UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Seth Bader

v. Civil No. 02-cv-508-JD

Opinion No. 2005 DNH 103

Warden, New Hampshire

State Prison

O R D E R

Seth Bader seeks habeas corpus relief pursuant to 28 U.S.C.

§ 2254 from his conviction and sentence for the murder of his

former wife, Vicki Bader. Summary judgment has been granted in

the Warden’s favor on four of the five issues Bader raised,

leaving only the issue of whether the prosecution, knowingly or

with reckless indifference to the truth, tolerated perjury by

Sandro Stuto in his testimony against Bader in the criminal

trial. The Warden moves for summary judgment on that issue. 

Bader objects to summary judgment and moves for an evidentiary

hearing on the Stuto issue. Bader also moves to stay his case

while he litigates a new claim of ineffective assistance of

counsel in state court.

I. Bader’s Motion for a Hearing

Bader’s criminal defense counsel learned a few weeks after

Bader was convicted that during the trial, Sandro Stuto, a

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2

prosecution witness, told a fellow prison inmate known as John

Doe that his trial testimony against Bader was false. In August

of 1999, Doe signed an affidavit in which he explained the

circumstances of Stuto’s recantation. Doe stated that he had

immediately told his lawyer, Philip Cross, about Stuto’s

statements. While he was representing Doe, Cross was also

serving as guardian ad litem for Bader’s sons, Joseph, Matt, and

Sam, during Bader’s criminal trial.

Based on Doe’s story that Stuto recanted his testimony,

Bader claims that the prosecution, knowingly or with reckless

indifference to the truth, tolerated perjury by Stuto. Bader was

allowed additional discovery on that issue in this proceeding,

and his counsel deposed Philip Cross and the prosecutors in

Bader’s criminal case, John Kacavas and Joseph LaPlante. The

depositions provide no evidence that Kacavas or LaPlante knew of

a recantation by Stuto during the trial or otherwise knew that

Stuto’s testimony was false, as Bader contends. 

Bader now seeks an evidentiary hearing to question Philip

Cross about his discussions with his client, John Doe, asserting

that Cross is a state actor and that his knowledge is imputable

to the prosecution. He contends that Cross improperly invoked

attorney-client privilege during his deposition when he was asked

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Bader, who is represented by counsel, did not move to 1

compel Cross’s testimony or otherwise challenge his use of

attorney-client privilege.

3

about his conversations with Doe. He also asserts that “the 1

flagrant untruthfulness of the prosecutors about a variety of

material issues should be explored at an evidentiary hearing.” 

Motion at 10. Bader argues that the prosecutors are not credible

and that their statements during their depositions should not be

taken as true. The Warden has provided only a cursory objection

to Bader’s motion.

In cases under the Antiterrorism and Effective Death Penalty

Act (“AEDPA”), if a habeas petitioner has failed to develop the

factual basis of his claim in state court, meaning that the

record was not developed due to a lack of due diligence, he must

satisfy § 2254(e)(2) before he would be entitled to an

evidentiary hearing. Holland v. Jackson, 124 S. Ct. 2736, 2738

(2004); Williams v. Taylor, 529 U.S. 420, 431-37 (2000); Lopez v.

Massachusetts, 349 F. Supp. 2d 109, 124-25 (D. Mass. 2004). If

the facts were not developed in state court through no fault of

the petitioner, then § 2254(e)(2) does not apply. Holland, 124

S. Ct. at 2738; Lopez, 349 F. Supp. 2d at 125. AEDPA provides no

guidance as to when a hearing may or must be held when §

2254(e)(2) does not apply.

Case 1:02-cv-00508-JD Document 211 Filed 06/29/05 Page 3 of 22
Townsend was partially overruled by Keeney v. Tamayo-Reyes, 2

504 U.S. 1, 11-12 (1992), on other grounds.

The Third Circuit has held, however, that the Townsend 3

standard does not apply in post-AEDPA cases and while the

district court is permitted to hold a hearing, if it is not

precluded by § 2254(e)(2), no hearing is required. Campbell v.

