UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Lucio Eduardo Fernandez,

Petitioner

v. Civil No. 06-cv-281-SM

Opinion No. 2008 DNH 126

Richard M. Gerry, Warden,

New Hampshire State Prison,

Respondent

O R D E R

Lucio Fernandez, an inmate at the New Hampshire State

Prison, petitions for a writ of habeas corpus. 28 U.S.C. § 2254. 

He argues that his incarceration is unconstitutional because his

conviction for second-degree murder resulted from a denial of due

process of law. Before the court is respondent’s motion for

summary judgment. Petitioner objects. For the reasons given,

respondent’s motion for summary judgment is granted.

Background

After a jury trial in the New Hampshire Superior Court,

petitioner was convicted of second-degree murder for the stabbing

death of Brian O’Neill. His conviction was affirmed on appeal. 

State v. Fernandez, 152 N.H. 233 (2005). 

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The opinion in petitioner’s direct appeal describes the

following relevant facts: 

The defendant stabbed another man to death. After the

stabbing, the defendant threw away the knife and fled

the scene. He later fled the East Coast. United

States Marshals arrested him approximately seventeen

months later in Los Angeles.

At trial, the defendant admitted that he stabbed

the victim, but claimed to have acted in self-defense.

Id. at 235.

After he lost his appeal, Fernandez petitioned this court

for a writ of habeas corpus, asserting six grounds for relief. 

He claimed that his conviction was obtained in violation of his

right to due process and a fair trial because the trial court:

1. denied his request for voir dire questions

regarding racial and geographic bias;

2. refused to conduct voir dire of the only juror of

color, before designating her as an alternate,

when she was alleged to have been sleeping during

closing arguments;

3. allowed the prosecutor to refer to his actions as

“murder” during the trial and to elicit the term

“murder” from testifying witnesses to describe his

actions;

4. allowed evidence to be introduced at trial that

he, after leaving the jurisdiction where the crime

was committed, appeared on a national television

show about people wanted by the police;

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5. allowed a duffel bag and its contents, which were

guns allegedly owned by him, to be introduced as

evidence at trial;

6. allowed the medical examiner to testify that in

his expert opinion various knife wounds on the

deceased were evidence of “torture” or “taunting”

injuries.

On initial review, the magistrate judge determined that only the

first of petitioner’s six claims had been properly exhausted. 

See 28 U.S.C. § 2254(b)(1)(A). Petitioner returned to the

Superior Court and moved to vacate his conviction and sentence

or, in the alternative, to be given a new trial. In that motion,

and apparently for the first time, he cast his five remaining

claims in constitutional terms. The trial court, however, noted

that petitioner’s motion presented “the same issues previously

decided by the Supreme Court” and denied it on grounds that

“[t]he Supreme Court Mandate 152 N.H. 233 (2005), is the law of

the case.” Petitioner filed a notice of discretionary appeal,

which the New Hampshire Court declined to accept, thus exhausting

his claims. 

The Legal Standard

Federal habeas corpus relief may be granted “only on the

ground that [a petitioner] is in custody in violation of the

Constitution or laws or treaties of the United States.” 28

U.S.C. § 2254(a). Thus, “federal habeas corpus relief does not

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lie for errors of state law.” Evans v. Verdini, 466 F.3d 141,

145 (1st Cir. 2006) (quoting Lewis v. Jeffers, 497 U.S. 764, 780

(1990)).

Passage of the Anti-Terrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), has significantly

limited the power of the federal courts to grant habeas corpus

relief to state prisoners. When a petitioner’s claim “was

adjudicated on the merits in State court proceedings,” id., a

federal court may disturb a state conviction only when: (1) the

state court 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); or (2) 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). 

