Etienne v. NH State Prison, Warden

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Dickens Etienne,
Petitioner
v. 	Case No. 18-cv-1156-SM
Opinion No. 2020 DNH 184
Michelle Edmark, Warden,
New Hampshire State Prison,
Respondent
O R D E R
On January 28, 2004, Dickens Etienne shot an acquaintance,
Larry Lemieux, in the back of the head. 	Lemieux died instantly.
Etienne was tried and convicted of first-degree murder and his
conviction was affirmed on appeal to the New Hampshire Supreme
Court. 	He brings this petition seeking habeas corpus relief
from that conviction. 	See 28 U.S.C. § 2254. 	Respondent moves
for summary judgment on both claims advanced in Etienne’s
petition, asserting that, as a matter of law, he is not entitled
to the relief he seeks. 	Etienne objects.
For the reasons discussed, respondent’s motion for summary
judgment is granted and Etienne’s amended petition for habeas
corpus relief is denied.
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Standard of Review
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
seeking relief under that provision faces a substantial hurdle
since any “determination of a factual issue made by a State
court shall be presumed to be correct” and the petitioner must
“rebut[] 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
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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.
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
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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 under section 2254(d)(1), 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 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 significant
barrier 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
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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).
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.
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). 1
With those principles in mind, the court turns to Etienne’s
petition and the State’s motion for summary judgment.
1 	It is, perhaps, 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, 138 S.Ct. 1188, 1192 (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 Ylst v. Nunnemaker, 501 U.S. 797 (1991).
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Background
Etienne’s habeas corpus petition advances two claims.
First, Etienne asserts that his trial counsel was ineffective
for failing to recognize that he suffered from a mental health
condition and for neglecting to have him undergo a psychiatric
evaluation – something he says likely would have revealed that,
at the time of his trial in 2004, he suffered from a severe
mental illness. 	Armed with that information, says Etienne,
trial counsel could have better explained to the jury his
inculpatory post-shooting behavior and/or negotiated a favorable
plea agreement with the State. 	In his second claim, Etienne
asserts that the State withheld from him material impeachment
evidence concerning a trial witness – conduct he claims violated
his constitutionally protected right to due process.
The factual backdrop to Etienne’s murder conviction is set
forth in detail in the New Hampshire Supreme Court’s decision
affirming that conviction. 	See State v. Etienne, 163 N.H. 57
(2011). 	In brief, the pertinent facts are as follows. 	On
January 28 of 2004, Etienne and several other men had gathered
outside an apartment in Manchester, New Hampshire. 	Two of those
men – Lemieux and Pierre – began arguing. 	Both men (as well as
others, including Etienne) were armed. 	According to the New
Hampshire Supreme Court:
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Lemieux [the victim] arrived . . . and walked onto the
porch with his hands in his pockets. 	He approached
Pierre so they stood face to face, about six inches
apart. . . . the defendant [Etienne] and [others]
stood in the area behind Lemieux. 	Pierre’s gun was in
his waistband, and [Etienne’s] gun was plainly visible
in his hand.
Witness accounts differed as to what was said next.
* * *
The witnesses all agreed that the defendant [Etienne]
and Pierre spoke to each other in Haitian Creole, and
then the defendant stepped behind Lemieux, raised his
gun, and shot Lemieux in the head behind his right
ear. 	Lemieux’s hands were inside his jacket when he
was shot. 	He died immediately.
After the shooting, the group dispersed. 	The
defendant, Pierre and Rivera drove toward
Massachusetts. 	At some point, while they were still
in New Hampshire, Pierre got out of the car. 	The
defendant and Rivera continued to Rivera’s brother’s
home in Brighton, Massachusetts, where the defendant
showered and changed his clothes. 	He and Rivera then
visited the defendant’s sister’s home, where he gave
her a bag of his soiled clothing and spoke with her
about being his alibi for the shooting. 	He telephoned
[another friend] from a Massachusetts number and told
her he was at his sister’s home in Boston, and that he
had heard about what had happened at the apartment.
The defendant left his sister’s home at 3 p.m., after
approximately twenty minutes there, and drove to the
Brighton Reservoir where he threw his gun, magazine
and bullets onto the ice.