Vaughn, 209 F.3d 280, 286-87 (3d Cir. 2000).

4

Pre-AEDPA, Townsend v. Sain, 372 U.S. 293, 313 (1963),2

which was codified in § 2254(d), along with Rule 8 of the Rules

Governing Habeas Corpus Cases Under Section 2254, governed the

availability of an evidentiary hearing in habeas cases. See

Lonchar v. Thomas, 517 U.S. 314, 326 (1996); Thompson v. Keohane,

516 U.S. 99, 107-09 (1995). The First Circuit stated in a postAEDPA case that Townsend “guides federal habeas courts in

determining when it is necessary to hold evidentiary hearings in

habeas cases.” Sanna v. Dipaolo, 265 F.3d 1, 9 (1st Cir. 2001).

Other courts have held that when § 2254(e)(2) does not

apply, the pre-AEDPA standard provided in Townsend and Rule 8

governs. See, e.g., Conner v. Polk, 407 F.3d 198, 208 (4th Cir. 3

2005); Isyxiengmay v. Morgan, 403 F.3d 657, 670 (9th Cir. 2005);

Guidry v. Dretke, 397 F.3d 306, 322-24 (5th Cir. 2005); Davis v.

Lambert, 388 F.3d 1052, 1061-62 (7th Cir. 2004); Lopez, 349 F.

Supp. 2d at 125; Martinez v. Spencer, 195 F. Supp. 2d 284, 291

(D. Mass. 2002). The reasoning of those courts is persuasive,

particularly in light of the First Circuit’s statement in Sanna. 

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A. § 2254(e)(2)

On appeal to the New Hampshire Supreme Court, Bader claimed

that the newly discovered evidence of Stuto’s recantation

required that he be granted a new trial, in part, because under

Napue v. Illinois, 360 U.S. 264 (1959), “federal due process is

violated if a State knowingly uses false evidence, including

false testimony, to obtain a tainted conviction, regardless that

the false testimony goes only to the credibility of the witness.” 

State v. Bader, 148 N.H. 265, 283 (2002). That court addressed

Bader’s federal claim but noted that it was assuming without

deciding that he had preserved the claim in the lower court. Id.

at 284. There is no indication in that case or the state court

record that Bader raised a claim or attempted to develop the

factual basis for a claim that the prosecution recklessly as

opposed to knowingly used false testimony at his criminal trial. 

The Warden, however, does not contend that Bader failed to

raise or develop the factual basis for either claim in state

court. Therefore, the court will assume that the restrictions of

§ 2254(e)(2) do not apply to this claim. See, e.g., Conner, 407

F.3d at 208.

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B. Townsend Standard 

A federal court may grant an evidentiary hearing if “an

applicant for a writ of habeas corpus alleges facts which, if

proved, would entitle him to relief.” Townsend, 372 U.S. at 312;

accord LePage v. Picard, 495 F.2d 26, 29 (1st Cir. 1974); Dias v.

Maloney, 156 F. Supp. 2d 104, 124 (D. Mass. 2001). A habeas

applicant is entitled to an evidentiary hearing if he

persuasively demonstrates one or more of the following factors: 

(1)the merits of the factual dispute were not resolved

in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole;

(3) the fact-finding procedure employed by the state

court was not adequate to afford a full and fair

hearing; (4) there is a substantial allegation of newly

discovered evidence; (5) the material facts were not

adequately developed at the state-court hearing; or (6)

for any reason it appears that the state trier of fact

did not afford the habeas applicant a full and fair

fact hearing. 

Townsend, 371 U.S. at 313. The court need not grant a hearing,

however, based on merely frivolous or incredible allegations. 

See id. at 317; see also Blackledge v. Allison, 431 U.S. 63, 74

(1977). Further, a hearing need not always be conducted in

person, but instead a “paper hearing” may be sufficient. Oken v.

Warden, MSP, 233 F.3d 86, 94 (1st Cir. 2000).