“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

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Supreme] Court has on a set of materially indistinguishable

facts.” Williams, 529 U.S. at 412-13. “Under the ‘unreasonable

application’ clause, a federal habeas court may grant the writ if

the state court identifies the correct governing legal principle

from [the Supreme] Court’s decisions but unreasonably applies

that principle to the facts of the prisoner’s case.” Williams,

529 U.S. at 413. A court unreasonably applies governing legal

principles if it “(I) applies those principles to the facts of

the case in an objectively unreasonable manner; (ii) unreasonably

extends clearly established legal principles to a new context

where they should not apply; or (iii) unreasonably refuses to

extend established principles to a new context where they should

apply.” Sleeper v. Spencer, 510 F.3d 32, 38 (1st Cir. 2007)

(citing L’Abbe v. DiPaolo, 311 F.3d 93, 96 (1st Cir. 2002)).

“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); citing Ellsworth v.

Warden, 333 F.3d 1, 6 (1st Cir. 2003)). “A matter is

‘adjudicated on the merits’ if there is a ‘decision finally

resolving the parties’ claims, with res judicata effect, that is

based on the substance of the claim advanced, rather than on a

procedural, or other, ground.’” Teti v. Bender, 507 F.3d 50, 56

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(1st Cir. 2007) (quoting Sellan v. Kuhlman, 261 F.3d 303, 311 (2d

Cir. 2001)). “When the state court has never addressed the

particular federal claim at issue, federal review is de novo.” 

Dugas v. Coplan, 506 F.3d 1, 7 (1st Cir. 2007) (citing Pike v.

Guarino, 492 F.3d 61, 67 (1st Cir. 2007)). “As [the court of

appeals for this circuit has] noted, a federal court ‘can hardly

defer to the state court on an issue that the state court did not

address.’” Dugas, 506 F.3d at 7 (quoting Fortini, 257 F.3d at

47). 

Here, the strict standard of review applies to petitioner’s

first claim, as that claim was adjudicated on the merits in the

New Hampshire state courts. See Fernandez, 152 N.H. at 237-39. 

Because there is no reasoned state court decision addressing

petitioner’s remaining claims after they were presented in

constitutional terms, those claims are subject to de novo review.

Discussion

Claim 1

Petitioner is from Lawrence, Massachusetts, and he is

Hispanic. Brian O’Neill, the person petitioner was convicted of

stabbing to death, was not Hispanic. According to petitioner,

the trial court denied him a fair trial, in violation of the

Fourteenth Amendment’s due process clause, by declining to ask

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two voir dire questions intended to probe juror attitudes about

Hispanic individuals from Cuba and residents of Lawrence (and

other Massachusetts municipalities with large Hispanic

populations). 

“The [United States] Supreme Court has explained that

federal authority over voir dire in cases tried in state courts

is ‘limited to enforcing the commands of the United States

Constitution.’” Kater v. Maloney, 459 F.3d 56, 66 (1st Cir.

2006) (quoting Mu’Min v. Virginia, 500 U.S. 415, 422 (1991)). 

In Ham v. South Carolina, the Supreme Court held that a

trial court that refused a defendant’s requests for voir dire on

racial prejudice violated the Fourteenth Amendment due process

rights of an African-American defendant who appeared to have been

known locally for work with various civil rights groups and whose

“basic defense at the trial was that law enforcement officers

were ‘out to get him’ because of his civil rights activities, and

that he had been framed on the drug charge.” 409 U.S. 524, 525

(1973). In Ristaino v. Ross, the Supreme Court expressly

declined to construe Ham to require voir dire on racial prejudice

“whenever there may be a confrontation in a criminal trial

between persons of different races or different ethnic origins.” 

424 U.S. 589, 590 (1976). According to the Court: “The mere fact

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that the victim of the crimes alleged [in Ristaino] was a white

man and the defendants were Negroes was less likely to distort

the trial than were the special factors involved in Ham.” 424

U.S. at 597. That is, in Ham, but not in Ristaino, “[r]acial

issues were . . . inextricably bound up with the conduct of the

trial.” Id. In a third case, in which it vacated the

petitioner’s death sentence but not his murder conviction, the

Supreme Court held that “a capital defendant accused of an

interracial crime is entitled to have prospective jurors informed

of the race of the victim and questioned on the issue of racial

bias.” Turner v. Murray, 476 U.S. 28, 36-37 (1986).

