Towle v. NH State Prison, Warden

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Robert Towle,
Plaintiff
v. 	Case No. 15-cv-117-SM-AJ
Opinion No. 2026 DNH 103
Warden, New Hampshire State Prison,
Defendant
O R D E R
Petitioner, Robert Towle, filed a habeas corpus petition
seeking relief from his present incarceration based upon
multiple state-court criminal convictions. 	See 28 U.S.C. §
2254. 	Of the 27 claims originally advanced in his petition (as
amended), five remain unresolved. 	On September 16, 2025, the
magistrate judge issued a Report and Recommendation (document
no. 224) recommending that the court deny any relief on those
remaining claims. 	Towle objects. 	So, too, does the State, but
on limited grounds: it does not disagree with the outcome
suggested by the magistrate judge, but it does object to the
manner in which she treated Towle’s claims of ineffective
assistance of stand-by counsel.
For the reasons discussed, the court agrees that the
remaining claims advanced by Towle must be denied, albeit on
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slightly different grounds than those relied upon by the
magistrate judge.
Standards of Review
I. 	The Report and Recommendation.
The court conducts a de novo review of those portions of
the magistrate judge’s report and recommendation to which a
timely objection has been filed. 	See 28 U.S.C. § 636(b)(1).
See also Warner v. McLaughlin, No. 16-CV-034-JD, 2016 DNH 154,
2016 WL 4544006, at *1 (D.N.H. Aug. 30, 2016).
II. 	The Underlying State Court Decisions on Towle’s Claims.
A. 	Deferential Review of State Court Determinations.
Since passage of the Anti-Terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) and its amendments to 28 U.S.C.
§ 2254, the power to grant federal habeas relief to a state
prisoner with respect to claims adjudicated on the merits in
state court has been substantially limited. 	A federal court may
not disturb a state conviction unless one of two conditions is
met. 	The first is when the state court’s adjudication of the
petitioner’s federal constitutional claims “resulted in a
decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.” 	28 U.S.C. § 2254(d)(2). 	A habeas petitioner
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seeking relief under that provision faces a substantial burden
insofar as “a determination of a factual issue made by a State
court shall be presumed to be correct” and the petitioner bears
the burden of “rebutting the presumption of correctness by clear
and convincing evidence.” 	28 U.S.C. § 2254(e)(1).
Alternatively, habeas relief may be granted if the state
court’s resolution of the federal constitutional issues before
it “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 	28
U.S.C. § 2254(d)(1). 	The Supreme Court explained the
distinction between decisions that are “contrary to” clearly
established federal law, and those that involve an “unreasonable
application” of that law as follows:
Under the “contrary to” clause, a federal habeas court
may grant the writ if the state court arrives at a
conclusion opposite to that reached by [the Supreme]
Court on a question of law or if the state court
decides a case differently than [the Supreme] Court
has on a set of materially indistinguishable facts.
Under the “unreasonable application” clause, a federal
habeas court may grant the writ if the state court
identifies the correct governing legal principle from
[the Supreme] Court’s decisions but unreasonably
applies that principle to the facts of the prisoner’s
case.
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Williams v. Taylor, 529 U.S. 362, 412-13 (2000). 	The Court also
noted that an “incorrect” application of federal law is not
necessarily an “unreasonable” one.
[T]he most important point is that an unreasonable
application of federal law is different from an
incorrect application of federal law . . . . Under
§ 2254(d)(1)’s “unreasonable application” clause,
then, a federal habeas court may not issue the writ
simply because that court concludes in its independent
judgment that the relevant state-court decision
applied clearly established federal law erroneously or
incorrectly. 	Rather, that application must also be
unreasonable.
Id. at 410-11 (emphasis in original). 	Finally, it probably
bears noting that a state court need not rely upon, nor need it
even cite, Supreme Court precedent in order to avoid resolving a
petitioner’s claims in a way that is “contrary to” or involves
an “unreasonable application of” clearly established federal
law. 	See Early v. Packer, 537 U.S. 3, 8 (2002) (“Avoiding these
pitfalls does not require citation of our cases - indeed, it
does not even require awareness of our cases, so long as neither
the reasoning nor the result of the state-court decision
contradicts them.”) (emphasis in original).
