.” Griggs-Ryan v. Smith, 904

F.2d 112, 115 (1st Cir. 1990). Summary judgment is appropriate

when the record reveals “no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter

of law.” Fed. R. Civ. P. 56(c). In this context, “a fact is

‘material’ if it potentially affects the outcome of the suit and

a dispute over it is ‘genuine’ if the parties’ positions on the

issue are supported by conflicting evidence.” Intern’l Ass’n of

Machinists & Aerospace Workers v. Winship Green Nursing Ctr., 103

F.3d 196, 199-200 (1st Cir. 1996) (citations omitted). 

Nevertheless, if the non-moving party’s “evidence is merely

colorable, or is not significantly probative,” no genuine dispute

as to a material fact has been proved, and “summary judgment may

be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-

50 (1986) (citations omitted). The key, then, to defeating a

properly supported motion for summary judgment is the nonmovant’s ability to support his or her claims concerning disputed

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material facts with evidence that conflicts with that proffered

by the moving party. See generally Fed. R. Civ. P. 56(e). It

naturally follows that while a reviewing court must take into

account all properly documented facts, it may ignore bald

assertions, unsupported conclusions, and mere speculation. See

Serapion v. Martinez, 119 F.3d 982, 987 (1st Cir. 1997).

Here, because Fischer does not contest the factual

statements recited in the State’s motion for summary judgment,

the court will take those facts as admitted. See Local Rule

7.2(b)(2) (“A memorandum in opposition to summary judgment shall

incorporate a short and concise statement of material facts,

supported by appropriate record citations, as to which the

adverse party contends a genuine dispute exists so as to require

trial. All properly supported material facts set forth in the

moving party’s factual statement shall be deemed admitted unless

properly opposed by the adverse party.”). See also In re Spigel,

260 F.3d 27, 31 (1st Cir. 2001). 

II. AEDPA Standard for Exhausted Claims.

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

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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). 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 United

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

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

In his petition, Fischer attacks the state court’s decisions

pursuant to section 2254(d)(1). So, to prevail he must

demonstrate that the state court’s rejection of his claims was

either contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court. See generally Williams, 529 U.S. at 410-13 (explaining

the difference between a decision that is “contrary to” Supreme

Court precedent, and one that involves an “unreasonable

application” of such precedent, and also explaining that an

“incorrect” decision is not necessarily an “unreasonable” one). 

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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).

Of course, “AEDPA’s strict standard of review only applies

to a ‘claim that was adjudicated on the merits in state court

proceedings.’” Norton v. Spencer, 351 F.3d 1, 5 (1st Cir. 2003)

(quoting Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001)). 

“If a claim was not adjudicated on the merits in a state court

proceeding, then the issue is reviewed de novo.” Norton, 351

F.3d at 5 (citation omitted). 

III. Procedurally Barred Claims. 

To pursue a habeas claim in federal court that was

procedurally defaulted in state court a petitioner must satisfy

the “cause and prejudice” test or, in the alternative,

demonstrate that a fundamental miscarriage of justice would

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result if he were not allowed to pursue that claim. As the

Supreme Court observed: 

In all cases in which a state prisoner has defaulted

his federal claims in state court pursuant to an

independent and adequate state procedural rule, federal

habeas review of the claims is barred unless the

prisoner can demonstrate cause for the default and

actual prejudice as a result of the alleged violation

of federal law, or demonstrate that failure to consider

the claims will result in a fundamental miscarriage of

justice. 

Coleman v. Thompson, 501 U.S. 722, 750 (1991). See also Sawyer

v. Whitley, 505 U.S. 333, 338-39 (1992). A fundamental

miscarriage of justice occurs when “a constitutional violation

has probably resulted in the conviction of one who is actually

innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986). That

exception to the procedural default bar, however, is not

applicable in this case since Fischer has not attempted to

demonstrate that he is actually innocent of the crimes for which

he was convicted. 

