UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Joshua Manning

v. Civil No. 05-cv-369-SM

Larry Blaisdell, Warden,

Northern New Hampshire

Correctional Facility

O R D E R

Before the Court for preliminary review is Joshua Manning’s

pro se petition for a writ of habeas corpus (document no. 1)

filed pursuant to 28 U.S.C. § 2254. See Rule 4 of the Rules

Governing § 2254 proceedings (requiring initial review to

determine whether the petition is facially valid); see also

United States District Court for the District of New Hampshire

Local Rule (“LR”) 4.3(d)(2) (authorizing the magistrate judge to

preliminarily review pro se pleadings). As discussed herein, I

find that Manning has not sufficiently demonstrated exhaustion to

allow the petition to proceed at this time. Accordingly, I order

Manning to amend his petition to demonstrate exhaustion as

directed herein.

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Standard of Review

In reviewing a pro se complaint, the court is obliged to

construe the pleading liberally. See Ayala Serrano v. Lebron

Gonzales, 909 F.2d 8, 15 (1st Cir. 1990) (following Estelle v.

Gamble, 429 U.S. 97, 106 (1976) to construe pro se pleadings

liberally in favor of the pro se party). “The policy behind

affording pro se plaintiffs liberal interpretation is that if

they present sufficient facts, the court may intuit the correct

cause of action, even if it was imperfectly pled.” Ahmed v.

Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997), cert denied, Ahmed

v. Greenwood, 522 U.S. 1148 (1998).

At this preliminary stage of review, all factual assertions

made by the plaintiff and inferences reasonably drawn therefrom

must be accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3

(1st Cir. 1996) (stating the “failure to state a claim” standard

of review and explaining that all “well-pleaded factual

averments,” not bald assertions, must be accepted as true). This

review ensures that pro se pleadings are given fair and

meaningful consideration. See Eveland v. Dir. of C.I.A., 843

F.2d 46, 49 (1st Cir. 1988).

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1The claims identified herein will be considered for all

purposes to be the claims raised in the petition. If the

petitioner disagrees with the identification of the claims

herein, he must properly amend his complaint to reflect the

intended claims. Along these lines, I presume that the exclusion

of the consecutive sentence issue raised in the NHSC from this

petition was intentional and I will not consider that issue as a

claim raised here.

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Background

On December 1, 2003, Joshua Manning was sentenced to three

to seven years in the New Hampshire State Prison with consecutive

suspended prison sentences, pursuant to his conviction for felon

in possession of a firearm, burglary, and theft by unauthorized

taking. Manning took a direct appeal to the New Hampshire

Supreme Court (“NHSC”), which affirmed his conviction. Manning

raised three grounds in his appeal before the NHSC: 1) the trial

court improperly failed to suppress the fruits of an

unconstitutional search and seizure from evidence, 2) the trial

court failed to run sentences concurrently that were based on the

same criminal conduct, and 3) the court failed to properly grant

Manning credit for time he served awaiting trial. Manning now

raises two of those issues as claims in this petition: the

alleged Fourth Amendment violation and the denial of credit for

time served.1 

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2Manning’s petition does not actually cite the federal

constitution. Applying a liberal construction of the petition, I

have determined which constitutional amendments are implicated by

the arguments raised.

4

Manning alleges that the issues presented here were

presented in his direct appeal to the New Hampshire Supreme

Court. However, as Manning has not provided this Court with any

documentation of the manner in which these claims were raised, it

is impossible to know precisely how they were raised, or whether

the federal constitutional arguments attendant to these claims

were raised, in the state courts.2 

Discussion

1. Search and Seizure Claim

Manning first claims that his conviction and sentence are

unconstitutional because they relied on evidence that was

procured with a search and seizure that violated Manning’s Fourth

Amendment rights. Claims based on the Fourth Amendment’s

prohibition against unreasonable searches and seizures are not

cognizable in federal habeas review. See Stone v. Powell, 428

U.S. 465, 494 (1976) (“[W]here the State has provided an

opportunity for full and fair litigation of a Fourth Amendment

claim, a state prisoner may not be granted federal habeas corpus

relief on the ground that evidence obtained in an

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unconstitutional search or seizure” was used to obtain his

conviction). The petition does not present any facts from which

this Court could conclude that petitioner was not given a full

and fair opportunity to litigate these issues in the state

courts. To the contrary, the petition indicates that petitioner

did litigate this issue in the trial court in a motion to

suppress evidence, and again on appeal to the NHSC. 

