Beers v. State of New Hampshire

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Timothy Beers
v. Civil No. 15-cv-517-PB
Warden, New Hampshire
State Prison
REPORT AND RECOMMENDATION
Timothy Beers, proceeding pro se, has filed a petition for
a writ of habeas corpus under 28 U.S.C. § 2254. In support,
Beers contends that his conviction on four counts of pattern
aggravated felonious sexual assault was obtained in violation of
his rights under the Fifth, Sixth, and Fourteenth Amendments.
The respondent and Beers each move for summary judgment, and the
motions are before the undersigned magistrate judge for a report
and recommendation.
Standard of Review
The Federal Rules of Civil Procedure, including Rule 56
governing summary judgment, apply in habeas corpus cases but
only to the extent that the practice is not specified under the
habeas statute. Fed. R. Civ. P. 81(a)(4). In the context of
petitions under § 2254, the statute provides the rules of
practice. See, e.g., Torres v. Thaler, 395 F. App’x 101, 106
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n.17 (5th Cir. 2010); Reid v. Warden, 2017 WL 706187, at *1
(D.N.H. Feb. 22, 2017).
A petition for a writ of habeas corpus under § 2254 may be
granted “only on the ground that [the petitioner] is in custody
in violation of the Constitution or law or treaties of the
United States.” § 2254(a). A petition, however, cannot be
granted unless the petitioner exhausted the available state
court remedies. § 2254(b). In addition, “a federal court may
not review federal claims that were procedurally defaulted in
state court – that is, claims that the state court denied based
on an adequate and independent state procedural rule” unless the
petitioner shows cause for the default and actual prejudice from
the alleged constitutional violation. Davila v. Davis, 137 S.
Ct. 2058, 2064-65 (2017).
For purposes of claims that were adjudicated on the merits
in state court, the petition will not be granted unless the
decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States” or the decision “was
based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.”
§ 2254(d). If the federal claim was raised but was not
adjudicated on the merits in state court, the federal court
reviews the claim under the de novo standard. Jackson v.
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Marshall, 864 F.3d 1 9 (1st Cir. 2017); Kirwan v. Spencer, 631
F.3d 582, 586 (1st Cir. 2011). “When a federal claim has been
presented to a state court and the state court has denied
relief, it may be presumed that the state court adjudicated the
claim on the merits in the absence of any indication or state-
law procedural principles to the contrary.” Harrington v.
Richter, 562 U.S. 86, 99 (2011).
Background1
Beers does not dispute the underlying facts in the state
proceedings that pertain to his claims. The claims raised in
the petition involve questions of law. No hearing was held in
this case.
Beers’s son, P.B., reported to the Hudson (New Hampshire)
Police Department in February of 2011 that he had been sexually
assaulted by his father when he was a child. P.B. was twenty-
one years old when he made the report.
1 The background information is taken from the transcripts
of Beers’s criminal trial, the decision of the New Hampshire
Supreme Court on Beers’s direct appeal, State v. Beers, No.
2013-0840, 2015 WL 11181926 (N.H. Feb. 23, 2015), and the
decision of the Merrimack County Superior Court on Beers’s
petition for a writ of habeas corpus, Beers v. Zenk, 217-2016-
CV-00386 (N.H. Sup. Ct. Sept. 21, 2017). The transcripts and
decisions are included in that part of the record that is filed
conventionally. Doc. no. 31.
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Beers was charged with four counts of pattern aggravated
felonious sexual assault in violation of RSA 632-A:2, III.2 He
was convicted following a jury trial on all four counts.3 P.B.,
his mother (Beers’s former wife), and P.B.’s twin sister
(Beers’s daughter) testified during the trial.
During the trial, P.B. testified that his father sexually
assaulted him, beginning when he was eight or nine years old.
The assaults occurred once or twice a month until he was twelve
or thirteen. He provided specific and explicit details about
the circumstances and activities involved in the assaults. P.B.
said that he did not report the assaults because he was afraid
of his father while the assaults were occurring, that he took
the abuse so that his sister would not be abused, and that later
he was ashamed of himself.4
2 “A person is guilty of aggravated felonious sexual assault
when such person engages in a pattern of sexual assault against
another person, not the actor's legal spouse, who is less than
16 years of age. The mental state applicable to the underlying
acts of sexual assault need not be shown with respect to the
element of engaging in a pattern of sexual assault.” RSA 632-
A:2, III.