State v. Etienne, 163 N.H. 57, 67 (2011). 	Etienne was indicted
for the murder of Lemieux. 	Despite his earlier denials of any
involvement in the shooting, at trial, Etienne claimed to have
acted in self-defense, as well as in the defense of another.
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Following an eight-day jury trial, Etienne was convicted of
first-degree murder. 	He was sentenced to life in prison,
without the possibility of parole.
Etienne appealed to the New Hampshire Supreme Court. 	Among
the issues he raised was a claim that the State failed to
disclose impeachment evidence relating to one of the trial
witnesses against him: Jose Gomez. 	That impeachment evidence
was a letter from the New Hampshire Attorney General’s Office,
recommending that Gomez receive a suspended sentence on state
drug charges unrelated to Etienne’s murder case. 	The State’s
failure to disclose that information, said Etienne, violated his
constitutionally protected right to due process.
The New Hampshire Supreme Court found that the undisclosed
evidence was, indeed, favorable to Etienne. 	Nevertheless, the
court concluded, “beyond a reasonable doubt, that the evidence
would not have altered the outcome because even if the
impeachment had caused the jury to disregard Gomez’s testimony
altogether, there was overwhelming additional evidence of
premeditation before the jury.” 	State v. Etienne, 163 N.H. at
92. 	Accordingly, the court held that Etienne’s rights under
neither the State nor Federal Constitution were violated.
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In December of 2012, Etienne filed a motion for new trial
in state court (construed as a petition for habeas relief). 	In
it, he advanced several challenges to his conviction.
Approximately two and one-half years later, during the summer of
2015, Etienne was, for the first time, diagnosed with
schizophrenia, paranoid type, by a staff psychiatrist at the New
Hampshire State Prison. 	Although Etienne appears to have been
diagnosed with depression following a suicide attempt in his
teens, the 2015 diagnosis – nearly 11 years after his first-
degree murder trial - was the first time a medical provider
reported that he suffered from more serious mental illness. 	In
the wake of that diagnosis, Etienne amended his state habeas
petition to include claims asserting that trial counsel was
ineffective for failing to investigate his mental health
condition and neglecting to obtain a mental health evaluation.
Subsequently, in the summer of 2017, the state habeas court
held a three-day evidentiary hearing on Etienne’s petition for a
new trial. 	Several witnesses appeared and testified, including
Etienne’s two trial attorneys. 	The court also heard testimony
from two mental health experts: Dr. Albert Drukteinis, for the
petitioner, and Dr. Allison Fife, for the State. 	Additionally,
Etienne submitted to the court the written “Psychological
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Evaluation of Dickens Etienne” prepared by Dr. Drukteinis
(document no. 3-12).
In a detailed and well-reason order, the state habeas court
denied Etienne’s petition. 	State v. Etienne, No. 216-2004-CR-
1717 (N.H. Sup. Ct. Jan. 23, 2018) (document no. 3-5). 	The New
Hampshire Supreme Court declined to accept Etienne’s appeal.
Etienne then petitioned this court for relief under 28 U.S.C. §
2254.
Discussion
In his Amended Petition for Writ of Habeas Corpus (document
no. 28), Etienne advances two claims:
Claim 1 	That he was denied effective assistance of
counsel when trial counsel failed to
investigate his mental health records and
consult with a mental health expert,
depriving him of non-inculpatory reason for
his post-incident behavior and/or depriving
him of an opportunity for a favorable plea
bargain.
Claim 2 	That his federal constitutional rights were
violated when the State withheld favorable
impeachment evidence regarding one of the
State’s key trial witnesses.
Id. at 1 (emphasis supplied). 	As noted above, the New Hampshire
Supreme Court considered, and rejected, Claim 2 on direct
appeal. 	Six years later, the state habeas court considered, and
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rejected, Claim 1 in Etienne’s post-conviction proceedings.
Those two state court decisions are the focus of Etienne’s
pending petition.