For his part, petitioner relies on Rosales-Lopez v. United

States, 451 U.S. 182 (1981). In that case, the Supreme Court

ruled that “Aldridge[, v. United States, 283 U.S. 308 (1931)] and

Ristaino together, fairly imply that federal trial courts must

make . . . an inquiry [into racial prejudice] when requested by a

defendant accused of a violent crime and where the defendant and

the victim are members of different racial or ethnic groups.” 

451 U.S. at 192. However, as the opinion makes clear, the

inquiry described in Rosales-Lopez is to be applied “in certain

circumstances in which such an inquiry is not constitutionally

mandated,” id. at 190, and was imposed by the Court under its

“supervisory authority over the federal courts,” id. at 191. In

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other words, Rosales-Lopez announced “an appropriate

nonconstitutional standard for the federal courts,” id. at 190,

not a minimum constitutional standard state courts must meet.

Given that racial issues were not inextricably bound up with

the conduct of petitioner’s trial, see Ristaino, 424 U.S. at 597,

petitioner’s conviction does not rest on a decision that is

contrary to Ham. See Williams, 529 U.S. at 412-13. And, given

that the Supreme Court declined, in Ristaino, to adopt the

position petitioner advocates here – that is, the Supreme Court

declined to extend Ham to cover a case in which race was not an

issue at trial – petitioner’s conviction does not rest upon an

unreasonable application of Ham. See Sleeper, 510 F.3d at 38. 

Rather, it rests squarely upon the Supreme Court’s own

application of Ham to the facts of Ristaino. Moreover, as Turner

involved the sentencing of a capital defendant, and petitioner

here was not convicted of a capital offense, Turner is

inapplicable. Accordingly, petitioner is not entitled to relief

based upon his first claim.

Claim 2

After closing arguments, one of the prosecuting attorneys

told the trial judge that one of the jurors (number 15, the only

person of color on the jury) appeared to be sleeping during the

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arguments. One of petitioner’s attorneys made a similar

observation, as did a law clerk and two bailiffs, who also passed

along observations from other spectators, including a reporter. 

Based upon those reports, the trial court determined that juror

15 had not been paying attention, and appeared to be sleeping. 

Over the objection of petitioners’ counsel, who wanted the court

to voir dire juror 15, the court designated her as an alternate. 

Plaintiff characterizes the trial court’s decision not to

voir dire juror 15 as “arbitrary and an abuse of discretion,” and

further argues that “the fact that the trial court gave any

consideration, let alone any weight, as to spectators’ opinions

[concerning juror 15], compromises the petitioner’s right to a

fair and impartial trial and is an abuse of discretion.” 

Petitioner contends that the trial court violated his Fourteenth

Amendment right to a fair trial, which includes the right to an

impartial jury. See Morgan v. Illinois, 504 U.S. 719, 729

(1992). But, other than his passing reference to juror 15 as the

only person of color on his jury, petitioner does not indicate

how declining to voir dire juror 15, or designating her as an

alternate, deprived him of an impartial jury. Had juror 15 been

questioned and the reported observations confirmed, grounds for

excusal would have existed. If the reported observations had not

been confirmed, then juror 15 would still, like every other

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juror, have been subject to designation as an alternate. In

either case — excusal, or designation as an alternate (that did

not participate in returning the verdict) — petitioner would not

be, and was not, deprived of an impartial jury. Accordingly,

petitioner is not entitled to habeas corpus relief based upon his

second claim.

Claim 3

Prior to trial, petitioner moved to preclude the prosecution

from using the word “murder” to describe the act for which he was

being tried. The trial court denied the motion, and during

trial, the prosecutor referred to petitioner’s act as a “murder,”

and also elicited testimony that so characterized petitioner’s

killing of O’Neill. According to plaintiff, the prosecutor’s use

and elicitation of the word “murder” deprived him of a fair

trial, in violation of the Fourteenth Amendment, because whether

or not his killing of O’Neill was a murder was a question for

determination by the jury. 