So, to prevail, the habeas petitioner must demonstrate that
“the state court’s ruling on the claim being presented in
federal court was so lacking in justification that there was an
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error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” 	Harrington v.
Richter, 562 U.S. 86, 103 (2011). 	In short, “Section 2254(d)
reflects the view that habeas corpus is a guard against extreme
malfunctions in the state criminal justice systems, not a
substitute for ordinary error correction through appeal.” 	Id.
at 102-03 (citation and internal punctuation omitted). 	As the
Harrington Court noted, AEDPA’s amendments to section 2254(d)
present a substantial hurdle for those seeking habeas relief and
impose upon this court a highly deferential standard of review.
If this standard is difficult to meet, that is because
it was meant to be. 	As amended by AEDPA, § 2254(d)
stops short of imposing a complete bar on federal-
court relitigation of claims already rejected in state
proceedings. 	It preserves authority to issue the writ
in cases where there is no possibility fairminded
jurists could disagree that the state court’s decision
conflicts with this Court’s precedents. 	It goes no
further.
Harrington, 562 U.S. at 102 (citation omitted).
B. 	De Novo Review of Unadjudicated Claims.
Only as to federal claims that were presented to the state
court but neither adjudicated on the merits nor dismissed by
operation of a regularly-applied state procedural rule, may this
court apply the more petitioner-friendly de novo standard of
review. 	See, e.g., Clements v. Clarke, 592 F.3d 45 52 (1st Cir.
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2010) (“In contrast, a state court decision that does not
address the federal claim on the merits falls beyond the ambit
of AEDPA. 	When presented with such unadjudicated claims, the
habeas court reviews them de novo.”) (citation omitted).
Finally, it is probably important to note that
“unadjudicated claims” are different from claims that were
resolved on the merits, but without any explanation. 	See
generally Wilson v. Sellers, 584 U.S. 122, 125 (2018) (“[W]hen
the relevant state-court decision on the merits, say, a state
supreme court decision, does not come accompanied by [any]
reasons . . . . [w]e hold that the federal court should ‘look
through’ the unexplained decision to the last related state-
court decision that does provide a relevant rationale.)
(emphasis supplied). 	See also Harrington, 562 U.S. at 98
(“[D]etermining whether a state court’s decision resulted from
an unreasonable legal or factual conclusion does not require
that there be an opinion from the state court explaining the
state court’s reasoning. 	And as this Court has observed, a
state court need not cite or even be aware of our cases under §
2254(d). 	Where a state court’s decision is unaccompanied by an
explanation, the habeas petitioner’s burden still must be met by
showing there was no reasonable basis for the state court to
deny relief. 	This is so whether or not the state court reveals
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which of the elements in a multipart claim it found
insufficient, for § 2254(d) applies when a “claim,” not a
component of one, has been adjudicated.”).
C. 	Standard Applicable to Towle’s Claims.
Here, the magistrate relied upon two decisions from the
state superior court (the “state habeas court”) that denied the
remaining claims advanced by Towle. 	See Notice of Decision
(document no. 91-2) and Notice of Decision (document no. 91-9).
Those orders related to what have been referred to as Towle’s
“Motion to Vacate IV” and his “Motion to Vacate V,” as amended.
The New Hampshire Supreme Court declined to accept Towle’s
discretionary appeals of those decision without explanation.
Consequently, the magistrate judge concluded that the last
“reasoned” state court decisions addressing the merits of
Towle’s claims were those of the state habeas court. 	But, in
those opinions, the court did not detail its reasons for denying
Towle’s claims. 	Instead, it adopted as its own reasoning that
which was put forward in the State’s objections to Towle’s
petition. 	See Documents no. 91-2 and 91-8 (both of which use
language like: “Denied. 	See State’s objection.”). 	So, the
magistrate judge examined the reasoning set forth in the State’s
objections, found that it was more than adequate (indeed, she
found it was legally correct and entirely consistent with
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Supreme Court precedent), and recommended that the court deny
relief on all of Towle’s remaining claims.
Subsequently, by order dated March 30, 2026 (document no.