Parenthetically, the court notes that earlier in these
proceedings, the State moved to dismiss Etienne’s petition on
grounds that it was not filed in a timely manner. 	The court
denied that motion, without prejudice, concluding that while the
arguments raised by the State likely had merit, resolving them
(and, more particularly, Etienne’s claimed entitlement to
equitable tolling based upon mental illness) would require
significant time, resources, and effort. 	Etienne v. Edmark,
2020 WL 211100, 2020 DNH 008 (D.N.H. Jan. 14, 2020) (document
no. 19) at 7-8 (“[I]t is unlikely that the court can resolve the
respondent’s motion to dismiss solely on the record presently
before the court. 	Rather, an evidentiary hearing would probably
be required, as would the testimony of psychiatric experts (who
would, of course, first have to examine Etienne and review more
than twenty years of his medical records)”). 	Consequently, the
court concluded that, “a more efficient approach to resolving
Etienne’s claims would be to bypass the timeliness issue for now
in favor of exploring the merits of his claims, returning to the
timeliness issue if there appears to be any substantive merit to
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his petition.” 	Id. at 8. 	The court now turns to the merits of
those claims.
I. 	Claim One – Ineffective Assistance of Counsel.
In the first of his two claims, Etienne focuses on his
schizophrenia diagnosis – made more than ten years after the
murder trial – and says his attorneys were ineffective for
having neglected to investigate his mental health records and
for failing to “discover” his mental illness. 	He adds that if
counsel had obtained such information, they could have used it:
(a) to explain to the jury his inculpatory post-shooting conduct
(i.e., flight from the scene; disposal of the murder weapon;
lies to the police; and a series of letters written from jail
that undermined his claims of self-defense); and/or (b) to
negotiate a favorable plea agreement with the State.
To prevail on a claim of ineffective assistance of counsel,
a habeas petitioner must show that his or her counsel provided
constitutionally deficient representation and that the
petitioner suffered actual prejudice as a result. 	See
Strickland v. Washington, 466 U.S. 668, 687 (1984). 	As to each
of those essential elements, the petitioner bears a substantial
burden of proof:
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To establish deficient performance, a person
challenging a conviction must show that counsel’s
representation fell below an objective standard of
reasonableness. 	A court considering a claim of
ineffective assistance must apply a strong presumption
that counsel’s representation was within the wide
range of reasonable professional assistance. 	The
challenger’s burden is to show that counsel made
errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.
With respect to prejudice, a challenger must
demonstrate a reasonable probability that, but for
counsel’s unprofessional errors, the result of the
proceeding would have been different. 	A reasonable
probability is a probability sufficient to undermine
confidence in the outcome. 	It is not enough to show
that the errors had some conceivable effect on the
outcome of the proceeding. 	Counsel’s errors must be
so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.
Harrington, 131 S.Ct. at 787–88 (citations and internal
punctuation omitted) (emphasis supplied). 	Given the foregoing
requirements, “surmounting Strickland’s high bar is never an
easy task.” 	Padilla v. Kentucky, 130 S.Ct. 1473, 1485 (2010).
Etienne has failed to do so.
Etienne does not seem to take serious issue with the habeas
court’s application of governing constitutional law (indeed,
there is no suggestion in the record that the habeas court
misunderstood or misapplied that law). 	Instead, Etienne
challenges the court’s factual findings that:
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(a) “reasonably competent trial counsel would not have
pursued the evidence [of Etienne’s mental health]
based on the totality of what was known and the viable
defenses [available to them],” State Habeas Decision
at 24; and
(b) even if trial counsel could have obtained a
“useful” diagnosis of Etienne’s mental health
condition, “the court does not find there is a
reasonable probability that the verdict would have
been different.” 	Id. at 28.
In short, the state habeas court concluded that Etienne’s
attorneys did not provide constitutionally deficient
representation and, even if their conduct had fallen short of
constitutional minimums, Etienne suffered no prejudice as a
result. 	Etienne has failed to demonstrate that either of those
presumptively-correct findings amounts to an “unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.” 	28 U.S.C. § 2254(d)(2). 	See also
28 U.S.C. § 2254(e)(1). 	Rather, those conclusions are amply
supported by the record.
A. 	Counsel was not Ineffective.
By way of background, the court notes the following about
Etienne’s mental health. 	In October of 1995, he was admitted to
Faulkner Hospital following an overdose of pills and detergents
– an apparent suicide attempt when he was 18 years old. 	As the
habeas court noted, this was his first and only hospitalization.