Bader alleges that the prosecutors either knew that Stuto’s

testimony at his trial was false or were recklessly indifferent

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Bader contends that he is entitled to an inference under 4

the missing witness rule that if Stuto had been produced for

deposition, as Bader requested, Stuto would have given testimony

that was adverse to the Warden’s position. See Bogosian v.

Woloohojian Realty Corp., 323 F.3d 55, 67 (1st Cir. 2003). 

Because Bader has not established the elements necessary for that

inference, the court declines to consider it. See GrajalesRomero v. Am. Airlines, Inc., 194 F.3d 288, 297-98 (1st Cir.

1999) (party seeking application of rule must show that witness

favorably disposed to testify for party and that witness was

peculiarly available to that party).

7

to whether it was true. In his motion for an evidentiary

hearing, Bader is not clear as to whether he is asking to call

Kacavas and LaPlante to testify at a hearing. He states only

that their deposition testimony was untruthful and that their

credibility should be considered to be doubtful. Because Bader’s

counsel has deposed Kacavas and LaPlante and those deposition

transcripts are part of the record in this case, Bader has not

shown that any further evidentiary development is necessary with

respect to those witnesses. Based on the present record, Bader’s

allegations against Kacavas and LaPlante are simply frivolous. 

4

 Bader apparently acknowledges the difficulty of showing

that the prosecutors knowingly used false testimony and instead

focuses on Cross’s knowledge of Stuto’s alleged recantation. He

contends that Cross knew that Stuto had recanted his trial

testimony during the trial and argues that his knowledge should

be imputed to the prosecutors. He asks for an evidentiary

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8

hearing to inquire, without the attorney-client privilege that

Cross invoked at his deposition, about what Cross learned from

his client, John Doe, during Bader’s trial. Even if his

allegations were true that Doe told Cross during Bader’s trial

that Stuto had recanted his testimony, however, that knowledge

cannot be imputed to the prosecutors. 

Prosecutors are charged with knowledge of information “known

to those acting on the government’s behalf.” United States v.

Bender, 304 F.3d 161, 164 (1st Cir. 2002). That group includes

other members of the prosecution team and police investigators

working for the prosecution. Id. Prosecutors are not

accountable, however, for information known to other government

agencies, such as the Division of Children, Youth, and Families,

who are not working with the prosecution. See, e.g., Lavallee v.

Coplan, 374 F.3d 41, 44 (1st Cir. 2004) (discussing traditional

Brady doctrine and acknowledging court review requirement under

Pennsylvania v. Richie, 480 U.S. 39 (1987)).

During Bader’s criminal trial, Philip Cross was the guardian

ad litem for Joseph Bader and his two brothers. Under New

Hampshire law, a guardian ad litem may be appointed by the court

to represent the interests of a minor in a court proceeding and

to act in the minor’s best interests. N.H. Rev. Stat. Ann. §

464-A:41; In re Guardianship of Henderson, 150 N.H. 349, 350

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(2003). As a guardian ad litem, Cross was acting on behalf of

Joseph Bader, and his brothers, not on behalf of the government

or the prosecution. Therefore, even if Bader were able to

establish that Cross knew of Stuto’s alleged recantation during

his criminal trial, Cross’s knowledge is not imputable to the

prosecutors. 

Because an evidentiary hearing is neither required nor

appropriate in this case, Bader’s motion is denied.

II. The Warden’s Motion for Summary Judgment

The Warden moves for summary judgment on Bader’s remaining

claim that the prosecution, knowingly or with reckless

indifference to the truth, tolerated perjury by Sandro Stuto in

his testimony against Bader at the criminal trial. The Warden

argues that the state court decision was neither an unreasonable

application of Supreme Court precedent nor based on an

unreasonable determination of the facts. See 28 U.S.C. §

2254(d). Bader contends that Philip Cross’s knowledge about

Stuto’s recantation is imputable to the prosecutors and that the

prosecutors were recklessly indifferent to the truth of Stuto’s

testimony because they did not investigate Stuto’s credibility

after he changed his story about his participation in the burial

of Vicki Bader’s body. 

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Bader does not claim a due process violation based on the 5

prosecution’s innocent use of false testimony. See, e.g.,Ortega

v. Duncan, 333 F.3d 102, 106 (2d Cir. 2003); United States v.