3 Beers was tried twice. The first trial, held in March of
2013, ended in a hung jury. The second trial, held on July 23
and 24, 2013, resulted in the convictions.
4 He also said that Beers would wrestle with him when angry
and would hurt him, which resulted in him crying and going to
his room.
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P.B. testified that he had a difficult time in school while
he was growing up. He had a learning disability and was picked
on by other kids because of his difficulties in school. His
mother testified that he had a hard time in school because of
his learning disability.
P.B.’s mother also testified that Beers was hard on P.B.
His sister said that Beers picked on P.B. His sister also
testified that when she was eight or nine she opened the door to
P.B’s room and saw Beers and P.B., who were naked, lying on
P.B.’s bed watching what she believed was pornography on the
television. P.B. testified that his sister opened the door to
his room during one of the incidents of sexual assault.
P.B. testified that he started drinking in college and
drank more after he left college. He said that drinking made
him feel better about himself and that some of the drinking was
because of his father. He started smoking marijuana to help him
not drink as much.
In defense counsel’s opening statement, she said that the
case against Beers was “about a baseless and offensive lie.”
Trans. at 80. She further said: “I don’t have a crystal ball.
I can’t see inside [P.B.’s] head. I don’t know why he’s lying.”
Id. at 80-81.
In closing argument, defense counsel stated that although
the family lived in a small mobile home in a small community,
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“[n]obody saw anything, nobody suspected anything, because
nothing happened.” Id. at 239. She continued:
This trial was short, and this trial was short because
the State’s case was weak. . . . Don’t you think
that if the State had some proof, some witness,
somebody to come forward and corroborate the story,
they would have produced that person for you? . . .
Not one single person came in and said yes, over the
years I noticed something, [P.B.] seemed troubled, his
grades were falling, there was some signal that
something wasn’t right at home, but there was nothing,
and there was nothing because Tim Beers is innocent.
Id. at 239-40.
Defense counsel then addressed the defense theory that P.B.
was lying when he accused his father of sexual assault. Counsel
stated:
Maybe you can think of a time in your life when
somebody told a lie or spread a rumor about you or
somebody you cared about. I want you to take a second
to think about that if that ever happened to you. You
might have wondered in the circumstance why they were
telling that lie. You wanted to know what’s
motivating that person to do this to me, but you can’t
figure it out, you can’t get in their head, you just
don’t know, and unfortunately, we can’t provide you
with any answer for why [P.B.] is lying, we don’t
know.
Id. at 40. Counsel argued that P.B.’s testimony was implausible
and unbelievable, and then stated:
When you’re back in the jury room, you’re going
to wonder to yourselves why would he lie about
something so serious, something so big, and you might
have guesses and you might not be able to come up with
the answer, and as I told you before, I really wish I
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could give you an answer, and I just don’t know. All
I can do is point to the facts.
Id. at 244.
The prosecutor responded to defense counsel’s statements in
his closing argument. He first addressed the defense theory
that the state lacked any evidence to show that someone
suspected sexual assault or noticed signs that something was not
right in P.B.’s home. The prosecutor argued as follows:
[Defense counsel] is half-right in some things
she said when she began her closing statement to you
folks. You see the simplest answer that’s in front of
you when you look for signs.
There’s a lesson that they teach young doctors
when they’re going through medical school, there’s a
saying, and they tell young doctors, they say “When
you [hear] hoof beats, think horses not zebras.” So
when someone comes into your office and they have
sniffles and they have a fever, they want [] you to
think—well, they want you to diagnose this person with
a common cold, they don’t want you to right off the
bat say well, it must be malaria because that’s not
the simplest explanation.
So when [P.B.’s mother] saw all of these signs in
her son, signs that—like his struggles in school, any
troubling grades, any problems he was having with
other children in the area, she looked for the
simplest answer, which was clearly [P.B’s] learning
disability. There were signs probably throughout
[P.B.’s life] that weren’t easily recognizable as
sexual assault, and that no one would jump to the
conclusion that my child’s being sexual[ly] assaulted,
especially someone who’s in [P.B.’s] position, who had
the difficulties that he had, that other children
don’t have to go through, other families don’t have to
deal with.
There were signs. There were signs when he got
to college and started drinking and abusing marijuana.