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The are no records of any prior mental health history. 	Hospital
records noted the death of Etienne’s father earlier that year,
as well as the accidental death of one of his close friends just
a week earlier. 	Treatment focused on his depression, which
seemed related to his personal losses and stress. 	He reported
no psychotic symptoms and did not appear psychotic. 	He reported
no prior psychiatric admission or outpatient treatment. 	Etienne
did, however, reveal to his caregivers a significant criminal
history, which included, among other things, charges for
attempted murder when he was just 13 for his alleged role in a
Haitian gang-related shooting. 	The state habeas court noted
those incriminating revelations when explaining why, if
disclosed, such medical records might prove more harmful than
helpful to Etienne.
Two years later, in 1997, Etienne was charged with
attempted murder and first-degree assault arising from a
shooting in Nashua, New Hampshire. 	He was tried four times
before eventually securing an acquittal in November of 2001.
The court recounts those multiple criminal trials for this
reason: throughout the numerous and lengthy judicial proceedings
associated with his four criminal trials (and at least one
appeal), Etienne’s mental status was never questioned, either in
the context of his competency to stand trial or as a potential
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mitigating factor for his alleged conduct. 	Similarly, in his
criminal trial on witness tampering charges (which followed his
2004 murder trial), no questions concerning his mental health or
competency to stand trial were raised. 	If Etienne was, as
suggested by Dr. Drukteinis, suffering from some sort of
“prodromal schizophrenia” when he shot Larry Lemieux in 2004, he
concealed its symptoms well from his family, friends, and most
importantly, his lawyers.
After conducting the evidentiary hearing, the state habeas
court rejected Etienne’s claim that his trial attorneys provided
constitutionally deficient representation whey they failed to
recognize his claimed mental illness in 2004. 	The court
concluded that trial counsel were not actually aware of any
potential mental health issues. 	Moreover, because evidence of
any potential mental illness at the time was so diffuse and
well-concealed, it could not be said that counsel should have
recognized that he might be mentally ill. 	In support of those
conclusions, the habeas court noted, among other things, that:
1. 	[Etienne] was diagnosed for the first time with
schizophrenia by Paul Brown, MD. 	On August 4,
2015, Etienne informed Dr. Brown that he began
hearing voices in 2013. 	Suffice it to say that
his presentation in 2015 was markedly different
from what his lawyers described in 2004. 	State
Habeas Decision at 10.
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2. 	“The information known to the lawyers that might
have prompted the collection of records was not
suggestive of a mental illness that would have
resulted in a change of strategy or a supplement
to the defense. 	There is no credible argument
that the shooting was a product of mental illness
or that Etienne’s mental illness impacted his
mental state at the time of the shooting, nor was
mitigation an issue.” 	Id. at 23.
3. 	“Landry [trial counsel] had a long-term
relationship with Etienne during which he gleaned
no evidence of mental illness. 	Mirhashem [co-
counsel] shared this view, and indicated that he
was particularly sensitive to raising issues if
there was anything to note. 	The investigator,
who enjoyed the best relationship with Etienne
and worked very closely with him due the
restriction on Etienne keeping his discovery,
brought no concern to the lawyers about Etienne’s
ability to work on his case or his behavior.”
Id. at 23.
4. 	Trial counsel interviewed approximately fifty
people who knew Etienne, “only one of whom even
remotely suggested some paranoia, fairly weak
evidence at that.” 	Id. at 24.
5. 	Etienne’s hospitalization for a suicide attempt
when he was a minor occurred in the context of
his having been depressed about the death of his
father. 	He did not present with symptoms of
mental illness. 	Additionally, that incident took
place many years before the events at issue in
the murder trial. 	Id. at 25.
6. 	“Of the many lawyers representing Etienne, not
one has had him evaluated or noted a mental
health issue, including the lawyer who
represented him in the witness tampering case in
2011, the very conduct [i.e., threatening letters
from jail while awaiting his murder trial]
Etienne now alleges would have been explained by
his mental illness.” 	Id. at 27 (emphasis
supplied).