Tierney, 947 F.2d 854, 860 (8th Cir. 1991).

10

A. Knowing Use

As is discussed above, Philip Cross’s knowledge about

Stuto’s alleged recantation of his trial testimony is not

imputable to the prosecutors in Bader’s criminal case. The New

Hampshire Supreme Court affirmed the trial court’s finding that

there was no basis for a conclusion that the prosecution

knowingly presented false testimony in Bader’s case. Bader, 148

N.H. at 284-85. Bader offers no new evidence or even an argument

that Kacavas or LaPlante knowingly used false testimony from

Stuto. Therefore, no material factual issue exists as to the

prosecution’s knowing use of false testimony by Stuto.

B. Reckless Use

Bader also argues that the prosecutors’ reckless use of

false testimony violated his due process rights. Because the 5

state courts did not address that issue, if it was presented to

them at all, that claim is reviewed under a de novo standard. 

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

standard in § 2254(d) does not apply to this part of Bader’s

claim. See Newell v. Hanks, 335 F.3d 629, 631 (7th Cir. 2003).

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“First, it is established that a conviction obtained through

use of false evidence, known to be such by representatives of the

State, must fall under the Fourteenth Amendment.” Napue, 360

U.S. at 269. Courts have interpreted United States v. Agurs, 427

U.S. 97, 101 (1976), and Mooney v. Holohan, 294 U.S. 103, 112

(1935), to hold that the prosecution also violates due process if

it solicits testimony from a government witness that it should

have known was false or allows such testimony to stand

uncorrected if there is any reasonable likelihood that the false

testimony could have affected the judgment of the jury. See

Lambert v. Blackwell, 387 F.3d 210, 242 (3d Cir. 2004); Martin v.

Evans, 384 F.3d 848, 855 (7th Cir. 2004); Drake v. Portuondo, 321

F.3d 338, 344-45 (2d Cir. 2003); United States v. Ellis, 121 F.3d

908, 927 (4th Cir. 1997); Ouimette v. Moran, 942 F.2d 1, 11 (1st

Cir. 1991); United States v. Flaherty, 668 F.2d 566, 587 (1st

Cir. 1981); Zeigler v. Callahan, 659 F.2d 254, 264 (1st Cir.

1981). To prove such a claim, the petitioner must show that the

government witness’s testimony was false, that the prosecution

should have known of its falsity, and that the false testimony

was material under the Agurs standard. See Hayes v. Brown, 399

F.3d 972, 984 (9th Cir. 2005); Simental v. Matrisciano, 363 F.3d

607, 615 (7th Cir. 2004); Drake, 321 F.3d at 345.

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1. Falsity

The Warden contends that Stuto’s trial testimony was

truthful. Bader relies on Doe’s story that Stuto said his trial

testimony was not true and that, contrary to that testimony,

Bader had nothing to do with his ex-wife’s murder. Stuto has not

testified under oath about his alleged recantation. 

Recantations of trial testimony are viewed with skepticism

and suspicion. See Hysler v. Florida, 315 U.S. 411, 413 (1942);

United States v. Rouse, --- F.3d ---, 2005 WL 1340791 at *3 (8th

Cir. June 8, 2005); Mendiola v. Schomig, 224 F.3d 589, 593 (7th

Cir. 2000); United States v. DiPaolo, 835 F.2d 46, 49 (2d Cir.

1987). Recantations that are inconsistent with other trial

testimony, when the original testimony was consistent, are

particularly unreliable. Allen v. Woodford, 395 F.3d 979, 994

(9th Cir. 2005). “No inference of government knowledge of

perjury arises from the mere fact of a convict’s hearsay report

that a material witness recanted testimony.” United States v.

Gonzalez-Gonzalez, 258 F.3d 16, 23 (1st Cir. 2001). 