Discussion

As noted above, Fischer’s petition for habeas corpus relief

raises eleven claims, three of which are unexhausted and have

been waived. The remaining claims, as construed by the

Magistrate Judge, are as follows:

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1. There was insufficient evidence at trial of Fischer’s

criminal intent to cause serious bodily injury to

sustain a guilty verdict; 

2. There was insufficient evidence at trial of Fischer

having taken a substantial step toward the commission

of the crime of attempted first degree assault to

sustain a guilty verdict; 

3. The jury instructions were insufficient to inform the

jury of the elements of attempted first degree assault; 

4. Trial counsel provided constitutionally deficient

representation by failing to propose sufficient jury

instructions, pursuing a trial strategy that reduced

the State’s burden of proof with regard to the elements

of first degree assault, failing to adequately

investigate the charged criminal conduct, failing to

understand the issues presented in the case, failing to

procure the services of an expert witness, failing to

request a jury view, and failing to properly argue a

“Giglio” issue; 

5. The trial court failed to properly instruct the jury on

“serious bodily injury,” “substantial step,” and the

lesser included offense of simple assault; 

6. Fischer’s sentences were unconstitutionally cruel and

unusual; 

8. Fischer’s sentences were grossly disproportionate to

the crimes committed; and

11. Fischer’s due process rights were violated by the

prosecutor’s references to him as a liar during trial.

See Order of Magistrate Judge dated May 16, 2005 (document no.

5). 

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I. Procedurally Defaulted Claims.

The State asserts that Fischer’s sufficiency of the evidence

claims (claims 1 and 2), his claims regarding jury instructions

(claims 3 and 5), and his prosecutorial misconduct claim (claim

11) are all procedurally barred because Fischer failed to raise

timely objections at his trial and because he failed to raise

those issues in his direct appeal to the New Hampshire Supreme

Court. 

With regard to claims 3 and 11, it is unclear whether

Fischer ever presented them to the New Hampshire Supreme Court

(or even a lower state court). And, because Fischer’s

“objection” to the State’s motion for summary judgment is wholly

lacking in substance, Fischer has not demonstrated that those

claims have been exhausted. Nevertheless, even assuming Fischer

presented those issues in one or more of his various post-trial

collateral attacks on his convictions, it is clear that those

claims were procedurally defaulted when Fischer failed to raise

them in his direct appeal. See State v. Fischer, 143 N.H. 311

(1999). Consequently, even if he had raised them in a state

proceeding collaterally attacking his convictions, the court

would have concluded that they had been forfeited. See generally

Martineau v. Perrin, 119 N.H. 529, 531 (1979) (“We have firmly

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and consistently required that objections and exceptions be taken

at trial to preserve issues for our consideration, especially

with regard to jury instructions.”); Avery v. Cunningham, 131

N.H. 138, 143 (1988) (“[S]ince the petitioner had both knowledge

of the issue and an opportunity to raise it properly before this

court on direct appeal, but failed to do so, he has procedurally

waived the issue for collateral review.”). Finally, because

Fischer has failed to satisfy either prong of the “cause and

prejudice” test, he cannot pursue his procedurally defaulted

claims (claims 3 and 11) in this forum. See, e.g., McLaughlin v.

Moore, 152 F. Supp. 2d 123, 128 (D.N.H. 2001). 

It is, however, less clear that claims 1 and 2

(insufficiency of the evidence) have been procedurally defaulted. 

Although, the State argued in its brief to the New Hampshire

Supreme Court that Fischer was procedurally barred from pursuing

those claims, the court declined to address that issue. Instead,

it disposed of those claims on the merits. See State v. Fischer,

slip op. at 2 (N.H. Oct. 21, 2004) (“[D]efendant also contests

the sufficiency of the evidence and his counsel’s failure to move

for dismissal. Even if properly before us, this argument has no

merit.”) Accordingly, that decision on the merits is properly

subject to constitutional challenge in this habeas proceeding. 

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See, e.g., Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (“State

procedural bars are not immortal, however; they may expire

because of later actions by state courts. If the last state

court to be presented with a particular federal claim reaches the

merits, it removes any bar to federal-court review that might

otherwise have been available.”) 

Fischer’s fifth claim (faulty jury instructions on “serious

bodily injury” and “substantial step”) presents a different

problem. In his collateral attacks on his convictions before the

state courts, Fischer presented those issues in the context of an

ineffective assistance of counsel claim. Plainly, he adopted

that strategy to avoid having those claims procedurally barred. 

That is to say, if he had raised them as free-standing challenges

to the jury instructions, the court would have declared them

procedurally barred, since Fischer failed to raise them in his

direct appeal. See Martineau, 119 N.H. at 531-32. In this

proceeding, however, Fischer has abandoned his ineffective

assistance claim and attempts to pursue those challenges to his

convictions as free-standing constitutional claims. Thus, it is

apparent why the State asserts those claims have been

procedurally defaulted. Reading Fischer’s petition literally,

the State is correct: those claims are procedurally barred. 