243), the court called the parties’ attention to a more recent
state court decision that addressed the claims raised in Towle’s
habeas petition but which had not been filed with the court or
discussed by the parties. 	See Id. at 2 (referencing both
Towle’s “Motion to Vacate VI” and the state habeas court’s
decision denying that motion). 	See also Id. at 4-7 (attaching a
copy of the Superior Court’s “Order on Defendant’s Motion to
Vacate VI”).
In response, the State agreed that the state habeas court’s
decision resolving Towle’s “Motion to Vacate VI” was, indeed,
the last reasoned state court decision addressing the claims in
Towle’s petition. 	While Towle “objected,” he largely took issue
with certain representations made in the State’s filing; he did
not articulate any reason the court should not treat the state
habeas court decision on his Motion to Vacate VI as the last
reasoned decision on his remaining claims. 	Consequently, the
New Hampshire Superior Court’s decision resolving Towle’s
“Motion to Vacate VI” (document no. 243, at 4-7) is the last
reasoned decision resolving the merits of the claims that remain
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in Towle’s pending federal habeas court. 	This court will review
that decision applying section 2254’s deferential standard of
review discussed above.
Background
A New Hampshire jury convicted Towle on multiple charges
for his role in the long-standing sexual abuse of his minor son.
Of the eight charges on which Towle was convicted, those
relevant to his remaining habeas claims alleged the following:
08-289 	Aggravated Felonious Sexual Assault, in
violation of N.H. Rev. Stat. Ann. (“RSA”) 632-A:2
I(j)(2), and charging that between February 1, and
April 30, 2006, Towle purposely engaged in sexual
penetration (fellatio) with J.T., who was not his
spouse and who was less than 16 years old at the time
of the assault and the defendant was related to JT by
blood or affinity.
09-96 	Aggravated Felonious Sexual Assault, in
violation of RSA 632-A:2 III, and charging that during
the two year period between January 1, 2004, and
January 30, 2006, Towle knowingly engaged in a pattern
of sexual assault on JT who was not his spouse and who
was less than 16 years old, by performing fellatio on
JT on more than one occasion in a period of over 2
months and within a five year period.
09-97 	Aggravated Felonious Sexual Assault, in
violation of RSA 632-A:2 I and III, and charging that
between January 1, 2004, and January 30, 2006, Towle
knowingly engaged in a pattern of sexual assault on JT
who was not his spouse and who was less than 16 years
old, by having JT perform fellatio on him on more than
one occasion in a period of over 2 months and within a
five year period.
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See Indictments (document no. 92-1) (emphasis supplied).
What remains of Towle’s original habeas corpus petition are
five claims (which the court has labelled claims 20 through 24).
Three challenge the jury instructions provided by the trial
court and two challenge the effectiveness of Towle’s counsel:
20. 	That his Sixth and Fourteenth Amendment rights
were violated when, as to each of the two pattern
aggravated felonious sexual assault charges against
him, the trial court omitted an element of the offense
from its jury instructions.
21. 	That his Fifth, Sixth and Fourteenth Amendment
rights were violated when the trial court’s jury
instructions permitted the jury to find that Towle was
guilty, without the jurors having unanimously agreed
on the acts that satisfied a variant element of two
pattern aggravated felonious sexual assault charges,
where the pertinent variant was what differentiated
the two charges.
22. 	That his Fifth and Fourteenth Amendment rights
were violated when the trial court’s jury instructions
allowed him to be convicted of three charges
concerning fellatio, in violation of his right not to
be twice placed in jeopardy for a single offense.
23. 	Towle’s Sixth and Fourteenth Amendment rights
were violated when he was denied the effective
assistance of trial counsel, when counsel failed to
properly raise and preserve any claim related to
Towle’s challenges to the trial court’s jury
instructions in his criminal case, the substance of
which are set forth . . . in Claims 20-22.
24. 	Towle’s Sixth and Fourteenth Amendment rights
were violated when he was denied the effective
assistance of appellate counsel, when counsel failed
to properly raise, on appeal, any claim related to
Towle’s challenges to the trial court’s jury
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instructions in his criminal case, the substance of
which are set forth in Claims 20-22.
See Report and Recommendation dated Jan. 16, 2018 (document no.
100) at 4-5, approved by Order dated Feb. 15, 2018 (document no.
