Wolusky v. Northern NH Correctional Facility, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Tristan Wolusky
v. 	Case No. 22-cv-345-SE-AJ
Northern New Hampshire
Correctional Facility Warden
REPORT AND RECOMMENDATION
Before the court are petitioner Tristan Wolusky’s motions
entitled, “Motion/Addendum to the Petition” (Doc. No. 20) and
“Motion to Expand the Record” (Doc. No. 29), which, taken
together, seek to amend his 28 U.S.C. § 2254 petition by adding
new claims alleging violations of his Fourteenth Amendment right
to due process and Sixth Amendment right to the effective
assistance of counsel. 	The respondent has objected. 	See Doc.
No. 34.
Background
This court has allowed the following claims, identified as
Claims 1(a) and 2, to proceed in this case:
1(a). Mr. Wolusky’s first degree murder conviction violated
his Fourteenth Amendment right to due process, in that no
rational trier of fact could have found him guilty of
first-degree murder beyond a reasonable doubt.
2. 	Mr. Wolusky’s first degree murder conviction violated
his Sixth and Fourteenth Amendment right to the effective
assistance of counsel, in that his trial counsel did not
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re-call the medical examiner who performed the autopsy on
the victim, to refute the testimony used to convict Mr.
Wolusky, and to corroborate Mr. Wolusky’s claim of
innocence.
The respondent has filed a motion for summary judgment on both
claims. 	See Doc. No. 16. 	That motion remains pending.
Liberally construed, Document Nos. 20 and 29 seek leave to
amend the petition by adding the following new claims, which
this court numbers as Claims 3, 4(a)-(b), and 5:
3. 	Mr. Wolusky’s first degree murder conviction violated
his Fourteenth Amendment right to due process, as it was
based on Mr. Pinette’s trial testimony – that Mr. Wolusky
restrained the victim during the murder – which Mr. Wolusky
characterizes as false and perjured.
4. 	Mr. Wolusky’s first degree murder conviction violated
his Sixth and Fourteenth Amendment right to the effective
assistance of counsel, in that his counsel Attorney Mark
Sisti:
a. 	Failed to show at trial that Mr. Pinette’s
testimony regarding Mr. Wolusky’s restraint of the
victim was perjured; and
b. 	Failed to show, in litigating Mr. Wolusky’s
motion for a new trial, that Mr. Pinette’s trial
testimony regarding Mr. Wolusky’s restraint of the
victim was perjured.
5. 	Mr. Wolusky’s first degree murder conviction violated
his Fourteenth Amendment right to due process, as new
evidence consisting of the post-trial testimony of Mr.
Pinette and the post-trial affidavit of Mr. Tatum,
regarding Mr. Wolusky’s stabbing and restraint of the
victim, show that Mr. Wolusky is actually innocent of first
degree murder.
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Standard
A § 2254 petition may be amended as provided in the rules
applicable to civil cases. 	28 U.S.C. § 2242. 	Federal Rule of
Civil Procedure 15(a)(2) provides that leave to amend generally
should be “freely give[n] . . . when justice so requires.” 	Id.
“Reasons for denying leave include . . . futility of amendment.”
United States ex rel. Gagne v. City of Worcester, 565 F.3d 40,
48 (1st Cir. 2009). 	In assessing futility here, this court
applies the same “§ 2254 Rule 4 standard” that the court applied
in screening the original petition in this case. 	See Nov. 14,
2022 Report and Recommendation (“R&R”) (Doc. No. 5, at 1-2), R&R
approved, Dec. 13, 2022 Order (Doc. No. 8). 	That standard
includes determining whether, in light of the record before the
Court, the claims the petitioner seeks to add to this case are
cognizable, and whether the petitioner appears to have exhausted
his state court remedies with respect to each new claim. 	See
generally 28 U.S.C. § 2254(b)(1).
Discussion
I. 	Perjured Testimony (Claim 3)
The government’s knowing use of false or perjured testimony
to obtain a conviction violates the Fourteenth Amendment’s Due
Process Clause. 	Napue v. Illinois, 360 U.S. 264, 269 (1959);
Abrante v. St. Amand, 595 F.3d 11, 18 (1st Cir. 2010). 	It
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appears Mr. Wolusky exhausted his Fourteenth Amendment due
process/perjury claim, numbered here as Claim 3, in the state
courts. 	See, e.g., State v. Wolusky, No. 219-2014-cr-00384,
219-2015-cr-00238 (N.H. Super. Ct., Strafford Cty. Sept. 19,
2017) (Doc. No. 40-1), appeal declined, No. 2017-0590 (N.H. Nov.
30, 2017) (Doc. No. 40-2). 	Accordingly, the district judge
should grant the instant motions (Doc. Nos. 20, 29) to the
extent they seek to add Claim 3 to the petition. 	In an Order
issued this date, the Court directs the respondent to file a
response to Claim 3 and establishes a briefing schedule for that
claim.