The state court found that Stuto’s alleged recantation was

not of “such a character that it would likely produce a different

result at trial” because it was inconsistent with Stuto’s and

Joseph’s trial testimony, which were credible. Bader, 148 N.H.

at 283-84. Given the source of the recantation and the state

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13

court’s determination of its credibility, Bader has not

demonstrated a material factual issue as to whether Stuto’s trial

testimony was false.

2. Should Have Known

Although courts recognize the “should have known” element of

the Agurs standard, the contours of that standard are not welldeveloped. See Drake, 321 F.3d at 345. The Eighth Circuit found

the standard was met when the government told defense counsel

that the witness had no arrest record, without actually

completing a background check, and the witness testified,

falsely, that he had never been arrested. United States v. Duke,

50 F.3d 571, 577-78 (8th Cir. 1995). 

Bader attempts to meet the Agurs standard by drawing

improbable inferences from a mistake in the police report of

Stuto’s statement about the circumstances of Vicki Bader’s

murder. The police report stated that Stuto helped to bury

Vicki’s body after the murder. Stuto pointed out before trial

that the statement was a mistake and reiterated that he did not

help to bury the body. The mistake was thoroughly examined at

the time of the trial. The prosecutors’ conduct in that regard

does not suggest reckless disregard for the truth of Stuto’s

testimony. Bader has not shown that the prosecutors were either

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Bader represents that the tort case brought against him by 6

Vicki Bader’s estate, Buzby v. Bader, 97-E138, 97-C-352

(Rockingham County Sup. Ct.), concluded in April of 2003 when the

Rockingham County Superior Court granted partial summary judgment

in favor of the estate but, at Bader’s urging, delayed a decision

on damages. In November of 2004, after a hearing, the court

awarded the estate more than four million dollars in damages in

November of 2004. He explains that the issue of Joseph’s

financial motive did not occur to him until he heard an interview

with Vicki’s mother after the damages award in which she said

that she intended to give Joseph Bader a share of the money the

estate collects. 

14

recklessly indifferent to the truth or that they should have

known that Stuto’s testimony that he did not help bury the body

was false.

Because Bader has not demonstrated a material factual

dispute as to whether the prosecutors knew that Stuto’s trial

testimony was false or were recklessly indifferent to the truth,

the Warden is entitled to summary judgment on that claim. 

III. Bader’s Motion for a Stay

Bader states that “[a] new issue has recently arisen in this

habeas proceeding” and seeks a stay to allow him to exhaust that

claim in state court. Motion ¶ 1. Bader contends that Joseph

was motivated to implicate him and to please Vicki Bader’s

family, rather than to testify truthfully, because of his

financial interest in the wrongful death action brought by

Vicki’s estate against Bader. The new issue Bader raises is 6

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whether his criminal defense counsel were constitutionally

ineffective due to their failure to impeach Joseph by asking him

about a bias or a motive to lie arising from his contingent

interest in Vicki’s estate’s suit. Once again, the Warden

provides only a cursory objection and failed to seek leave to

file a response to Bader’s reply memorandum.

The First Circuit has required district courts to stay a

federal habeas proceeding when dismissal of a mixed petition

“could jeopardize the petitioner’s ability to obtain federal

review.” Nowaczyk v. Warden, 299 F.3d 69, 79 (1st Cir. 2002).

Recently, the Supreme Court held that “[b]ecause granting a stay

effectively excuses a petitioner’s failure to present his claims

first to the state courts, stay and abeyance is only appropriate

when the district court determines there was good cause for the

petitioner’s failure to exhaust his claims first in state court.” 

Rhines v. Weber, 125 S. Ct. 1528, 1535 (2005). In addition, stay

and abeyance is not appropriate if the unexhausted claims are

plainly meritless. Id. A district court must grant a stay “if

the petitioner had good cause for his failure to exhaust, his

unexhausted claims are potentially meritorious, and there is no

indication that the petitioner engaged in intentionally dilatory

litigation tactics.” Id. If a stay is granted, it should not be

allowed to continue indefinitely. Id.

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The stay and abeyance procedure is intended to protect a

petitioner in appropriate circumstances from having his federal

claims become time barred by the one-year limitations period, 28

U.S.C. § 2244(d), while he completes the state exhaustion

process. Pace v. DiGuglielmo, 125 S. Ct. 1807, 1813 (2005). 

