UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Juan Acosta

v. Civil No. 07-cv-181-PB

Warden, New Hampshire State Prison

REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 2254, Juan Acosta has filed a

petition for a writ of habeas corpus and supporting documents

challenging the constitutionality of his state court conviction

and confinement (document no. 1). See Rule 4 of the Rules

Governing Section 2254 Cases in the United States District Courts

(“Habeas Rule”) (requiring initial review to determine whether

the petition is facially valid). For the reasons discussed

below, I recommend that Grounds One and Four be dismissed. By

separate order issued simultaneously herewith, I order the

petition served on the respondent as to Grounds Two and Three. 

Background

On August 15, 2003, a Hillsborough County grand jury

returned indictments charging Acosta with three crimes relating

to the sale of heroin to informant Lisa Vallee. One indictment

Case 1:07-cv-00181-JL Document 5 Filed 08/02/07 Page 1 of 13
2

charged Acosta with the sale of heroin to Vallee. The second

indictment charged Acosta with acting as an accomplice to Tomas

Zorilla in the sale. The third indictment charged Acosta with

conspiracy to sell heroin to Vallee. Following a three-day trial

in March 2004, Acosta was convicted of sale of a controlled drug,

being an accomplice to the sale of a controlled drug, and

conspiracy to sell a controlled drug. He was sentenced to a term

of imprisonment at the New Hampshire State Prison (“NHSP”) where

he is currently incarcerated.

Acosta appealed his conviction to the New Hampshire Supreme

Court (“NHSC”) and raised the following issue relevant to this

action: whether the trial court erred in failing to require juror

unanimity with regard to the overt acts listed in the conspiracy

indictment. His conviction was affirmed on July 21, 2006.

Subsequently, Acosta filed a motion for new trial with the

New Hampshire Superior Court (Hillsborough County), alleging 

that he was denied the right to a fair trial under the federal

and state constitutions on the following bases:

(1) ineffective assistance of trial counsel when counsel (a)

failed to object to tainted testimony presented by the

state’s witness, (b) failed to preserve Acosta’s federal

claims for appeal and/or his right to appeal and (c) failed

to raise the issue of double jeopardy;

Case 1:07-cv-00181-JL Document 5 Filed 08/02/07 Page 2 of 13
3

(2) ineffective assistance of appellate counsel when counsel 

failed to preserve Acosta’s federal claims for appeal and/or

his right to appeal;

(3) prosecutorial misconduct when the prosecution knowingly

solicited testimony from a state witness, Lisa Vallee, who

allegedly violated the court’s order instructing her to

refrain from further drug use and other illegal acts; and

(4) judicial misconduct and abuse of discretion when the

trial judge (a) failed to instruct the jury that it was

required to agree unanimously on at least one of the overt

acts alleged in the conspiracy indictment in order to find

him guilty, (b) imposed a guilty verdict on a count which

the jury had not agreed to unanimously and (c) sought to

have Acosta sign documents that would negate his right to

appeal.

His motion was denied on February 20, 2007. In March 2007,

Acosta filed a discretionary appeal with the NHSC in which he

reiterated the issues raised in his motion for new trial. The

NHSC declined his appeal without opinion on May 11, 2007.

Acosta now brings the instant petition in which he raises

the following four grounds for federal habeas relief:

(1) conviction obtained in violation of the right to jury

unanimity when the trial court entered a guilty verdict on

one of Acosta’s felony counts without having first obtained

a unanimous guilty verdict;

(2) ineffective assistance of trial counsel when counsel

(a) failed to object to the admission of testimony of the

state’s witness who allegedly testified while under the

influence of illegal drugs, (b) failed to preserve this

issue for appeal and (c) failed to cite to federal case law

and preserve Acosta’s federal claims for appeal;

Case 1:07-cv-00181-JL Document 5 Filed 08/02/07 Page 3 of 13
4

(3) prosecutorial misconduct when the prosecution knowingly

solicited unreliable and/or perjured testimony from a state

witness, who allegedly was under the influence of illegal

drugs, in order to obtain his conviction; and

(4) abuse of discretion when the trial judge (a) sought to

have Acosta sign documents that would negate his right to

appeal and (b) permitted a nolle prosequi of one charge when

Acosta intended to “appeal the convictions.”

Standard of Review

In reviewing a pro se petition, this Court must construe the

pleadings liberally, see Ayala Serrano v. Gonzalez, 909 F.2d 8,

15 (1st Cir. 1990)(following Estelle v. Gamble, 429 U.S. 97, 106

(1976)), treating all well-pleaded factual allegations as true

and drawing all reasonable inferences in the litigant’s favor,

see Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996)(explaining

that all “well-pleaded factual averments,” not bald assertions,

must be accepted as true). This review ensures that pro se

pleadings are given fair and meaningful consideration. See

Eveland v. Director of CIA, 843 F.2d 46, 49 (1st Cir. 1988).

