UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Christopher Fournier

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

Opinion No. 2010 DNH 166

Warden, Northern New Hampshire

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. As construed by the magistrate judge on

preliminary review, Fournier brought three claims in support of

his petition. The Warden moved for summary judgment. Because of

the difficulties Fournier encountered in responding to the

motion, the court appointed counsel to represent him for purposes

of summary judgment. Fournier’s opposition to summary judgment

has been filed.

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

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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). 

In reviewing a petition for a writ of habeas corpus, “the

level of deference owed to a state court decision hinges on

whether the state court ever adjudicated the relevant claim on

the merits or not.” Clements v. Clarke, 592 F.3d 45, 52 (1st

Cir. 2010). If the state court did not consider the claim on the

merits, the federal court reviews the claim under the de novo

standard for purposes of § 2254. Id.

To challenge the legal basis of a state court’s decision,

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. Amand, 595 F.3d 11, 15 (1st

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Cir. 2010) (quoting § 2254(d)(1)). “[A] state-court decision is

contrary to clearly established federal law if the state court

employs a rule that contradicts an existing Supreme Court

precedent or it if reaches a different result on facts materially

indistinguishable from those of the controlling Supreme Court

precedent.” Janosky v. St. Amand, 594 F.3d 39, 47 (1st Cir.

2010). “A state-court decision constitutes an unreasonable

application of clearly established federal law if it identifies

the correct rule, but applies that rule unreasonably to the facts

of the case sub judice.” Id.

Challenges to the state court’s factual findings will

succeed only if “the state court’s decision ‘was based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding’” as shown by clear and

convincing evidence. Abrante, 595 F.3d at 15 (quoting §

2254(d)(2)); see also § 2254(e)(1). If the petitioner did not

develop the factual basis of the claim in state court, the

federal court will not hold a hearing unless the claim is based

on a new rule of constitutional law, the underlying facts could

not have been discovered previously, or the underlying facts

“would be sufficient to establish by clear and convincing

evidence that but for constitutional error, no reasonable

factfinder would have found the applicant guilty of the

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underlying offense.” § 2254(e)(2)(B); see also Forsyth v.

Spencer, 595 F.3d 81, 85 (1st Cir. 2010). 

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.

During the state criminal proceedings, Fournier was

represented by three different attorneys from the New Hampshire

Public Defender Program. Before trial, his attorneys withdrew,

citing a non-disqualifying conflict of interest. Fournier then

was represented by appointed counsel, Nicholas Brodich, who was

not affiliated with the Public Defender Program.

Fournier and Robinson testified at trial, along with other

witnesses, including police officers involved in the case, and

the surgeon who treated Robinson for a lacerated spleen. The

trial court ruled that the defense could not ask Robinson about

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another incident for the purpose of challenging her character for

truthfulness. Defense counsel did not ask for a jury instruction

on self-defense.

Following his conviction, the New Hampshire Appellate

Defender represented Fournier on appeal, raising a single issue

that the trial court should have allowed defense counsel to

cross-examine Robinson about an incident “bearing on her

character for truthfulness” under New Hampshire Rules of Evidence

403 and 608. Fournier moved, pro se, to disqualify the New

Hampshire Appellate Defender on the ground that the conflicts of

interest that caused counsel from the New Hampshire Public

Defender Program to withdraw precluded representation by the New

Hampshire Appellate Defender. The New Hampshire Supreme Court

denied the motion for disqualification. 

Fournier also filed a pro se motion for a new trial,

contending that his trial counsel was constitutionally

ineffective because he failed to ask for an instruction on selfdefense. The trial court denied his motion for a new trial and

his motion for reconsideration. Fournier moved to have his

appeal from the denial of his motion for a new trial consolidated

with his direct appeal from his criminal conviction. The New

Hampshire Supreme Court assigned a separate number to the appeal

from the denial of his motion for a new trial and declined the

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appeal. The New Hampshire Supreme Court also affirmed his

conviction on direct appeal.

Fournier, proceeding pro se, brought a habeas proceeding in

this court. On preliminary review, the magistrate judge

determined that Fournier raised the following claims:

1. The NHSC’s [New Hampshire Supreme Court] treatment of

Fournier’s appeal of the denial of his motion for a new

trial as a nonmandatory case violated his rights under the

Due Process Clause of the Fourteenth Amendment and the

Equal Protection Clause of the Fifth Amendment;

2. Fournier was denied his right to the effective assistance

of counsel, in violation of the Sixth and Fourteenth

Amendments, when his trial attorney failed to assert a selfdefense claim on his behalf;

3. Fournier’s rights to the effective assistance of

appellate counsel and to due process of law were denied, in

violation of the Sixth and Fourteenth Amendments, when the

NHSC appointed an attorney to represent him who should have

been disqualified due to a conflict of interest.

The Warden moved for summary judgment. While the motion for

summary judgment was pending, the court granted Fournier’s motion

to amend his petition to add a claim that the trial court

violated his Fifth Amendment right 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 assault. The cross-examination

claim is not addressed in the motion for summary judgment.