There were signs that you look to and you think, well,
any kid who turns 17-18, who’s off on their own for
the first time, that’s something that they do.
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They didn’t know that all of those things that
they saw in [P.B.] were signs of something that was
much deeper than just the everyday troubles he was
going through. They didn’t know that those were signs
of what his father had done to him years before.
Id. at 245-46.
At that point, defense counsel objected to the prosecutor’s
argument that certain symptoms were signs of sexual abuse
because no expert had testified in support of that theory. The
prosecutor argued that because defense counsel said there were
no signs of abuse, he could argue that there were signs. The
court agreed with the prosecutor that the cited symptoms could
be signs of a troubled person.
When the prosecutor resumed his closing argument, he
addressed the issue of P.B’s credibility. The prosecutor stated
that the case would come down to whether the jury believed P.B.
or not. He reminded the jury that the judge had instructed that
a victim’s testimony need not be corroborated to support a
conviction. The prosecutor then said he would give the jury
three reasons to believe P.B. and to convict Beers. The first
reason was the detail that P.B. provided about the assaults.
The second reason addressed defense counsel’s statements
that the defense could not give an answer about P.B.’s motive to
lie. The prosecutor argued that the jury should believe P.B.
and stated the following:
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Defense made a big point in opening and closing,
I’m saying a couple times, but we can’t give you an
answer as to why would [he] be lying about this,
which, when assessing [P.B.’s] credibility, I think is
a[n] awfully damning statement.
They’ve had multiple opportunities to figure out
why [P.B.] would be lying about this. Now they had a
deposition where they had a chance to ask him
questions themselves to figure out why [P.B.] would be
lying about this. They’ve had a previous hearing
under oath, they had his testimony . . .
Id. at 253. Defense counsel objected that the prosecutor was
shifting the burden of proof to the defendant. The court ruled
that the prosecutor could talk about the prior interviews of
P.B. but that he was “running close to the edge in saying that
they have an obligation to find motive.” Id. at 254. Defense
counsel then asked for a reinstruction on the burden of proof.
The prosecutor finished his closing, arguing that P.B. had
no motive to lie and that the nature of the crime, P.B.’s age,
his environment, and his personality kept him from disclosing
the abuse before he did. After the prosecutor finished his
closing, the judge reinstructed the jury on the burden of proof.
The jury found Beers guilty on all charges. He was sentenced to
ten to thirty years in prison.
Beers appealed his conviction to the New Hampshire Supreme
Court. The questions presented on appeal were:
1. Did the trial court err in allowing the State to
argue facts not in evidence during its closing argument.
2. Did the trial court err in not clearly sustaining
Beers’ objection during closing that the State was
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impermissibly shifting the burden and by failing to provide
an immediate curative instruction.
The New Hampshire Supreme Court interpreted the first question
to raise an issue of prosecutorial misconduct during closing
argument and concluded that no misconduct occurred. With
respect to the second question, the court noted that Beers
relied on the standard for whether a prosecutor’s prejudicial
comments required a mistrial, although counsel had not requested
a mistrial. The court concluded that the prosecutor’s argument
was not an adverse comment on Beer’s decision not to present
evidence. The conviction was affirmed.
Beers, who was represented by counsel, then filed a
petition for a writ of habeas corpus in state court. He argued
that he was entitled to a new trial because of the prosecutor’s
improper closing argument, raising three issues:
A. Trial counsel was ineffective in failing to object
to improper arguments made by the prosecution during
closing arguments that conflated the credibility of the
victim with the burden of proof thereby misstating the
burden of proof;
B. The trial court erred by overruling Petitioner’s
objection to the State’s closing argument whereby the State
impermissibly shifted the burden of proof to the Petitioner
to establish a motive for the victim to lie;
(C) The trial court erred when it failed to sustain
the defense’s objection after the prosecution asked the
jury to draw inferences from facts not in evidence during
their closing arguments.
Doc. 30-2, at *1. The superior court concluded that the
prosecutor’s statements about not needing corroboration for
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P.B.’s testimony to find Beers guilty, which Beers interpreted
as a misstatement of the burden of proof, was not improper. For
that reason, Beers’s counsel was not constitutionally
ineffective in failing to object. The court did not address the
second and third issues on the merits because they had been
decided by the supreme court on direct appeal.
The habeas petition was denied. Beers filed a notice of
discretionary appeal, which was declined.