Because Rose v. Lundy, 455 U.S. 509 (1982), requires dismissal of

mixed habeas petitions and the one-year time limit is tolled only

during the pendency of a “properly filed application” for relief

in state court, a petitioner’s federal claims could become timebarred after a mixed petition was dismissed. Rhines, 125 S. Ct.

at 1533-34. Under Rhines, the petitioner is allowed in

appropriate circumstances to file a “protective” petition in

federal court to preserve the timeliness of both exhausted and

unexhausted claims. Pace, 125 S. Ct. at 1813.

Bader did not allege the ineffective assistance claim in his

petition, so he has not filed a “protective” or mixed petition in

this proceeding nor has he sought leave to amend to add the

claim. Instead, he proceeded on five exhausted claims, which

have all been resolved in favor of the Warden. He represents

that he has filed a habeas petition in Merrimack County Superior

Court, in which he raised the ineffective assistance of counsel

issue. Because Bader has not made a “protective” filing in this

case, the circumstances here do not fit the situation addressed

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17

in Rhines. 

In addition, the one-year limitation period provided by §

2244(d)(1) appears to have expired in December of 2003. Although

this case was filed within that limitation period, Bader’s new

claim would be untimely unless Bader is able to demonstrate that

tolling of the limitation period or relation back to the original

filing date would be appropriate here. See § 2244(d); Mayle v.

Felix, --- S. Ct. ---, 2005 WL 1469153, *6-*11 (U.S. June 23,

2005). If the claim is untimely, as it appears, a stay would not

serve the purpose articulated in Rhines. 

To the extent the court would have discretion to grant a

stay, although a stay would not be required under Rhines, the

court would decline to do so. If the lack of a protective filing

and the question of the timeliness of the claim would not

preclude the stay and abeyance procedure, Bader would still not

be entitled to a stay unless he can satisfy the Rhines

requirements.

A. Good Cause

Good cause for filing unexhausted claims in federal court

may exist because of the petitioner’s reasonable confusion about

whether his unexhausted claims are time barred in state court. 

Pace, 125 S. Ct. at 1813. That circumstance does not apply in

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this case. The meaning of “good cause” in this context has not

otherwise been developed through case law, although cause has

been addressed as part of the showing requried to excuse

procedural default. See, e.g., Evicci v. Maloney, 387 F.3d 37,

40 (1st Cir. 2004). In that context, the petitioner must show

“‘that some objective factor external to the defense impeded

counsel’s efforts to comply with the State’s procedural rule.’"

Horton v. Allen, 370 F.3d 75, 81 (1st Cir. 2004) (quoting Murray

v. Carrier, 477 U.S. 478, 488 (1986)). 

Bader contends that his former counsel are to blame for not

raising the ineffective assistance of counsel claim sooner,

although he provides no detail as to which counsel should have

raised the claim. In essence, he argues that he received

ineffective assistance of counsel in proceedings after his trial

that resulted in the failure to raise and exhaust the ineffective

assistance claim before this proceeding began. Ineffective

assistance of counsel may be used to establish cause to excuse a

state procedural default. See Gunter v. Maloney, 291 F.3d 74, 81

(1st Cir. 2002). 

If a petitioner intends to use ineffective assistance as

cause, however, that claim too must be exhausted in the state

courts. Id. Bader has not presented a claim in state court that

his subsequent counsel were constitutionally ineffective for

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19

failing to raise the issue of his trial counsel’s ineffective

assistance. Therefore, ineffective assistance by subsequent

counsel cannot constitute cause here because that claim has not

been exhausted.

Bader has not clearly presented any other basis for finding

good cause to excuse his failure to exhaust the ineffective

assistance of counsel claim. Therefore, he has not satisfied the

first requirement under Rhines for a stay.

B. Merit

A stay is also not appropriate if the new claim is plainly

meritless. Rhines, 125 S. Ct. at 1535. As is noted above, the

claim appears to be barred by the statute of limitations, §

2244(d), and would likely be meritless on that ground.