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7. 	“Although Etienne’s [habeas] lawyer culled out
every record reference to support a claim that
mental illness was the cause of the petitioner’s
behavior, given the amount of time the records
span, from 1995 to the end of 2004, there is
little to warrant concern about delusions or
paranoia having influenced his behavior pending
trial. 	The majority of the information points to
depression, as was diagnosed in 1995, and there
was no evidence that he was experiencing auditory
hallucinations in 2004. 	The hints of
schizophrenia were buried far too deep for the
lawyers to have seen them during this period.”
Id. at 27 (emphasis supplied).
Finally, the court credited the expert testimony of Dr.
Fife over that of Dr. Drukteinis. 	The court acknowledged Dr.
Drukteinis’s opinion that “Etienne is currently suffering from
schizophrenia as diagnosed by [the prison doctor] and likely was
suffering from at least prodromal schizophrenia at the time of
the 2004 trial.” 	Id. at 19. 	Nevertheless, the court noted that
“Dr. Fife did not share Dr. Drukteinis’ view.” 	Id. at 20.
Dr. Fife recognized that schizophrenia is progressive
and could wax and wane, but she saw no evidence that a
psychotic disorder was active at the time of the 2004
trial. 	She indicated that it can be difficult to know
if a person is concealing symptoms when they do not
self-report. 	However, from her current interviews
with Etienne and the records she reviewed from the
period around 2004, Dr. Fife stated that she could not
conclude that mental health symptoms were present at
the time of trial that would have interfered with
Etienne’s ability to work with his attorneys. 	She
noted that the records lack evidence of a
contemporaneous mental illness that would explain or
attempt to explain the actions Etienne took around
2004.
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Id. at 21 (emphasis supplied). 	The court found Dr. Fife’s
testimony and opinions more persuasive than those of Dr.
Drukteinis and, as it was entitled to do, relied more heavily
upon her testimony.
The state habeas court properly recognized that, “the
question is not whether the defense could have found some
evidence to support an argument that the petitioner was mentally
ill, but rather whether, given what was before the lawyers, a
reasonably competent lawyer would have pursued the evidence
based on the totality of what was known and the viable
defenses.” 	Id. at 24. 	The court answered that question in the
negative. 	That conclusion, which is amply supported by the
record and consistent with Supreme Court precedent, is fatal to
Etienne’s ineffective assistance claim. 	See, e.g., Knight v.
Spencer, 447 F.3d 6, 15 (1st Cir. 2006) (“It is only where,
given the facts known at the time, counsel’s choice was so
patently unreasonable that no competent attorney would have made
it, that the ineffective assistance prong is satisfied.”)
(emphasis supplied; citation and internal punctuation omitted).
For that reason, Claim 1 of his petition fails.
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B. 	Etienne was not Prejudiced.
Despite concluding that Etienne’s attorneys did not provide
constitutionally deficient representation, the state habeas
court went on to consider Etienne’s claim that he was prejudiced
by his lawyers’ failure to investigate his mental condition:
that is, his assertion that the result of his murder trial would
have been different because, armed with such information, he
could have either negotiated a plea agreement with the State or
explained to the jury why he engaged in such incriminating post-
shooting behavior.
The state habeas court sustainably rejected that claim as
well. 	Among other things, the court found:
1. 	“The court accepts the lawyers’ testimony that
Etienne never authorized his lawyers to negotiate
a plea bargain or expressed a desire to accept
one given the likely result of release from
prison when Etienne was in his fifties, a
daunting thought when there was a reasonable
chance of freedom. 	This is not a circumstance
where the lawyers advised their client to plead
guilty and the advice was refused or the client
was persisting on going to trial in the face of
insurmountable odds. 	Rather, the lawyers’ and
Etienne’s evaluations of the case were in line
and logically based on what was known when the
decision was made. 	The fact that Etienne was
convicted does not render the assessment of the
strengths and weaknesses of the government’s case
incompetent.” 	Id. at 33.
2. 	“Etienne also alleges that counsel was
ineffective for failing to develop background
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information with which to negotiate a plea
bargain. 	However, as discussed above, Etienne
never expressed an interest in a plea bargain and
never authorized his lawyers to seek one. 	He was
not a neophyte to the criminal process. 	The
lawyers evaluated the strength of the State’s
case with him. 	Their efforts were rightly put
towards trial preparation, and the court takes no
issue with the attorneys’ view of this case being
a triable one. 	There was ample evidence
supportive of the defense, which would have
resulted in Etienne’s freedom had the jury
believed it. 	In fact, after sitting through the
whole trial, as did the jury, Etienne still
rejected a plea to manslaughter [which the State
offered after closing arguments].” 	Id. at 35
(emphasis supplied).
