Thorpe v. NH State Prison for Men, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Preston Thorpe
v. Civil No. 19-cv-1197-JD
Michelle Edmark, Warden
New Hampshire State Prison
REPORT AND RECOMMENDATION
Petitioner, Preston Thorpe, through counsel, has filed a
petition for a writ of habeas corpus (Doc. No. 1) under 28
U.S.C. § 2254, challenging his state conviction and sentence.
Before the court is petitioner’s response (Doc. No. 3) to this
court’s June 10, 2020 Order (“June 10 Order”) (Doc. No. 2)
directing the petitioner to show cause why his petition should
not be dismissed in light of Stone v. Powell, 428 U.S. 465, 494
(1976) (“where the State has provided an opportunity for full
and fair litigation of a Fourth Amendment claim, a state
prisoner may not be granted federal habeas corpus relief on the
ground that evidence obtained in an unconstitutional search or
seizure was introduced at his trial”).
The only grounds upon which petitioner seeks relief in his
§ 2254 petition are Fourth Amendment claims challenging the
trial court’s denial of his pretrial motion to suppress certain
evidence. The New Hampshire Supreme Court affirmed his
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conviction, concluding that the “emergency aid” exception to the
warrant requirement permitted the warrantless entry into Mr.
Thorpe’s apartment, and that the police did not
unconstitutionally expand the scope of their search. See State
v. Thorpe, No. 2017-0624, 2018 N.H. LEXIS 230, at *5-6, 2018 WL
6217475, at *2 (N.H. Nov. 29, 2018)
Stone stands for the proposition that federal courts cannot
generally review Fourth Amendment claims in a § 2254 petition
unless the State has failed to provide a “full and fair”
opportunity to litigate that claim, or there has been “an
irretrievable breakdown in the process provided by the state.”
Sanna v. Dipaolo, 265 F.3d 1, 8-10 (1st Cir. 2001) (citing
Stone, 428 U.S. at 494).
[A] full and fair opportunity to litigate means that
the state has made available to defendants a set of
procedures suitably crafted to test for possible
Fourth Amendment violations. So long as a state
prisoner has had an opportunity to litigate his Fourth
Amendment claims by means of such a set of procedures,
a federal habeas court lacks the authority, under
Stone, to second-guess the accuracy of the state
court’s resolution of those claims.
Sanna, 265 F.3d at 9. The exception regarding “an irretrievable
breakdown in the process provided by the state” is to be applied
narrowly and sparingly, and comes into play in cases involving
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an “egregious and unconscionable collapse in the machinery of
adjudication.” Id. at 9-10.
Here, petitioner does not challenge the general efficacy of
New Hampshire procedures nor their effectiveness at testing
possible Fourth Amendment violations. Instead, he challenges
the outcome of his motion to suppress in state court, as well as
the facts found by the New Hampshire Supreme Court in its review
of the motion to suppress on appeal. Petitioner argues that the
New Hampshire Supreme Court’s findings were inconsistent with
the weight of evidence or the record as a whole. But a showing
that this court could reach another conclusion applying either
de novo review or the deferential standard of review under 28
U.S.C. 2254(d), given the record, does not bring petitioner’s
Fourth Amendment claims within an exception to the rule in
Stone. The federal court must presume the general integrity of
state court proceedings. See Palmigiano v. Houle, 618 F.2d 877,
882 (1st Cir. 1980).
Petitioner has not challenged the efficacy of New
Hampshire’s process of testing alleged Fourth Amendment
violations; nor has he stated facts that could show that the
process broke down here. Insofar as the petition asserts no
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other claims of federal constitutional violations, the entire
petition is properly dismissed at this time.
Certificate of Appealability
Rule 11(a) of the § 2254 Rules requires the court denying a
§ 2254 petition to “issue or deny a certificate of appealability
[“COA”] when it enters a final order adverse to the party.” Id.
A COA may issue “only if the [petitioner] has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-84
(2000).
When the district court denies a habeas petition on
procedural grounds without reaching the prisoner’s
underlying constitutional claim, a COA should issue
when the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional
right and that jurists of reason would find it
debatable whether the district court was correct in
its procedural ruling.
Slack, 529 U.S. at 484. Here, the district judge should decline
to issue a COA, as petitioner has not made a substantial showing
of the denial of a constitutional right, and reasonable jurists
would not debate that Stone bars further review of petitioner’s
claims.
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Conclusion
For the foregoing reasons, the district judge should
dismiss the petition in its entirety and decline to issue a
certificate of appealability. Any objections to this Report and
Recommendation must be filed within fourteen days of receipt of
this notice. See Fed. R. Civ. P. 72(b)(2); LR 7.2(d). The
fourteen-day period may be extended upon motion. Failure to
file objections within the specified time waives the right to
appeal the district court’s order. See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
December 14, 2020
cc: Charles J. Keefe, Esq.
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