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Nevertheless, because Fischer is pro se, the court will

treat his petition as advancing those claims in the context of an

ineffective assistance claim. Thus, the court declines the

State’s invitation to hold that claim 5 of Fischer’s appeal is

procedurally defaulted. 

II. State Decisions on Fischer’s Collateral Attacks. 

While claims 3 and 11 are procedurally barred, the remainder

of Fischer’s claims (1, 2, 4, 5, 6, and 8) are not. Claims 1, 2,

4, and 5 were addressed on the merits by both the New Hampshire

Superior Court (decisions dated June 11, 2002, and April 25,

2003) and the New Hampshire Supreme Court (decision dated October

21, 2004). Claims 6 and 8 were addressed (though not resolved on

the merits) in the Superior Court’s order on Fischer’s motion to

vacate and re-sentence (dated January 22, 2003). 

A. Sufficiency of the Evidence.

In its order dated October 21, 2004, the New Hampshire

Supreme Court rejected Fischer’s sufficiency of the evidence

claims, concluding that “[t]he victim’s testimony concerning the

defendant’s statements as he was choking her was sufficient to

convict him of attempted first degree assault; her testimony that

he yelled at her that if she called the police, he would kill

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her, provided a basis for his witness tampering convictions.” 

Id. at 2-3. See also N.H. Rev. Stat. Ann. (“RSA”) 629:1

(describing the elements of attempt); RSA 631:1 (first degree

assault); and RSA 641:5 (tampering with witnesses and

informants). Fischer has failed to articulate how that decision

is either contrary to, or an unreasonable application of, Supreme

Court precedent. In fact, it is neither. Consequently, the

State is entitled to summary judgment as to claims 1 and 2 of

Fischer’s petition. 

B. Ineffective Assistance of Counsel. 

The state superior court addressed, and rejected, Fischer’s

ineffective assistance claims in its orders dated June 11, 2002

(claim 4) and April 24, 2003 (claim 5). The New Hampshire

Supreme Court affirmed those decisions in its order dated October

21, 2004. Both courts applied the appropriate test for

determining whether trial counsel provided constitutionally

deficient representation, see generally Strickland v. Washington,

466 U.S. 668 (1984), and Fischer has failed to describe how

either court’s resolution of his claims was contrary to, or

amounted to an unreasonable application of, Supreme Court

precedent. As to claims 4 and 5 advanced in Fischer’s petition,

then, the State is entitled to summary judgment. 

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III. De Novo Review of Fischer’s Claims Regarding his Sentence.

Fischer’s assertions that his sentences are

unconstitutionally cruel and unusual (claim 6) and grossly

disproportionate to the crimes committed (claim 8) were

referenced in the superior court’s order dated January 22, 2003. 

But, because those claims had been resolved against Fischer by

the Sentencing Review Division and because the New Hampshire

Supreme Court declined to accept Fischer’s appeal, the superior

court declined to address them on the merits. 

As to defendant’s first two claims regarding the

severity of his sentence, the Court notes that the

Sentence Review Division affirmed the sentences in

these cases. Thereafter, the defendant filed a

petition for Writ of Certiorari with the New Hampshire

Supreme Court, arguing that the decision of the

Sentence Review Division violated various

constitutional rights. The Supreme Court denied the

defendant’s writ. The defendant then filed with the

Supreme Court a request for a written determination on

the merits of the Supreme Court’s denial of his writ. 

This, too, was denied. Accordingly, this Court

declines to review this issue any further. 

Id. at 2. The State concedes that neither the superior court nor

the New Hampshire Supreme Court addressed the merits of Fischer’s

claims concerning the severity of his sentence and, therefore,

urges the court to review those claims de novo. Defendant’s

memorandum (document no. 12) at 32 (“Because the state court did

not address the merits of [claims 6 and 8], AEDPA’s strict

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standards do not apply, and this Court will review the claim de

novo.”). See also Norton, 351 F.3d at 5 (1st Cir. 2003);

Fortini, 257 F.3d at 47. 