Proceeding pro se, Beers filed a petition under § 2254 in
this court while his state habeas proceeding was pending. The
federal case was stayed until the state case was concluded.
After the New Hampshire Supreme Court declined discretionary
review of the superior court’s decision on Beers’s state habeas
petition, Beers filed an amended petition in this court.
The undersigned magistrate judge issued a report and
recommendation, finding that the amended petition included both
exhausted and unexhausted claims. I recommended that the
district judge deny Beers’s motion to continue the stay to allow
him to exhaust the unexhausted claims and that Beers be given
two options to proceed. He could either move to amend his
petition to omit the unexhausted claims and proceed with the
exhausted claims or the entire petition would be dismissed. The
report and recommendation was approved; Beers moved to dismiss
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the unexhausted claims; and he was permitted to proceed with his
exhausted claims.
The claims in support of Beers’s petition are as follows:
2. Beers’s conviction was obtained in violation of his
Fourteenth Amendment right to due process in that:
a. The prosecutor engaged in misconduct, by
arguing that Beers did not take the opportunity to
provide the jury with a motive for why that witness
would have lied; and
b. The trial court improperly overruled Beers’s
trial counsel’s objection, and failed to declare a
mistrial sua sponte, in response to the prosecutor’s
closing argument, in which the prosecutor argued that
Beers did not take the opportunity to provide the jury
with a motive for why the witness would have lied.
4. Beers’s conviction was obtained in violation of his
Fifth Amendment privilege against self-incrimination
as the prosecutor’s closing argument indirectly
commented on Beers’s failure to testify, in arguing
that Beers did not take the opportunity to provide the
jury with a motive for why a witness lied.
5. Beers’s conviction was obtained in violation of his
Sixth Amendment right to the effective assistance of
counsel, in that trial counsel failed to object to the
prosecutor’s closing argument, to the extent it argued
that since the victim’s testimony didn’t need to be
corroborated, the jury could convict Beers if the jury
believed the victim’s testimony beyond a reasonable
doubt, which had the effect of misstating the burden
of proof.
6. Beers’s conviction was obtained in violation of
his Fourteenth Amendment right to due process as the
trial judge failed to sustain defense counsel’s
objection that the prosecutor’s closing argument
improperly asked the jury to draw inferences from
facts not in evidence.
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Discussion
The respondent moves for summary judgment. In support, he
argues that Beers’s claims are procedurally defaulted and,
alternatively, fail on the merits. In response, Beers filed a
joint cross motion for summary judgment and objection and a
separate motion for summary judgment.5
I. Beers’s Motion for Summary Judgment (Doc. No. 41)
Beers moves for summary judgment in his favor on the ground
that “the State failed to respond.” He also asserts that he is
entitled to summary judgment because the court has not appointed
counsel to represent him in this proceeding and because the
court and the respondent have delayed his case. Beers is
mistaken.
As the docket in this case demonstrates, Beers’s case was
delayed while he completed his state habeas proceeding. The
court has explained why counsel has not been appointed to
represent Beers in this case. The respondent has not failed to
respond when a response was required. The motion is denied.
5 Beers’s combined cross motion for summary judgment and
objection (doc. no. 40) is construed as his objection to the
respondent’s motion for summary judgment. See LR 7.1(a)(1).
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II. Respondent’s Motion for Summary Judgment (Doc. No. 32)
The respondent argues that Beers did not exhaust the claims
that he brings in support of his habeas petition and that the
claims are procedurally defaulted. The respondent also
challenges the claims on the merits.
A. Failure to Exhaust and Procedural Default
As is noted above, a federal prisoner can pursue claims
under § 2254 only if he has exhausted the relief available in
state court. § 2254(b). To exhaust federal claims in state
court, “the petitioner must present the federal claim fairly and
recognizably to the state courts, meaning that he must show that
he tendered his federal claim in such a way as to make it
probable that a reasonable jurist would have been alerted to the
existence of the federal question.” Clements v. Maloney, 485
F.3d 158, 162 (1st Cir. 2007) (internal quotation marks
omitted). A failure to exhaust federal claims may result in
procedural default of those claims. Coleman v. Thompson, 501
U.S. 722, 735 n.1 (1991).