117).
Discussion
I. 	Towle’s Petition and the Governing Standard of Review.
As noted above, the state superior court’s decision
resolving Towle’s “Motion to Vacate VI” is the last reasoned
state court opinion addressing Towle’s remaining claims. 	It is,
then, subject to the deferential standard of review discussed
above - that is, Towle must demonstrate that the state habeas
court’s order resolving his federal constitutional claims was
“contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States.” 	28 U.S.C. § 2254(d)(1). 	Towle
does not press any factual challenges to the state habeas
court’s decision that might be subject to section 2254(d)(2).
II. 	Challenges to the Jury Instructions.
In claims 20, 21, and 22 of his petition, Towle challenges
the trial court’s instructions to the jury. 	The state habeas
court rejected those claims on two separate grounds. 	First, it
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held that Towle’s claims were procedurally waived.
Specifically, the court held that:
With respect to the defendant’s claims of error
concerning the form and content of the jury
instructions, the Court denies those claims for two
separate reasons. 	First, the Court finds that the
defendant has procedurally waived these issues for
collateral review in this proceeding. 	A motion to
vacate, like a petition for writ of habeas corpus and
a motion for new trial, is not a substitute for an
appeal. 	A procedural default may preclude later
collateral review. 	A party who has both knowledge of
the issue and an opportunity to raise it properly on
direct appeal, but fails to do so, procedurally waives
the issue for collateral review.
The defendant had actual knowledge of the issues
presented in these claims prior to his direct appeal.
He could have raised them in his direct appeal but
failed to do so and therefore waived those issues.
Because the defendant had both knowledge of the claims
of error concerning the jury instructions and an
opportunity to raise those issues properly in his
direct appeal but failed to do so, he has procedurally
waived the issues for collateral review in this
proceeding.
Order on Defendant’s Motion to Vacate VI (document no. 243), at
5-6 (citations and internal punctuation omitted).
The procedural default doctrine provides that a federal
court will not consider a claim for habeas relief that was
rejected by a state court for failure to comply with that
court’s procedural requirements, Coleman v. Thompson, 501 U.S.
722, 732 (1991), provided those procedural requirements amount
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to “a firmly established and regularly followed state practice,”
Ford v. Georgia, 498 U.S. 411, 423–24 (1991) (internal quotation
marks omitted). 	See generally Martinez v. Ryan, 566 U.S. 1, 9
(2012) (“A state court’s invocation of a procedural rule to deny
a prisoner’s claims precludes federal review of the claims if,
among other requisites, the state procedural rule is a
nonfederal ground adequate to support the judgment and the rule
is firmly established and consistently followed.”). 	The
procedural default doctrine is, then, a “corollary to the habeas
statute’s exhaustion requirement,” Dretke v. Haley, 541 U.S.
386, 392 (2004), and is based on the principle that, before a
federal court intervenes, the state’s highest court should be
given an opportunity to address a petitioner’s federal
constitutional claims. 	See, e.g., Coleman, 501 U.S. at 732 (“a
habeas petitioner who has failed to meet the State’s procedural
requirements for presenting his federal claims has deprived the
state courts of an opportunity to address those claims in the
first instance.”). 	Consequently, the Supreme Court has held:
In all cases in which a state prisoner has defaulted
his federal claims in state court pursuant to an
independent and adequate state procedural rule,
federal habeas review of the claims is barred unless
the prisoner can demonstrate cause for the default and
actual prejudice as a result of the alleged violation
of federal law, or demonstrate that failure to
consider the claims will result in a fundamental
miscarriage of justice.
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Id. at 750. 	Here, Towle has shown neither cause for his failure
to challenge the jury instructions in his direct appeal, nor has
he or can he show prejudice (since, as discussed more fully
below, those claims lack merit). 	Consequently, he cannot pursue
those claims in a federal habeas corpus petition. 	See generally
Hart v. Warden, N.H. State Prison, No. 18-CV-424-SM, 2020 WL
2128869, at *8 (D.N.H. May 5, 2020); Ayer v. Warden, New
Hampshire State Prison, No. 07-CV-304-SM, 2015 WL 1825813, at
*5–6 (D.N.H. Apr. 22, 2015).