II. 	Actual Innocence (Claim 5)
Construed liberally, Document Nos. 20 and 29 also seek to
amend the petition to add a claim of actual innocence (Claim 5),
based on Mr. Tatum’s post-trial affidavit and Mr. Pinette’s
post-trial testimony concerning whether Mr. Wolusky stabbed or
restrained the victim during the murder.
“Claims of actual innocence based on newly discovered
evidence have never been held to state a ground for
federal habeas relief absent an independent
constitutional violation occurring in the underlying
state criminal proceeding.” 	The Supreme Court [has]
suggested a narrow exception to that rule: “in a
capital case a truly persuasive demonstration of
‘actual innocence’ made after trial would render the
execution of a defendant unconstitutional, and warrant
federal habeas relief if there were no state avenue
open to process such a claim.”
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Hayes v. Warden, No. 00-cv-452-JD, 2001 DNH 109, 2001 WL 716129,
at *3, 2001 U.S. Dist. LEXIS 9186, at *7-*8 (D.N.H. June 6,
2001) (citations omitted) (quoting Herrera v. Collins, 506 U.S.
390, 400, 417 (1993)). 	Mr. Wolusky appears to have exhausted
Claim 5, in that the Superior Court denied his motion for a new
trial based on that new evidence, and the New Hampshire Supreme
Court declined to accept an appeal of that ruling. 	See Doc.
Nos. 40-1, 40-2.
Assuming, in the absence of briefing on the issue, that
Claim 5 might form the basis for federal habeas relief here,
this court has directed the respondent to file a response. 	The
court may reconsider its assumption after the issue has been
briefed. 	Accordingly, the district judge should grant the
motions (Doc. Nos. 20, 29) to the extent they seek to add Claim
5 to the petition. 	And the Order issued this date directs the
respondent to file a response to Claim 5 and establishes a
briefing schedule for that claim.
III. Ineffective Assistance of Counsel (Claims 4(a)-(b))
A. 	Claim 4(a) – Ineffective Trial Representation
Claim 4(a) is Mr. Wolusky’s Sixth Amendment claim that his
trial counsel provided ineffective assistance of counsel by
failing to demonstrate to the jury that Mr. Pinette had lied
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under oath in testifying that Mr. Wolusky restrained the victim
throughout the fatal assault. 	Mr. Wolusky effectively exhausted
his state remedies on Claim 4(a). 	See State v. Wolusky, Nos.
2016-0037, 2019-0589, 2021 N.H. LEXIS 141, at *4-6, 2021 WL
4197719, at *1 (N.H. Sept. 15, 2021) (Doc. No. 1-1).
Accordingly, the district judge should grant the motions (Doc.
Nos. 20, 29) to the extent they seek to add Claim 4(a) to the
petition. 	The Order issued this date directs the respondent to
file a response to Claim 4(a) and establishes a briefing
schedule for that claim.
B. 	Claim 4(b) – Ineffective Postconviction Representation
Section 2254(i) provides, in pertinent part, that “[t]he
ineffectiveness or incompetence of counsel during Federal or
State collateral post-conviction proceedings shall not be a
ground for relief in a proceeding arising under section
2254.” 	28 U.S.C. § 2254(i). 	Claim 4(b) relates to Attorney
Sisti’s representation of Mr. Wolusky in a motion for a new
trial, which occurred outside of the direct appeal of Mr.
Wolusky’s conviction, rendering it a State collateral post-
conviction proceeding. 	See Bourdon v. Goings, No. 15-CV-138-LM,
2016 U.S. Dist. LEXIS 179729, at *4-6, 2016 WL 7480266, at *2
(D.N.H. Nov. 30, 2016), R&R adopted, 2016 U.S. Dist. LEXIS
179727, 2016 WL 7480356 (D.N.H. Dec. 29, 2016); see also N.H.
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Sup. Ct. R. 3 (characterizing an appeal from a motion for a new
trial as not “mandatory” and thus outside of direct review
process). 	Cf. Wall v. Kholi, 562 U.S. 545, 553 (2011)
(“collateral review” of judgment or claim, for purposes of 28
U.S.C. § 2244(d)(2), means review of judgment or claim in
proceedings outside of direct review process). 	Accordingly, the
district judge should deny the petitioner’s motions to amend the
petition (Doc. Nos. 20, 29) in part, to the extent that they
seek to add Claim 4(b) to the petition.
Conclusion
For the foregoing reasons, the magistrate judge recommends:
(1) that the district judge grant, in part, the petitioner’s
motions to amend the petition (Doc. Nos. 20, 29), to the extent
that Claims 3, 4(a), and 5 are added to the petition; and (2)
that those motions be otherwise denied, so that Claim 4(b) is
dismissed and not added to this case.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	The
objection period may be extended upon motion. 	Failure to file
any objection 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). 	Only those issues
raised in the written objections “‘are subject to review in the
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district court,’” and any issues “‘not preserved by such
objection are precluded on appeal.’” 	Id. (citations omitted).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
September 27, 2023
cc: 	Tristan Wolusky, pro se
Elizabeth Woodcock, Esq.
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