To satisfy the exhaustion requirement, a petitioner must
have presented the factual and legal bases for his federal claim
to the state court. Coningford v. Rhode Island, 640 F.3d 478,
482 (1st Cir. 2011). He may satisfy that requirement by “(1)
citing a provision of the federal constitution; (2) presenting a
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federal constitutional claim in a manner that fairly alerts the
state court to the federal nature of the claim; (3) citing
federal constitutional precedents; or (4) claiming violation of
a right specifically protected in the federal constitution.”
Clements, 485 F.3d at 162. “[I]n some situations, citations to
state court decisions which rely on federal law or articulation
of a state claim that is, as a practical matter,
indistinguishable from one arising under federal law, may
suffice to satisfy the exhaustion requirement. Id. (internal
quotation marks omitted). Further, if a state law standard is
at least as protective as the federal constitutional standard,
then the federal claim may be regarded as having been raised and
adjudicated on the merits. Scott v. Gelb, 810 F.3d 94, 99 (1st
Cir. 2016).
The respondent contends that Beers failed to exhaust the
claims because he did not use precisely the same language in
state court as he uses here. The respondent also contends that
Beers did not raise federal claims. As a result, the respondent
argues, those claims were not fairly presented to the state
courts.
Claim 2, which challenges the prosecutor’s closing argument
in response to the defense’s closing argument about P.B.’s
motive to lie, was presented on direct appeal and in the state
habeas petition. The New Hampshire Supreme Court recognized the
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claim as raising prosecutorial misconduct that required a
mistrial and analyzed it under that standard. While the supreme
court relied on New Hampshire cases, the federal nature of the
claim had been raised in the briefing.
Claim 4 raises the Fifth Amendment privilege against self-
incrimination that bars a prosecutor from commenting on a
defendant’s failure to testify. The supreme court also
recognized that theory, stating that “‘[a] defendant’s decision
not to testify or present evidence in his own defense can
provide no basis for an adverse comment by the prosecutor.’”
Beers 2015 WL 11181926, at *3 (quoting State v. Fowler, 132 N.H.
540, 545 (1989)). In Fowler, the supreme court addressed the
right against self-incrimination under the Fifth and Fourteenth
Amendments. Id. at 545-46.
Claim 5, alleging ineffective assistance of counsel for
failure to object to the prosecutor’s remarks during closing
that affected the burden of proof, was raised in the state
habeas proceeding. The Merrimack Superior Court, which decided
the habeas petition, relied on State v. Thompson, 161 N.H. 507,
528 (2011), for the ineffective assistance of counsel standard.
In Thompson, the New Hampshire Supreme Court applied the federal
Sixth Amendment standard provided in Strickland v. Washington,
466 U.S. 668, 688 (1984).
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Claim 6 raises the issue of whether the prosecutor argued
inferences from facts not in evidence in his closing argument,
which Beers raised on direct appeal and in the habeas
proceeding. Beers relied on the New Hampshire standard for
determining whether an improper argument requires a mistrial,
which in turn incorporates the due process federal standard.
The state also cited federal law in its brief.
In addition, the federal nature of the claims was apparent
to the state habeas court. The superior court concluded as
follows:
The petitioner argues that ‘the sum total of the
prosecution’s arguments during summation, including
the 1) arguments that misstated the burden of proof[;]
2) the arguments that amounted to improper burden
shifting[;] and 3) the arguments that improperly
introduced facts not in evidence, violated the
[p]etitioner’s constitutional right to a fair trial
and right to due process under Part 1, Art. 15 of the
New Hampshire Constitution and the 6th and 14th
Amendments to the U.S. Constitution.” (Mot. Supp.
Pet’r’s Request Pet. Writ of Habeas Corpus, ¶ 39.) As
the Court has determined that the prosecution did not
make any improper arguments or misstatements in its
closing statement, the Court cannot conclude that the
petitioner’s constitutional rights have been violated.
Doc. no. 30-6, at *15.
Therefore, the respondent has not shown a failure to
exhaust or procedural default that bars review under § 2254.
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B. Claims on the Merits
Because the state courts adjudicated Beers’s claims on the
merits, they are subject to the deferential standard of review
under § 2254(d). Dorisca v. Marchilli, 941 F.3d 12, 17 1st Cir.