Petitioner is being ordered to amend his petition. Because

habeas relief is not available for this claim, this issue should

not be included in the amended petition. In a Report and

Recommendation issued simultaneously with this Order, I recommend

dismissal of this claim.

2. Time Served Credit Claim

To be eligible for habeas relief, Manning must show that he

is both in custody and has exhausted all state court remedies or

that he is excused from exhausting those remedies because of an

absence of available or effective state corrective process. See

28 U.S.C. § 2254(a) & (b); Braden v. 30th Jud. Cir. Ct. of Ky.,

410 U.S. 484, 489-92 (1973); Benson v. Super. Ct. Dep’t of Trial

Ct. of Mass., 663 F.2d 335, 358-59 (1st Cir. 1981). Manning

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satisfies the custody requirement as he is currently serving his

state prison sentence. 

A petitioner’s remedies in New Hampshire are exhausted when

the State’s highest court has had an opportunity to rule on the

petitioner’s federal constitutional claims. See Lanigan v.

Maloney, 853 F.2d 40, 42 (1st Cir. 1988), cert. denied, 488 U.S.

1007 (1989) (“habeas corpus petitioner must have presented the

substance of his federal constitutional claim to the state

appellate courts so that the state had the first chance to

correct the claimed constitutional error”); see also Picard v.

Connor, 404 U.S. 270, 275 (1971) (requiring petitioner to have

fairly presented the federal nature of his claims to the state

courts to give them the first opportunity to remedy the claimed

constitutional error).

“[T]he exhaustion principle holds, in general, that a

federal court will not entertain an application for habeas relief

unless the petitioner first has fully exhausted his state

remedies in respect to each and every claim contained within the

application.” Adelson v. DiPaolo, 131 F.3d 259, 261 (1st Cir.

1997). Manning has indicated that he appealed the issue of

pretrial credit to the NHSC. However, it is not at all clear

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3Manning has indicated that he has had difficulty in

obtaining paperwork from his trial and appellate attorneys. The

New Hampshire Supreme Court has held that “a client's file

belongs to the client, and upon request, an attorney must provide

the client with the file.” Averill v. Cox, 145 N.H. 328, 339

(2000) (internal citations omitted); N.H. R. Prof. Conduct

1.16(d) ("Upon termination of representation, a lawyer shall take

steps to the extent reasonably practicable to protect a client's

interests, such as ... surrendering papers and property to which

the client is entitled....") Accordingly, Manning should not

have any difficulty obtaining such paperwork from his former

attorneys by simply requesting them. This was the sole issue

presented to the Court in support of Manning’s request for courtappointed counsel. Because counsel is ethically obligated to

provide Manning with his files, there is no reason for this Court

to appoint counsel at this time. I accordingly deny the request

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that he has raised the federal nature of that claim in the state

courts. Therefore, I find that Manning has not yet demonstrated

exhaustion of his claim alleging a failure to credit him for time

served, and I will direct him to amend his complaint to

demonstrate exhaustion of this claim in the state courts. In

other words, Manning must file documentation demonstrating that

this issue, including the provision of the United States

constitution or federal law that he claims was violated, was

raised in the state courts and ultimately presented to the NHSC

for consideration. This documentation includes any pleadings,

briefs, notice of appeal or other documents filed in the state

trial and appellate courts relative to this claim and any orders

issued in the state courts relative to this claim.3

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for counsel without prejudice to the motion being renewed should

circumstances warrant.

4If this petition were to be dismissed for failing to

demonstrate exhaustion, the dismissal would be without prejudice

as it would be procedural and not based on the merits of

Manning’s claims. See Slack v. McDaniel, 529 U.S. 473 (2000).

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Conclusion

Manning is ordered to amend his complaint to demonstrate

exhaustion of his time served credit claim, as discussed herein,

within thirty days of the date of this Order. Should additional

time be required to obtain proper documentation of exhaustion

from former counsel, Manning must file a request for additional

time describing his efforts to obtain those documents. Failure

to amend the petition to demonstrate exhaustion of his claim may

result in the dismissal of the petition.4

SO ORDERED.

__________________________________

James R. Muirhead

United States Magistrate Judge

Date: October 25, 2005

cc: Joshua Manning, pro se

Philip Desfosses, Esq.

Sven D. Wiberg, Esq.

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