In Olszewski v. Spencer, a case in which a habeas corpus

petitioner argued “that the prosecution made a number of

prejudicial statements in closing argument that violated [his]

due process rights,” 466 F.3d 47, 59 (1st Cir. 2006), the court

of appeals for this circuit explained:

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For this kind of due process challenge to succeed, “it

is not enough that prosecutors’ remarks were

undesirable or even universally condemned . . . .”

Darden v. Wainwright, 477 U.S. 168, 181 (1986)

(internal quotation marks omitted). Rather, as the

Supreme Court has made clear, “[t]he relevant question

is whether the prosecutor’s comments ‘so infected the

trial with unfairness as to make the resulting

conviction a denial of due process.’” Id. (quoting

Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).

Id. (parallel citations omitted).

Use of the term “murder” may have been prejudicial, but it

was not unfairly so. In Darden, the Supreme Court held that

language substantially more inflammatory than that at issue here

did not deprive the defendant of a fair trial. See 477 U.S. at

181 & n.12 (reporting prosecutor’s argument that the defendant

“shouldn’t be out of his cell unless he has a leash on him and a

prison guard at the other end of that leash”). As justification,

the Court explained, among other things, that “[t]he prosecutors’

argument did not manipulate or misstate the evidence, nor did it

implicate other specific rights of the accused such as the right

to counsel or the right to remain silent.” 477 U.S. at 181-82

(citation omitted). Moreover, unlike the word “animal,” use of

which by the prosecutor in Darden to describe the defendant was

held not to be a due process violation, the offending word in

this case was not used as a gratuitous description of the

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defendant; it was descriptive of the prosecutor’s theory of the

case. Because use of the word “murder” to characterize the

charged conduct in a trial for second-degree murder did not “so

infect[ ] the trial with unfairness as to make the resulting

conviction a denial of due process,” Olszewski, 466 F.3d at 59,

petitioner is not entitled to habeas corpus relief based on his

third claim.

Claims 4, 5, and 6

In petitioner’s three remaining claims, he argues that his

Fourteenth Amendment right to a fair trial was violated by the

trial court’s admission of evidence concerning: (1) his

appearance on a television program about fugitive criminals; (2)

his possession of a duffel bag containing a gun after he killed

O’Neill but before he took flight; and (3) the manner in which

certain wounds were inflicted on the victim. The New Hampshire

Supreme Court held each category of evidence to be admissible

under the New Hampshire Rules of Evidence, Fernandez, 152 N.H. at

241-45, and further held that even if the medical examiner’s

testimony that petitioner inflicted “torture” wounds was

inadmissible, its admission constituted harmless error “in light

of the overwhelming evidence against the defendant,” id. at 245.

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“Violation of a rule of evidence does not itself amount to a

constitutional violation, which is a necessary predicate for a

habeas claim.” Evans, 466 F.3d at 145 (citing Kater, 459 F.3d at

64). In other words:

It is commonly said that “mere” errors under state law

in the admission of evidence are not cognizable under

federal habeas review. See 1 Hertz & Liebman, Federal

Habeas Corpus Practice and Procedure § 9.1, at 411-12

(4th ed. 2001). This means that the question is not

whether the admission of the evidence was state-law

error, but whether any error rendered the trial so

fundamentally unfair that it violated the Due Process

Clause. See Petrillo v. O’Neill, 428 F.3d 41, 44 & n.2

(1st Cir. 2005); see also Fortini, 257 F.3d at 47

(“[N]ot every ad hoc mistake in applying state evidence

rules, even in a murder case, should be called a

violation of due process; otherwise every significant

state court error in excluding evidence offered by the

defendant would be a basis for undoing the conviction.”).

Kater, 459 F.3d at 64.

