2002-678, PETITION OF RAYMOND J. BAHMER (Withdrawn July 15, 2003)

THE SUPREME COURT OF NEW HAMPSHIRE

Merrimack
No. 2002-678

PETITION OF RAYMOND J. BAHMER

Argued: March 12, 2003
Opinion Issued: June 13, 2003
Withdrawn: July 15, 2003

Raymond J. Bahmer, by brief and orally, pro se.

Philip T. McLaughlin, attorney general (Stephen D. Fuller, senior assistant attorney general, on the brief and orally), for the State.

BRODERICK, J. The petitioner, Raymond J. Bahmer, appeals an order of the Superior Court (McHugh, J.) dismissing his petition for writ of habeas corpus. We affirm.

The record supports the following facts. The petitioner was convicted by a jury of two counts of aggravated felonious sexual assault and one count of felonious sexual assault. We affirmed his convictions. State v. Bahmer, 142 N.H. 464 (1997). The petitioner thereafter filed a petition for writ of habeas corpus alleging, among other things, ineffective assistance of trial and appellate counsel. The trial court dismissed the petition.

On appeal, the petitioner argues that the trial court erred in dismissing his petition without an evidentiary hearing. He contends that his petition alleged sufficient facts to warrant a hearing on his ineffective assistance claims and other alleged constitutional violations. The State argues that the trial court properly dismissed the petition because the claims were either previously litigated, procedurally barred, or insufficient as a matter of law.

A petition for writ of habeas corpus is a collateral proceeding that may be used to challenge the legality of a restraint on liberty. The petitioner bears the burden of alleging facts that, if true, would entitle him to relief. A trial court may dismiss a habeas petition without a hearing when the pleadings, record, and law show that the petitioner is not entitled to relief.

To prevail on a claim of ineffective assistance of counsel, a petitioner must show both that counsel's performance was constitutionally deficient and that the deficient performance prejudiced the defense. The prejudice inquiry requires a showing of a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.

The petitioner first challenges trial counsel's handling of witness testimony and trial strategy. The claims either were addressed on direct appeal or rest on conclusory allegations insufficient to demonstrate deficient performance or prejudice. Disagreements over trial tactics, without more, do not establish ineffective assistance.

The petitioner next contends that appellate counsel was ineffective for failing to raise every issue he wished to pursue. Appellate counsel is not required to raise every nonfrivolous issue, and the process of selecting stronger issues for review is ordinarily a matter of professional judgment. The petitioner has not shown that omitted issues had merit or that their inclusion probably would have changed the outcome of the appeal.

The petitioner also asserts that certain claims should not be barred because they implicate constitutional rights. Habeas corpus, however, does not permit repetitive litigation of claims previously decided, nor does it excuse the failure to raise available claims absent a showing that the procedural default should be overlooked. The petitioner has made no such showing.

After reviewing the petition, attachments, and record, we conclude that the trial court did not err in dismissing the petition without an evidentiary hearing. The petition did not allege facts that, if proven, would entitle the petitioner to habeas relief.

Affirmed.

BROCK, C.J., and NADEAU, DALIANIS and DUGGAN, JJ., concurred.