The Eighth Amendment to the Constitution provides that

“[e]xcessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.” A

majority of the Justices of the Supreme Court have interpreted

that constitutional provision to include “a narrow

proportionality principle” that “applies to noncapital

sentences.” Harmelin v. Michigan, 501 U.S. 957, 996-97 (1991)

(Kennedy, J., concurring). See also Ewing v. California, 538

U.S. 11 (2003). Consequently, the Court “has on occasion stated

that the Eighth Amendment prohibits imposition of a sentence that

is grossly disproportionate to the severity of the crime. But,

outside the context of capital punishment, successful challenges

to the proportionality of particular sentences have been

exceedingly rare.” Ewing, 538 U.S. at 21 (citation and internal

punctuation omitted). This is not one of those exceedingly rare

cases. Fischer’s sentences are neither grossly disproportionate

to the crimes committed nor are they cruel and unusual. 

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Fischer was convicted of attempted first-degree assault, a

class A felony, for which he received the maximum statutory

sentence of 71⁄2 to 15 years. He was also convicted of witness

tampering, a class B felony, for which he received the maximum

statutory sentence of 31⁄2 to 7 years, consecutive (i.e., a total

sentence of 11 to 22 years). In arguing to the state courts that

his sentences were both disproportionate to the crimes committed

and cruel and unusual, Fischer asserted that he did not intend to

cause (and, in fact, claimed he did not cause) physical injury to

the victim. But, as the State points out, the Supreme Court has

noted that “the presence or absence of violence does not always

affect the strength of society’s interest in deterring a

particular crime or in punishing a particular criminal.” Rummel

v. Estelle, 445 U.S. 263, 275 (1980). 

Here, the sentencing court was aware of the following:

independent of the crimes of conviction, Fischer had physically

abused the victim on prior occasions, including two on which he

had choked her (on one of those occasions, he rendered the victim

unconscious); he repeatedly violated a restraining order obtained

by the victim; despite her efforts to conceal her location and

telephone number from Fischer, he lied to a local business to

obtain her phone number and then illegally entered her basement

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and tapped her phone lines. The sentencing court was also aware

that, during trial, Fischer attempted to intimidate the victim as

she testified, by staring at her and mouthing vulgarities. The

court also learned that, during one of the breaks in his trial,

Fischer attacked the prosecutor in the courthouse hallway and had

to be subdued by security officers. See Trial transcript, day 1,

at 18. See also Trial transcript, day 2, at 85-86 (Fischer was

gesturing in a vulgar way at the prosecutor and attempting to

intimidate either him or the victim). And, finally, the court

knew that, during his pretrial confinement, Fischer had attacked

other inmates, as well as a corrections officer (whom Fischer

admitted biting). See Trial transcript, day 4, at 27-28. 

Plainly, the court was well aware that Fischer is a violent and

dangerous criminal. 

After hearing all the evidence against Fischer during trial,

observing Fischer during that period, and reviewing the

sentencing investigation report, the court said: 

I have reviewed all of the material that has been

submitted, including the probation report, and I, of

course, sat through the trial in this case, and I’m

very familiar with the facts. I also sat through some

prior proceedings with you. It is my belief, Mr.

Fischer, that you are a very dangerous individual. You

are very manipulative, and you have conned many people. 

This is one day you do not get to con the Judge. You

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have indicated that you are sorry for these events,

however, I don’t see any serious remorse. Seems to me

you are sorry that you are in the situation you’re in,

and that is the remorse I see. I’m going to accept the

State’s recommendation in this case, based on the

jury’s verdict in these two matters [and impose the

maximum sentence allowed by state law]. 

Trial transcript, day four, at 35-36. 

Given the nature of the crimes of which Fischer was

convicted, the circumstances surrounding his commission of those

crimes, and his violent and dangerous nature, the trial court’s

decision to sentence him to the maximum statutory sentence on

both crimes of conviction did not run afoul of the Eighth

Amendment. See generally Ewing, supra; Rummel, supra. For the

foregoing reasons, as well as those set forth in the State’s

memorandum (document no. 12), the State is entitled to judgment

as a matter of law as to claims 6 and 8 in Fischer’s habeas

petition. 

Conclusion

The State’s motion for summary judgment as to all claims

advanced in Fischer’s petition for habeas corpus relief (document

no. 12) is granted. The Clerk of Court shall enter judgment in

accordance with this order and close the case. 

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SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

August 29, 2006

cc: David Fischer, pro se

Susan P. McGinnis, Esq.

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