Petitioner’s appearance on America’s Most Wanted. At trial,

the prosecutor asked petitioner five questions to establish that,

while a fugitive, he saw a report about his crime on the

television program America’s Most Wanted, yet remained a

fugitive. In compliance with the trial court’s order on a motion

in limine, the prosecutor never elicited the name of the program,

establishing only that petitioner has seen a report about himself

“on a TV show.” The prosecutor introduced petitioner’s testimony

on this point to demonstrate consciousness of guilt, as evidenced

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by his knowing flight from authorities, and to disprove his claim

of self-defense. Petitioner argues that despite his generic

testimony about appearing “on a TV show,” the jurors must have

concluded that the TV show was America’s Most Wanted which, in

turn, unfairly prejudiced him by inviting jurors to group him

“with notorious criminals such as Capone, Dillinger, Whitey

Bulger and Osama Bin Laden, all of whom appeared on the

television program” and invited “the attachment of sinister

connotations that the F.B.I. want[ed] [petitioner], in

particular, because of his elevated status.” Given the brevity

of the reference, the fact that the name of the program was not

elicited, and the legitimate purposes for which the evidence was

admitted, see State v. Torrence, 134 N.H. 24, 27 (1991) (“It is

beyond dispute that evidence of post-offense flight is probative

on the issue of the defendant’s consciousness of guilt.”),

introduction of the fact that petitioner saw himself featured on

a television program about wanted criminals, yet remained a

fugitive, did not render his trial so fundamentally unfair that

it violated his right to due process. See Kater, 459 F.3d at 64.

Petitioner’s possession of a gun before he fled the state. 

At trial, the prosecution elicited testimony establishing that

after he killed O’Neill, petitioner was given a duffle bag with a

police scanner and a gun inside. The purpose of the evidence was

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to show petitioner’s consciousness of guilt by demonstrating the

preparations he made for taking flight. On that issue, the

evidence was probative, especially in the context of petitioner’s

statement “that ‘he wasn’t going in alive, that he was not going

back to jail [and that] [h]e would rather be dead and he would

kill himself first before he went to prison.’” Fernandez, 152

N.H. at 243. According to petitioner, that evidence was

“particularly offensive” because “there was no direct or

circumstantial evidence that [he] had the bag and gun with him at

the time he actually fled the state or at any time right up until

his arrest” and because “[t]he eyewitness who testified that she

saw [him] with a bag and gun, saw this days before he took

flight.” While plaintiff appears to argue that the disputed

evidence had relatively little probative value, he does not

explain how it was unfairly prejudicial. As with evidence of

petitioner’s appearance on America’s Most Wanted, evidence that

he possessed a gun and a police scanner before he fled the state

did not render his trial so fundamentally unfair that it violated

his right to due process. Kater, 459 F.3d at 64. This is

especially so, given that petitioner’s basis for calling the

disputed evidence “particularly offensive” — the length of time

between when he was seen with the gun and when he actually took

flight — could have been effectively addressed upon crossexamination. 

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The medical examiner’s testimony. At trial, the medical

examiner testified that three incisions on O’Neill’s left upper

arm “resemble[d] a cluster of injuries caused when a person is

being threatened by another person; an assailant makes tentative

jabs and then musters enough courage or musters that drive to

commit one final act, one or two final acts. So, it would be

threatening or torture injuries.” Fernandez, 152 N.H. at 244. 

Petitioner objects to the medical examiner’s use of the word

“torture.” In petitioner’s view, that word unfairly inflamed the

jury because it “connotes unimaginable suffering,” and the

medical examiner’s use of it impermissibly characterized his

state of mind, a matter on which the medical examiner was not

qualified to testify. Given petitioner’s claim of self-defense,

the medical examiner’s testimony was relevant. Like the other

two items of evidence at issue, its admission did not render

petitioner’s trial so fundamentally unfair that it violated his

right to due process. See Kater, 459 F.3d at 64.

Conclusion

For the reasons given, defendant’s motion for summary

judgment (document no. 11) is granted, and the petition is

dismissed. The clerk of the court shall enter judgment in

accordance with this order and close the case.

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SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

July 15, 2008

cc: Paul J. Haley, Esq.

Benjamin J. Agati, Esq.

Stephen Fuller, Esq., NHAG

John Vinson, NHDOC

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