2019). Under that standard, a petitioner is not entitled to
relief unless the state court decision was contrary to or an
unreasonable application of federal law as determined by the
Supreme Court. Id. (citing § 2254(d)). A state court decision
is contrary to federal law if it either is based on application
of a legal standard that directly contradicts Supreme Court
precedent or reaches a different outcome than the Supreme Court
on “materially indistinguishable facts.” Bebo v. Medeiros, 906
F.3d 129, 134 (1st Cir. 2018) (internal quotation marks
omitted). “‘An unreasonable application occurs when the state
court identifies the correct governing legal rule . . . but
unreasonably applies it to the facts of the particular state
prisoner’s case.’” Id. (quoting White v. Woodall, 572 U.S. 415,
425 (2014)).
In this case, two different courts issued decisions on
Beers’s claims. The New Hampshire Supreme Court adjudicated the
arguments raised in Claims 2, 4, and 6 on direct appeal, and
Merrimack County Superior Court adjudicated Claim 5 but deferred
to the supreme court’s determinations on the other arguments.
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Therefore, those decisions are reviewed under the § 2254(d)
standard. See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
1. Claim 2(a) and (b) – Prosecutor’s Closing Argument on
Lack of Evidence of a Motive to Lie Violated Fourteenth
Amendment Right to Due Process
Beers contends that the prosecutor’s closing argument about
the lack of evidence from the defense to show P.B.’s motive to
lie violated his right to due process under the Fourteenth
Amendment. He further contends that the prosecutor engaged in
misconduct and that the trial court should have declared a
mistrial, sua sponte, because of that argument. The respondent
argues that the claims fail on the merits.
In deciding whether a prosecutor’s comments caused a
violation of a defendant’s Fourteenth Amendment right to due
process, “[t]he relevant question is whether the prosecutor’s
comments ‘so infected the trial with unfairness as to make the
resulting conviction a denial of due process.’” Darden v.
Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)). “That question is to
be answered on a case-by-case basis, . . . taking into account
considerations such as whether the jury was adequately
instructed, the nature and seriousness of the comments, and the
weight of the evidence.” Dorisca, 941 F.3d at 23 (citing Parker
v. Matthews, 567 U.S. 37, 48 (2012)). A mistrial is required
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only as “a last-resort remedy” when “the taint is ineradicable,
that is, only if the trial judge believes the jury’s exposure to
the complained of evidence is likely to prove beyond realistic
hope of repair.” United States v. Chisholm, 940 F.3d 119, 126
(1st Cir. 2019). Prosecutorial misconduct causes a due process
violation only when it is of “‘sufficient significance to result
in the denial of the defendant’s right to a fair trial.’” Greer
v. Miller, 483 U.S. 756, 765 (1987) (quoting United States v.
Bagley, 473 U.S. 667, 676 (1985)).
The New Hampshire Supreme Court concluded that the
prosecutor’s response to defense counsel’s argument about P.B.’s
credibility was appropriate. For that reason, the court found
that no misconduct occurred and no mistrial was needed. The
supreme court explained:
In an effort to call into question the victim’s
credibility, the defendant highlighted the victim’s
prior testimony, but then conceded that he did not
know why, and could not “provide [the jury] with any
answer for why,” the victim would lie. The
prosecutor’s response – that the defendant indeed had
had two prior opportunities to examine the victim
under oath and determine why he might be lying –
simply highlighted evidence that was before the jury,
and underscored the weakness in the defendant’s theory
established by the evidence and acknowledged by the
defendant himself. Nothing in the prosecutor’s
comments suggested that the defendant was obligated to
prove the victim’s motive to lie. We conclude that
the prosecutor’s comments constituted a permissible
evidence-based response to the defendant’s closing
argument.
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State v. Beers, Case No. 2013-0840, at *5 (N.H. Feb. 23, 2015),
(conventionally filed, doc. 31).
As a threshold issue, the New Hampshire Supreme Court
addressed whether the challenged remarks were improper.6 Then,
if the remarks were improper, “[i]n determining whether the
prosecutor’s remarks were harmless, [the court] evaluate[s] the
comments as a whole, not in isolation . . . and focus[es] on (1)
the severity of the misconduct, including whether it was
isolated and or deliberate; (2) whether curative instructions
were given; and (3) the strength of the evidence against [the
defendant.” United States v. Pena-Santo, 809 F.3d 686, 699 (1st
Cir. 2015) (internal quotation marks omitted).