In addition, to prove his claim of ineffective assistance of

counsel, Bader must prove “first, trial counsel’s performance

[was] deficient in some way sufficiently substantial to deny him

effective representation; and second, that deficiency . . .

result[ed] in prejudice, defined as a ‘reasonable probability

that, but for counsel’s unprofessional errors, the result . . .

would have been different.’" Epsom v. Hall, 330 F.3d 49, 52 (1st

Cir. 2003) (quoting Strickland v. Washington,, 466 U.S. 668, 687

(1984)). Counsel’s performance is constitutionally deficient if

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In February of 2005, Bader filed a motion to set aside 7

judgment on the issue of whether the state had a secret deal with

Joseph Bader, contending that developments in the estate’s civil

suit against him raised a new issue about Joseph’s credibility at

his criminal trial based on his financial interest in the outcome

of the civil suit. Bader argued that the discretion of the

prosecutors not to enforce “the slayer rule” against Joseph,

which would prevent him from receiving part of Vicki’s estate,

induced Joseph to testify for the prosecution and against Bader. 

The Warden responded that the new issue about Joseph’s

credibility had not been exhausted, among other objections. 

Bader states that he and his present counsel then first realized

that he had a claim for ineffective assistance of counsel because

of counsel’s failure to challenge Joseph’s credibility at his

criminal trial based on the financial interest theory when the

20

it “fell measurably below that which might be expected from an

ordinary fallible lawyer.” Castillo v. Matesanz, 348 F.3d 1, 11

(1st Cir. 2003).

Bader argues that his former counsel were constitutionally

ineffective for failing to impeach Joseph’s credibility with the

issue of his financial interest in Vicki Bader’s estate’s civil

suit against Bader. At the same time, however, Bader contends

that he and his present counsel did not realize the credibility

issue existed until he heard in a news interview in November of

2004 that Joseph would receive a share of the estate’s damages

award. He also argues that neither he nor his counsel realized

that an ineffective claim existed until the Warden argued that

the credibility issue arising from the civil suit was not

exhausted and was not based on new evidence. Bader offers no 7

Case 1:02-cv-00508-JD Document 211 Filed 06/29/05 Page 20 of 22
Warden argued that the issue was not based on new evidence and

had been obvious since before the criminal trial began.

Bader was a lawyer and practiced law in New Hampshire until 8

his arrest in 1997.

21

basis for holding his trial counsel to a higher standard than he

and his present counsel could meet. 

8

The prejudice prong of the ineffective assistance claim is

even more difficult to satisfy. To be successful, Bader must

show that but for counsel’s failure to impeach Joseph’s

credibility by showing that he had an interest in the civil suit

there is a reasonable probability that Bader would not have been

convicted. Based on the record here, Bader cannot show

prejudice. Because Bader has not shown that he could meet either

element of his ineffective assistance of counsel claim, the claim

appears to be meritless.

Bader has not demonstrated that he is entitled to a stay of

this proceeding while he pursues the ineffective assistance claim

in state court. Therefore, his motion is denied.

Conclusion

For the foregoing reasons, the petitioner’s motion for an

evidentiary hearing (document no. 194) is denied. The

petitioner’s motion to excuse filing a memorandum of law with his

Case 1:02-cv-00508-JD Document 211 Filed 06/29/05 Page 21 of 22
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objection to the respondent’s motion for summary judgment

(document no. 202) is granted. The respondent’s motion for

summary judgment (document no. 200) is granted. The petitioner’s

motion for a stay (document no. 204) is denied. 

All of the petitioner’s claims have been resolved in favor

of the Warden in orders issued on May 28, 2003 (document no. 75),

September 27, 2004 (document no. 164), and this order. 

Therefore, the clerk of court shall enter judgment accordingly

and close the case.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

June 29, 2005

cc: B. Michael Cormier, Esquire

Neals-Erik W. Delker, Esquire

Peter E. Papps, Esquire

Case 1:02-cv-00508-JD Document 211 Filed 06/29/05 Page 22 of 22