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Fournier, who is represented by appointed counsel, has filed his

opposition to the motion for summary judgment.

Discussion

The Warden contends that this court cannot review the New

Hampshire Supreme Court’s decision to deny Fournier’s nonmandatory appeal of the denial of his motion for a new trial,

which is based on a state court rule. The Warden also contends

that the state court’s decision on Fournier’s ineffective

assistance of counsel claim, based on the self-defense

instruction, complies with federal law, and that his claim based

on his counsel’s alleged conflict of interest is not supported by

federal law or the record in the case. In his objection,

Fournier declines to pursue his claim challenging the nonmandatory appeal, argues that his remaining claims were not

procedurally defaulted, and contends that both claims meet the 

§ 2254 standard.

A. Procedural Default

The Warden included an extensive discussion of the standard

for procedural default in his memorandum in support of summary

judgment. He did not argue, however, that any of Fournier’s

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claims were procedurally defaulted. Therefore, no basis has been

shown to consider procedural default in this case.

B. Denial of Appeal

Fournier concedes that the New Hampshire Supreme Court’s

procedure, which makes an appeal from the denial of a new trial

non-mandatory, is constitutional. He states that he will not

pursue that claim. Therefore, the Warden is entitled to summary

judgment on Fournier’s first claim.

C. Ineffective Assistance of Counsel - Self-defense

Fournier contends that his trial counsel was

constitutionally ineffective because he did not request a jury

instruction on self-defense. To succeed on a claim of

ineffective assistance of either trial or appellate counsel, a

habeas petitioner must show both that his counsel’s

representation fell below “an objective standard of

reasonableness” and that the “deficient performance prejudiced

the defense.” Pina v. Maloney, 565 F.3d 48, 54-55 (1st Cir.

2009) (citing Strickland v. Washington, 466 U.S. 668, 687-88

(1984)). “A lawyer’s performance is considered deficient only

where, given the facts known at the time, counsel’s choice was so

patently unreasonable that no competent attorney would have made

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it.” Abrante, 595 F.3d at 19 (internal quotation marks omitted). 

Prejudice requires the petitioner to show “that, but for

counsel’s unprofessional error, there is a reasonable probability

that the result of the proceeding would have been different.” 

Yeboah-Sefah v. Ficco, 556 F.3d 53, 70 (1st Cir. 2009). 

Under New Hampshire law, a defendant is justified in using

force on another person to defend himself “from what he

reasonably believes to be the imminent use of unlawful, nondeadly force by such other person, and he may use a degree of

such force which he reasonably believes to be necessary for such

purpose.” N.H. Rev. Stat. Ann. § 627:4, I. Force is not used in

self-defense if the defendant intended to cause physical harm and

provoked the other person or if the defendant was the initial

aggressor and did not withdraw from the encounter and communicate

his withdrawal to the other person. Id.

Fournier and Robinson had been a couple for several years

but had recently ended their relationship. Despite their break

up, they continued to have contact with each other. At trial,

Fournier testified that he and friends were out socializing

during the night of January 21, 2006. They joined Robinson and

other friends at a dance club where they all had drinks and

socialized. Robinson left with others before Fournier left.

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As Fournier was walking home, he called Robinson and told

her that he was walking home. Fournier then turned off his

telephone, and an hour later he found several hostile messages

from Robinson. Fournier was irritated that Robinson expected him

to be at her beck and call and that she told him not to come to

her apartment. 

Fournier testified that Robinson was aggravated and

frustrated with him and told him that she had another male friend

at the apartment. Despite Robinson’s direction not to, Fournier

decided to go to Robinson’s apartment. He testified that as he

went into the apartment, he hit his leg on a rocking chair and

that he threw the chair, breaking it. He said that he was

irritable and assertive, that he asked Robinson why she led him

to believe she had another guy at the apartment, and that they

had a heated argument. Fournier said that Robinson hit him in

the head and he slapped her. He also said that Robinson was

trying to hit him and that he was deflecting her blows and

slapping her. When Robinson came at him again, Fournier shoved

her, and she fell on the floor hard. A friend ran into the room

and got between them. Fournier said that he later told the

police that he was sorry about what had happened.

Robinson testified that she was at home watching television

with two friends when Fournier burst into her apartment, yelling

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at her. They argued. Robinson said that Fournier yelled at her

with his face next to hers so that she could feel his teeth and

when she put her hand up to protect her face, he bit her hand. 

Fournier punched her in the head, and while she was crying,

covering her head, and ducking down, he repeatedly punched her in

the ribs. She said she was in extreme pain and could not

breathe. Her friends intervened. When Robinson tried to use the

telephone to get help, Fournier grabbed it and threw it down. He

then picked up the rocking chair and held it over Robinson,

threatening to hit her while one of her friends tried to protect

her. Fournier smashed the rocking chair on the floor. Robinson

called the police.

While Fournier was in jail, he made telephone calls that

were recorded. The recordings were played at Fournier’s trial. 