Next the state habeas court concluded that even if Towle’s
claims related to the jury instructions had not been
procedurally defaulted, those claims lack any substantive merit.
[E]ven if the defendant has not procedurally waived
his claims concerning the challenged jury
instructions, the Court rules that those claims are
without merit. 	Having reviewed the relevant
indictments (including the time frames in which each
indictment asserts the defendant engaged in the
charged conduct) and the form and content of the jury
instructions on each indictment, the Court concludes
that the challenged jury instructions did not deprive
the defendant of jury unanimity or violate double
jeopardy principles and that they correctly instructed
the jury on these indictments and state and explain to
the jury, in clear and intelligible language, the
rules of law applicable to the charges.
Order on Defendant’s Motion to Vacate VI at 3.
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In her Report and Recommendation, the magistrate judge
discusses - in detail and correctly - the jury instructions
given by the trial court. 	That discussion need not be
repeated. 	See Report and Recommendation (document no. 224)
at 13-17. 	It is sufficient to note that the state habeas
court’s resolution of Towle’s challenges to those
instructions was not contrary to, nor did it involve an
unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States. 	See 28 U.S.C. § 2254(d)(1).1
III. Challenges to Counsel’s Representation.
Having concluded that the trial court’s instructions
to the jury were entirely proper, the state habeas court
necessarily concluded that Towle’s counsel did not provide
constitutionally deficient representation by failing to
1 	Parenthetically, the court notes that in her review of
Towle’s five remaining habeas claims, the magistrate judge
applied what was, in practice, de novo review and resolved those
claims on the merits. 	See, e.g., Report and Recommendation at
14 (“Mr. Towle’s conviction and sentence on 08-289 and the two
Pattern AFSA charges at issue did not implicate his Fifth
Amendment right not to be twice punished for the same
offense.”); id. at 16 (“Accordingly, the CCSC’s decision,
finding no merit in the MTVs as to the arguments asserted in
Claims 20 and 21, is consistent with the Supreme Court’s holding
in Blockburger). 	Nevertheless, even applying that more
“petitioner friendly” review of Towle’s claims, she (properly)
concluded that they lacked any substantive merit.
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challenge those instructions. 	See Order on Defendant’s
Motion to Vacate VI, at 3 (“Because there was no error in
the challenged jury instructions, standby counsel was not
ineffective in the assistance he rendered to the defendant
in connection with them.”). 	That was an entirely proper
(and logical) conclusion. 	Under Strickland’s two-pronged
analysis, if the trial court’s resolution of the underlying
issue was legally correct, then counsel’s failure to
challenge that resolution on appeal cannot, as a matter of
law, constitute deficient performance and, necessarily, the
defendant cannot demonstrate prejudice.
Conclusion
For the foregoing reasons, the court adopts the conclusions
and recommendation of the magistrate judge’s Report and
Recommendation (document no. 224), though not necessarily for
the reasons given. 	Treating the state habeas court’s decision
denying Towle’s “Motion to Vacate VI” (which was not before the
magistrate judge) as the last reasoned state court decision on
his claims and applying the governing deferential standard of
review to that opinion, it is plain that the state habeas
court’s decision was not contrary to, nor did it involve an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States. 	See,
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e.g., Harrington, 562 U.S. at 102 (“As amended by AEDPA, §
2254(d) stops short of imposing a complete bar on federal-court
relitigation of claims already rejected in state proceedings.
It preserves authority to issue the writ in cases where there is
no possibility fairminded jurists could disagree that the state
court’s decision conflicts with this Court’s precedents. 	It
goes no further.” (emphasis supplied). 	Towle’s claims fall
significantly short of that mark.
Towle’s petition for habeas corpus, as amended, (document
no. 1) is, therefore, necessarily denied. 	His Motion to File a
Reply (document no. 249) is granted and the court has considered
that filing. 	All other pending motions (to include documents
no. 244 (motion to stay), 246 (motion for Timeframe on Ruling),
and 256 (motion for a more definitive response)) are denied as
moot. 	The Clerk of Court shall enter judgment in accordance
with this order and close the case.
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
August 4, 2026
cc: 	Robert V. Towle, pro se
Counsel of Record
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