Discussion

I. Custody and Exhaustion

To be eligible for habeas relief, Acosta must show that he

is in custody and has exhausted all state court remedies (or that

he falls within a narrow category of cases in which exhaustion is

not required, such as the absence of an available or effective

Case 1:07-cv-00181-JL Document 5 Filed 08/02/07 Page 4 of 13
5

state corrective process). See 28 U.S.C. § 2254(a) & (b); see

also Duncan v. Henry, 513 U.S. 364, 365 (1995). He satisfies the

first requirement as he is currently incarcerated at the NHSP and

thus is in custody. For the reasons stated below, he also

satisfies the exhaustion requirement but only as to Grounds Two

and Three of the petition.

A petitioner’s remedies in New Hampshire are exhausted when

the State’s highest court has had an opportunity to rule on the

petitioner’s federal constitutional claims. See Lanigan v.

Maloney, 853 F.2d 40, 42 (1st Cir. 1988), cert. denied, 488 U.S.

1007 (1989) (“habeas corpus petitioner must have presented the

substance of his federal constitutional claim to the state

appellate courts so that the state had the first chance to

correct the claimed constitutional error”); see also Baldwin v.

Reese, 541 U.S. 27, 29 (2004) (citing Duncan, 513 U.S. at 365-66

(requiring petitioner to “fairly present” his claim in the

appropriate state courts, including a state supreme court with

powers of discretionary review, thereby alerting that court to

the federal nature of the claim)). “[T]he exhaustion principle

holds, in general, that a federal court will not entertain an

application for habeas relief unless the petitioner first has

fully exhausted his state remedies in respect to each and every

Case 1:07-cv-00181-JL Document 5 Filed 08/02/07 Page 5 of 13
6

claim contained within the application.” Adelson v. DiPaola, 131

F.3d 259, 261 (1st Cir. 1997). 

“The petitioner bears the heavy burden of demonstrating

satisfaction of the exhaustion requirement.” Barresi, 296 F.3d

at 51. In order to “fairly present” a claim to a state’s highest

court, a petitioner must alert the state court “to the federal

nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29

(2004)(citations omitted). As the Supreme Court has held:

A litigant wishing to raise a federal issue can easily

indicate the federal law basis for his claim in a

state-court petition or brief, for example, by citing

in conjunction with the claim the federal source of law

on which he relies or a case deciding such a claim on

federal grounds, or by simply labeling the claim

‘federal.’”

Id., 541 U.S. at 32. Similarly, the First Circuit has enumerated

several ways in which a petitioner might satisfy his obligation

to fairly present a federal constitutional issue to a state’s

highest court, including: “(1) citing a specific provision of the

Constitution; (2) presenting the substance of a federal

constitutional claim in such manner that it likely alerted the

state court to the claim’s federal nature; (3) reliance on

federal constitutional precedents; and (4) claiming a particular

right guaranteed by the Constitution.” See Goodrich v. Hall, 448

F.3d 45, 47-48 (1st Cir. 2006)(quoting Gagne v. Fair, 835 F.2d 6,

Case 1:07-cv-00181-JL Document 5 Filed 08/02/07 Page 6 of 13
7

7 (1st Cir. 1987)). The exhaustion requirement can also be

satisfied where a claim arising under state law is

“indistinguishable from one arising under federal law,” the

federal issue may be deemed to have been “fairly presented” to

the state court if the claim was originally couched in terms of

state law. Id. (quoting Nadworny v. Fair, 872 F.2d 1093, 1099

(1st Cir. 1989)).

In the instant petition, Acosta raises four grounds for 

federal habeas corpus relief. As explained more fully below,

Grounds Two and Three are identical to the claims raised in his

state court appeal and therefore appear to be exhausted. Grounds

One and Four raise issues of state law and therefore are not

cognizable for purpose of federal habeas review.

A. Exhausted Claims

1. Ineffective Assistance of Trial Counsel

Construed liberally, Ground Two alleges that Acosta was

denied the Sixth Amendment right to effective assistance of

counsel at trial. See Strickland v. Washington, 466 U.S. 668,

687-88 (1984)(holding that the Sixth Amendment guarantees

criminal defendants the right to effective assistance of counsel

at trial); Smith v. Ohio Dep’t of Rehab. and Corr., 463 F.3d 426,

433 (6th Cir. 2006) (holding “[t]here is no doubt that there is a

Case 1:07-cv-00181-JL Document 5 Filed 08/02/07 Page 7 of 13
8

constitutional right to effective assistance of counsel during a

direct appeal as of right.”). Acosta’s trial counsel allegedly

failed to object to tainted testimony presented by the state’s

witness and failed to preserve that issue for appeal. In

addition, trial counsel allegedly failed to cite to federal case

law and preserve Acosta’s federal claims for appeal. The record

reveals that Acosta presented this claim on appeal to the NHSC. 

Accordingly, I conclude that he has demonstrated exhaustion of

Ground Two for purposes of federal habeas review.

2. Prosecutorial Misconduct

Construed liberally, Ground Three alleges that Acosta was

denied the right to due process when the prosecution knowingly

solicited unreliable and/or perjured testimony from a state

witness, Lisa Vallee, in order to obtain his conviction. Acosta

alleges that Vallee was in all likelihood under the influence of

illegal drugs when she testified at his state court criminal

trial.