3. 	“Had the petitioner been evaluated or mental
health concerns been shared, the State would have
been privy to all the information contained in
the records, good and bad, including the
petitioner’s early gang involvement, the
attempted murder [when he was just 13], the
theft, and his prior probationary period. 	The
negative information contained in the records
would likely have outweighed any sympathy that
could have been engendered by identifying Etienne
as mentally ill. 	The court is hard pressed to
see how that information would have resulted in
more favorable treatment by the State or an
acceptable plea bargain.” 	Id.
As an aside, it is unclear how Etienne believes evidence of
his (potential) mental illness in 2004 might have prompted a
more favorable offer than the one actually made by the State.
Despite having the benefit of knowing all the evidence of his
guilt that was presented to the jury, Etienne still rejected the
State’s offer of a plea to manslaughter.
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The court need not belabor the point. 	The factual
conclusions reached by the habeas court are amply supported by
the record. 	And, more importantly, Etienne has not shown, by
clear and convincing evidence, that the state habeas court’s
adjudication of his 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). 	See generally Yeboah-
Sefah v. Ficco, 556 F.3d 53, 66 (1st Cir. 2009) (“AEDPA sets out
a separate and exacting standard applicable to review of a state
court’s factual findings. 	The state court’s factual findings
are ‘presumed to be correct’ unless the petitioner rebuts this
‘presumption of correctness’ with ‘clear and convincing
evidence.’”) (quoting 28 U.S.C. § 2254(e)(1)).
II. 	Claim Two – Exculpatory Evidence.
On direct appeal of his murder conviction, Etienne claimed
“that he was denied access to exculpatory information by the
State in violation of his due process rights under the United
States and New Hampshire Constitution.” 	Etienne, 163 N.H. at
88. 	As noted above, the undisclosed evidence was a letter from
the New Hampshire Attorney General’s Office, recommending that
Jose Gomez (a witness called by the State in Etienne’s murder
trial) receive a suspended sentence on state drug charges. 	Id.
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at 87. 	It probably bears noting that the proffer letter was not
related in any way to Etienne’s murder trial or Gomez’s expected
testimony at that trial; it pertained solely to drug trafficking
charges against Gomez and his efforts to reduce his sentence by
sharing with the Manchester Police Department his “knowledge of
illegal drug activities in the Manchester area.” 	See Id.
The New Hampshire Supreme Court resolved that claim against
Etienne, concluding that although he had shown that the withheld
evidence would have been favorable to his defense (to impeach
Gomez’s credibility), such evidence would not have altered the
outcome of the trial:
We [like the trial court] conclude that the
undisclosed evidence would not have altered defense
counsel’s strategy, which centered on impeachment of
Gomez. 	We also find, beyond a reasonable doubt, that
the evidence would not have altered the outcome
because even if the impeachment had caused the jury to
disregard Gomez’s testimony altogether, there was
overwhelming additional evidence of premeditation
before the jury.
Id. at 92. 	Etienne disagrees and asserts that the New Hampshire
Supreme Court deprived him of his constitutional rights when it
“found that the new impeachment evidence regarding Gomez was
cumulative of other evidence and the State could have proved
premeditation without the testimony of Gomez.” 	Amended Petition
at 20-21. 	Specifically, he argues that:
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The state court’s determination of the facts on this
issue is unreasonable because it relies on trial
counsels’ attempts to establish that Gomez got a
“deal,” while failing to consider the fact that these
attempts failed. 	The decision is also an unreasonable
application of the facts, as it fails to consider the
resulting prejudice from the State’s vouching for
Gomez’s credibility in their closing argument.
Contrary to the state court finding, Gomez’s testimony
was unparalleled in supporting the State’s argument
that Mr. Etienne committed first degree murder. 	Gomez
claimed that prior to the shooting, Mr. Etienne said,
“it’s a wrap” and that he was going to “merk” Lemieux
and that these terms meant that Mr. Etienne was going
to kill Lemieux.