In a conversation with Robinson, Fournier said that what he did

was “horribly wrong” and “awful”, that he did not intend to hurt

her that much, but that it was his “intention to smack [her] up a

little bit.” In other conversations, Fournier said that he was

sorry, that what he did was wrong, but that he was trying to hurt

Robinson “to a certain degree but not to cause bodily injury” and

that he was “[l]ooking to smack her around a little bit, and you

know, it got out of hand . . . .” 

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In response to Fournier’s claim that his trial counsel was

ineffective in failing to ask for a jury instruction on selfdefense, the state court ruled:

The defendant elected to testify at his trial. 

His testimony was both arrogant and condescending. 

While in one breath he would say that he was sorry for

what happened, he continued to blame the victim for her

jealousy. His overall testimony was to the effect that

while he was sorry she got hurt, it was not his fault

that the incident occurred. The jury had a full

opportunity to listen to his side of the story. 

Obviously they elected not to believe his testimony. 

That is the prerogative of a jury.

The Court has reviewed its notes of the trial and

finds that the defendant’s trial counsel not only was

not ineffective but rather did an excellent job in

presenting the defendant’s view of the events to the

jury. He is both experienced and well respected in his

criminal defense work. There is no basis for the

defendant’s claim of ineffective assistance of counsel

in this case.

The Warden contends that, as the trial court ruled, the evidence

at trial did not support a self-defense instruction.1 

Contrary to Fournier’s arguments, the trial evidence shows

that Fournier was the aggressor and that he intended to hurt

Robinson. The state court did not apply federal or state law

expressly in making the decision. The decision is not contrary

to the federal standard for ineffective assistance of counsel

because the record does not demonstrate that Fournier’s counsel

1The Warden cites § 627:4,I but erroneously paraphrases 

§ 627:4,II that pertains to the use of deadly force. 

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should have requested the self-defense instruction or that if the

instruction had been given, there was a reasonable probability

that the outcome would have been different.

D. Ineffective Assistance of Appellate Counsel 

Fournier contends that his appellate counsel was ineffective

because he should have been disqualified based on a conflict of

interest. Fournier’s theory is that because his three attorneys

from the New Hampshire Public Defender Program withdrew from

representing him, based on an unidentified non-disqualifying

conflict of interest, the New Hampshire Appellate Defender was

impaired by a conflict of interest. Although Fournier raised the

conflict of interest issue, the state court did not issue a

decision on the merits of that issue. Therefore, this court

reviews Fournier’s claim under the de novo standard.

Ordinarily, a habeas petitioner must show both objectively

unreasonable representation and a reasonable probability that but

for counsel’s ineffectiveness the outcome would have been

different. Strickland v. Washington, 466 U.S. 668, 694 (1984). 

When a claim for habeas relief is based on ineffective assistance

of counsel due to an actual conflict of interest, meaning that

counsel represented conflicting interests and that the conflict

adversely affected his performance, the petitioner need not prove

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prejudice under the Strickland standard. Yeboah-Sefah v. Ficco,

556 F.3d 53, 73 (1st Cir. 2009). A merely theoretical conflict,

however, is not an actual conflict, and in that case, the

petitioner must show that the “conflict actually affected the

adequacy of his representation.” Id. (internal quotation marks

omitted).

The Warden acknowledges that Fournier’s Public Defender

counsel all withdrew due to an unexplained conflict of interest. 

The Warden also acknowledges that in New Hampshire the Public

Defender Program and the Appellate Defender operate as if they

were a single firm. In support of summary judgment, the Warden

contends that Fournier cannot show that the Appellate Defender

had a conflict and cites counsel’s statement that he knew of no

such conflict. The Warden also contends that no prejudice

occurred.

Fournier argues that a factual issue exists as to whether

the Appellate Defender represented him under a conflict of

interest because no complete explanation was given as to the

conflict raised by the attorneys from the Public Defender

Program. The attenuated relationship between the lawyers in the

Public Defender Program, who were said to have a “nondisqualifying” conflict, and the Appellate Defender does not

support an inference of a conflict sufficient to raise a factual

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issue. In addition, even if a conflict existed, the conflict

raised by the Public Defender attorneys was not disqualifying,

and Fournier provides no evidence of an actual conflict. In the

absence of an actual conflict, Fournier must show prejudice

caused by the conflict, which he has not done. 

To the extent Fournier intended to raise a separate issue

that his appellate counsel was ineffective for failing to raise

ineffective assistance of trial counsel due to the lack of a

requested self-defense instruction, that claim also fails. As is

discussed above, however, that claim lacks merit. Therefore,

Fournier cannot show a reasonable probability that if appellate

counsel had raised the self-defense instruction as a basis for

ineffective assistance of trial counsel the outcome on appeal

would have been different.

Conclusion

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

judgment (document no. 17) is granted. Summary judgment is

granted in the Warden’s favor on the three claims found on

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preliminary review. The claim that was added by amendment to the

petition remains to be decided.

 SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

September 16, 2010

cc: Harry C. Batchelder, Jr., Esquire

Stephen D. Fuller, Esquire

Elizabeth C. Woodcock, Esquire

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