The Supreme Court has recognized that prosecutorial

misconduct may ‘so infect[ ] the trial with unfairness as to make

the resulting conviction a denial of due process.’” Wright v.

Vaughn, 473 F.3d 85, 92 (3d cir. 2006) (citing Donnelly v.

DeChristoforo, 416 U.S. 637, 643 (1974)). The misconduct must

Case 1:07-cv-00181-JL Document 5 Filed 08/02/07 Page 8 of 13
9

“constitute a “‘failure to observe that fundamental fairness

essential to the very concept of justice.’”. Id. To the extent

Acosta alleges that the prosecution’s solicitation of unreliable

and/or perjured testimony was so unfair as to render his

conviction a denial of due process, I conclude that he has stated

a cognizable habeas claim for purposes of preliminary review. 

Accordingly, without making a determination as to whether the

alleged prosecutorial misconduct rises to the level of

constitutional dimension, I conclude that Acosta has demonstrated

exhaustion of Ground Three.

While Acosta could have presented the above federal

constitutional claims in a more direct and precise manner, his

discretionary appeal, when read in conjunction with his earlier

filings, namely the motion for new trial, was minimally

sufficient to apprise the New Hampshire Supreme Court of the

federal constitutional dimension of his claims. I therefore find

that Grounds Two and Three have been properly exhausted in the

state courts to allow Acosta’s federal habeas corpus action to

proceed at this time.

B. Noncognizable Claims

1. Unanimous Jury Verdict

Construed liberally, Ground One of the petition alleges that

Case 1:07-cv-00181-JL Document 5 Filed 08/02/07 Page 9 of 13
10

Acosta’s conviction was obtained in violation of his right to

jury unanimity. The trial court allegedly entered a guilty

verdict on one of the felony counts without having first obtained

a unanimous guilty verdict.

“[T]he federal constitution does not mandate unanimity in

state criminal proceedings.” Casella v. Clemons, 207 F.3d 18, 20

(1st Cir. 2000). Although “[t]he Sixth Amendment requires a

unanimous jury verdict to convict in a federal criminal trial,” 

Cho v. Carter, No. C06-265-MJP, 2006 WL 3342216, at *4 (Nov. 13,

2006 W.D. Wash.)(citing Johnson v. Louisiana, 406 U.S. 356, 371

(1972)), “[t]he Fourteenth Amendment does not mandate unanimous

verdicts for convictions in criminal prosecutions in state

courts” id. (citing Johnson, 406 U.S. at 359 and Apodaca v.

Oregon, 406 U.S. 404, 410-11 (1972)). Here, Acosta alleges that

he was denied a unanimous jury verdict in his state court

criminal prosecution. Because Ground One raises only an issue of

state law and fails to identify any federal claim, I conclude

that it is not cognizable on federal habeas review and recommend

that it be dismissed.

2. Abuse of Discretion

In Ground Four of the petition, Acosta alleges that the

trial judge abused his discretion when he sought to have Acosta

Case 1:07-cv-00181-JL Document 5 Filed 08/02/07 Page 10 of 13
11

sign documents that would negate his right to appeal. The trial

court allegedly further erred when it permitted a nolle prosequi

of one charge when Acosta intended to “appeal the convictions.”

It is well-established that “[a] federal court may not issue

the writ on the basis of a perceived error of state law.” Pulley

v. Harris, 465 U.S. 37, 41 (1984). Rather, in conducting habeas

review, a federal court is limited to deciding whether a

conviction violated the Constitution, laws or treaties of the

United States. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)

(holding that “it is not the province of a federal habeas court

to reexamine state-court determinations on state-law

questions.”).

Here, Acosta has not alleged that he has been denied any

right approaching constitutional dimension. He alleges that the

trial judge “issued an order [for him] to appear before him

seeking to have [Acosta] sign documents that would negate his

appeal process.” Acosta does not allege that he was denied any

right to appeal or other procedural protections. To the

contrary, the record reveals that Acosta filed a direct appeal of

his conviction and a subsequent discretionary appeal. Because

Ground Four raises only an issue of state law and fails to

identify a federal claim, I conclude that it is not cognizable on

Case 1:07-cv-00181-JL Document 5 Filed 08/02/07 Page 11 of 13
12

federal habeas review and recommend it be dismissed.

Conclusion

For the reasons stated above, I recommend that Grounds One

and Four be dismissed. By separate order issued simultaneously

herewith, I order the petition served on the respondent as to

Grounds Two and Three.

If this Report and Recommendation is approved, the claims as

identified herein will be considered for all purposes to be the

claims raised in the petition. If the petitioner disagrees with

the identification of the claims herein, he must do so by

objection filed within ten (10) days of receipt of this Report

and Recommendation, or he must properly move to amend the

petition. 

Any objections to this Report and Recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

Law Committee v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992);

Case 1:07-cv-00181-JL Document 5 Filed 08/02/07 Page 12 of 13
13

United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986).

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: August 2, 2007

cc: Juan Acosta, pro se

Case 1:07-cv-00181-JL Document 5 Filed 08/02/07 Page 13 of 13