Petitioner’s Memorandum (document no. 36) at 15.
The court disagrees. 	As the New Hampshire Supreme Court
noted, counsel’s efforts to impeach Gomez did not “fail.” 	They
were, in fact, quite successful. 	The withheld evidence would
have merely bolstered their impeachment of him. 	Moreover, the
New Hampshire Supreme Court did not misapprehend the potential
value of the undisclosed impeachment evidence. 	Indeed, it
recognized that:
The defense strategy included an argument that Gomez
was not a credible witness because he had, in all
likelihood, received a “deal” on his drug charges.
The defense questioned Gomez extensively about his
belief that he had received no such deal, established
the actual sentence Gomez received, and attacked the
sentence by implying that it was inadequate in light
of Gomez’s criminal history and the charges he had
been facing. 	The defense also argued during its
closing that Gomez’s testimony was not credible
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because he had received an insufficient sentence for
his drug charges and had become part of the
prosecution’s “team.”
The proffer letter, if disclosed, would have provided
evidence that Gomez had attempted to cooperate with
the State on the unrelated drug charges, and would
have supported the defendant’s assertion that Gomez
had allegedly joined the prosecution’s team. 	It would
not have established that Gomez received any
consideration for his testimony at the defendant’s
trial.
Etienne, 163 N.H. at 92. 	Overall, the court concluded that
counsel’s multi-pronged impeachment of Gomez was quite effective
and evidence of his efforts to cooperate in an unrelated case of
his own was only one aspect of that assault on his credibility:
The defendant challenged Gomez’s credibility in
several additional respects. 	Gomez testified while
wearing his New Hampshire State Prison clothing and
fielded questions from both parties about the sentence
he was serving at the time. 	He discussed his actions
with regard to possessing a firearm and hiding
Lemieux’s gun, the charges leading to his
imprisonment, as well as the lies he had apparently
told to police on prior occasions. 	Gomez’s
cooperation with the State to receive consideration in
an unrelated case, therefore, was only one of the
areas in which the defense attempted to discredit him,
and the remaining avenues of impeachment were
unaffected by the undisclosed information.
Id. at 92-93 (emphasis supplied). 	And, finally, the court found
that, “Gomez’s testimony at trial, while providing some evidence
of premeditation, was not the primary, exclusive, or crucial
evidence on that element. . . [M]any witnesses testified to the
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events leading up to the homicide, to the circumstances of the
homicide, and to the defendant’s actions thereafter.” 	Id. at
93.
Those factual findings are amply supported by the record.
While Etienne plainly disagrees with some, if not all, of them,
he has not rebutted the presumption of correctness afforded to
those findings by clear and convincing evidence. 	Necessarily,
then, Claim 2 of his petition also fails.
Conclusion
Etienne’s habeas corpus petition is, in essence, an effort
to relitigate factual findings that were resolved against him by
both the New Hampshire Supreme Court and the state habeas court.
Having reviewed the record, as well as the arguments advanced by
counsel, the court necessarily concludes that he has not
overcome the presumption of correctness afforded to those
findings. 	See 28 U.S.C. §§ 2254(d)(2) and (e)(1). 	Nor has he
demonstrated that either 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).
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For the foregoing reasons, as well as those set forth in
the respondent’s legal memoranda, the respondent’s Motion for
Summary Judgment (document no. 24) and its Supplemental Motion
for Summary Judgment (document no. 33) are granted.
Respondent’s Motion to Dismiss Claim Two of the Petition
(document no. 31) is denied as moot. 	Etienne’s Amended Petition
for a Writ of Habeas Corpus (document no. 28) is denied.
The Clerk of Court shall enter judgment in accordance with
this order close the case.
Because Etienne has not “made a substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), the
court declines to issue a certificate of appealability.
Petitioner may, however, seek such a certificate from the court
of appeals under Federal Rule of Appellate Procedure 22(b). 	See
Rule 11, Federal Rules Governing Section 2254 Cases (2010); 28
U.S.C. § 2253(c).
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
October 21, 2020
cc: 	Donna J. Brown, Esq.
Elizabeth C. Woodcock, Esq.
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