6 Examples of improper statements and comment by prosecutors
include the prosecutor’s personal opinion about the defendant’s
guilt and his opinion that defendant opted not to plead guilty
in the hope of being convicted of only a less serious offense
than murder, Donnelly, 416 U.S. at 640; a closing argument that
characterized the defendant as an animal and gave personal
emotional reactions such as wishing the defendant’s face had
been blown off or he had been killed, Darden, 477 U.S. at 180-
82; the prosecutor’s misstatements of the defendant’s testimony
during closing, Dorisca, 941 F.3d at 22-23; the prosecutor’s
statement that immunity given to a witness meant that he was
instructed that he had to testify and not to lie, Hardy v.
Maloney, 909 F.3d 494, 501 (1st Cir. 2018); the prosecutor’s
statements that the defendant “can’t face the music” and “can’t
stand in front of you” United States v. Gorski, 880 F.3d 27, 37
(1st Cir. 2918); the prosecutor’s comment that only the
defendant knew where he was when victim’s body was burned only
potentially inappropriate, Taylor v. Medeiros, 381 F. Supp. 3d
110, 119 (D. Mass. 2019). Even in those cases, however, the
courts concluded that no due process violation occurred.
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The supreme court’s determination that the prosecutor’s
remarks were permissible is not unreasonable or at odds with the
Supreme Court’s precedents. Even if the remarks had been
improper, they were in response to the defense’s closing
argument and any misconduct was not severe. Further, the jury
was properly instructed on the state’s burden of proof before
the closing arguments were given, and the trial court
reinstructed on the burden of proof after the prosecutor’s
closing. Therefore, the New Hampshire Supreme Court’s decision
was neither contrary to clearly established federal law nor an
unreasonable application of that law.
2. Claim 4 – Prosecutor’s Closing Argument on Lack of
Evidence of a Motive to Lie Violated Fifth Amendment
Protection against Self-Incrimination
The New Hampshire Supreme Court recognized that Beers also
raised an issue that the prosecutor’s remarks about the lack of
defense evidence to show P.B.’s motive to lie violated his Fifth
Amendment protection against self-incrimination. The supreme
court found that “that the prosecutor’s statements did not
amount to an adverse comment on the defendant’s decision not to
present evidence in his own defense.” Beers, 2015 WL 11181926,
at *4. Beers is not entitled to relief under § 2254(d) based on
Claim 4.
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3. Claim 5 – Ineffective Assistance of Counsel in
Violation of the Sixth Amendment
Beers contends that his trial counsel’s representation was
constitutionally ineffective because they did not object when
the prosecutor stated in closing that the jury could convict
Beers if they believed P.B.’s testimony beyond a reasonable
doubt. Beers contends that the prosecutor’s comment misstates
the burden of proof.
To succeed on a claim of ineffective assistance of counsel,
a petitioner must show both “(1) ‘that counsel’s representation
fell below an objective standard of reasonableness,’ . . . and
(2) that any such deficiency was ‘prejudicial to the defense.’”
Garza v. Idaho, 139 S. Ct. 738, 744 (2019) (quoting Strickland
v. Washington, 466 U.S. 668, 687-88 & 692 (1984)). To succeed
on the first step of the inquiry, a petitioner must show that
his counsel’s representation was “outside the wide range of
professionally competent assistance.” Id. at 690. Prejudice
requires a showing that but for the errors in representation
there is a reasonable probability that the outcome of the
criminal trial would have been different. Id. at 688.
In considering Beer’s habeas petition, the superior court
identified the Strickland standard as the governing law for the
claim. The court noted that Beers argued the prosecutor’s
comments in closing suggested to the jury that they were
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required to find Beers guilty if they believed P.B.’s testimony.
The court also interpreted Beers’s claim as challenging the jury
instruction that no corroboration of the victim’s testimony was
necessary.7
The superior court relied on State v. Wilbur, No. 2011-
0627, 2012 WL 12830490 at *3 (N.H. Dec. 14, 2012), in which the
New Hampshire Supreme Court considered a “remarkably similar”
closing argument in an aggravated felonious sexual assault case
where the prosecutor argued that the victim’s testimony was the
truth and that if the jury believed the victim beyond a
reasonable doubt no corroboration was necessary to convict the
defendant. There, the supreme court held that the closing
remarks were not improper and that the jury instruction, based
on RSA 632-A:6, I, was correct. The superior court in Beer’s
case noted that the prosecutor said only that the jury may find
the defendant guilty and concluded that was a correct statement
of the law. As a result, the court held that counsel’s failure
to object to a correct statement of the law was not
constitutionally deficient.
The superior court applied the Strickland standard and
reasonably concluded that Beers’s counsel’s performance was not
7 Beers did not object to that instruction at trial.
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deficient. Therefore, Beers is not entitled to relief under §
2254(d) as to Claim 5.
4. Claim 6 – Prosecutor’s Closing Argument Asked the Jury
to Draw Inferences from Facts not in Evidence in
Violation of the Right to Due Process under the
Fourteenth Amendment
The guilt or innocence of a criminal defendant must be
“determined solely on the basis of the evidence introduced at
trial.” Taylor v. Kentucky¸ 436 U.S. 478, 485 (1978). When a
prosecutor improperly argues facts not in evidence, as in all
cases of alleged prosecutorial misconduct, “[t]he relevant
question is whether the prosecutor’s comments so infected the
trial with unfairness as to make the resulting conviction a
denial of due process.” Darden, 477 U.S. at 181 (internal
quotation marks omitted). During closing argument, however,
prosecutors may ask the jury to use its common sense and draw
reasonable inferences from the evidence. United States v.
Ponzo, 853 F.3d 558, 583 (1st Cir. 2017).
The challenged comments are the prosecutor’s argument in
response to defense counsel’s argument that the state lacked any
evidence to corroborate P.B.’s testimony. Defense counsel
stated, in part: “Not one single person came in and said yes,
over the years I noticed something, [P.B.] seemed troubled, his
grades were falling, there was some signal that something wasn’t
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right at home, but there was nothing, and there was nothing
because Tim Beers is innocent.” In response, the prosecutor
said there were signs that P.B. had been sexually assaulted but
they were hard to recognize and had not been recognized as signs
of abuse. The prosecutor cited P.B.’s “difficulties . . . that
other children don’t have to go through” and P.B.’s drinking and
use of marijuana at college and after. On appeal, Beers argued
that the prosecutor’s argument was improper because there was no
expert testimony to show that those things were signs of sexual
abuse or lay testimony to allow a reasonable inference that
those were signs of abuse.
The supreme court found that the defense’s argument invited
the inference that P.B. had not been abused because of the lack
of corroborating signs such as falling grades or things not
being right at home. The court noted that under New Hampshire
law, see State v. Cressey, 137 N.H. 402, 412 (1993), the
relevance of behavioral evidence of sexual abuse was within the
competence of the jurors. The court held that the prosecutor’s
argument was not improper because he could ask the jury to infer
that P.B.’s problems were signs of abuse, although they had not
been attributed to abuse. The court also noted that P.B.
testified that his drinking and substance abuse was partly
because of his father.
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There was evidence that P.B. had struggled academically and
socially in school, which was attributed to his learning
disability. There was also evidence that P.B. drank and used
marijuana, at least in part, because of his father. In other
words, the supreme court held that the prosecutor’s argument was
not improper because it asked for a permissible inference based
on facts that were in evidence.
That decision is neither contrary to nor an unreasonable
application of federal law, and for that reason, Beers is not
entitled to relief based on Claim 6.
5. Certificate of Appealability
An appeal of a final order in a habeas corpus proceeding is
not appealable “[u]nless a circuit justice or judge issues a
certificate of appealability.” 28 U.S.C. § 2253(c)(1). “A
certificate of appealability may issue under paragraph (1) only
if the applicant has made a substantial showing of the denial of
a constitutional right.” § 2253(c)(2); Rules Governing § 2254
Proceedings 11(a). For the reasons set forth above, the
district judge should find that Beers has not made a substantial
showing of the denial of a constitutional right and decline to
issue a certificate of appealability.
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Conclusion
For the foregoing reasons, the magistrate judge recommends
that the district judge grant the respondent’s motion for
summary judgment (document no. 32), deny the petitioner’s
motions for summary judgment (documents nos. 40 & 41), and
decline to issue a certificate of appealability.
Any objection to this Report and Recommendation must be
filed within 14 days of the receipt of this notice. See Fed. R.
Civ. P. 72(b)(2). The 14-day period may be extended upon
motion. Failure to file a specific written objection to the
Report and Recommendation 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 5, 2019
cc: Timothy Beers, pro se
Elizabeth C. Woodcock, Esq.
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