1These 104 claims were set out and numbered in an appendix

to my February 8, 2005 order.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Daniel D. Small

v. Civil No. 04-cv-405-PB

Bruce Cattell, Warden,

Northern New Hampshire

Correctional Facility

REPORT AND RECOMMENDATION

Before the Court is Daniel Small’s amended petition for a

writ of habeas corpus filed pursuant to 28 U.S.C. § 2254

(document no. 9). The amended petition was filed in response to

this Court’s February 8, 2005 Order directing Small to amend his

original habeas petition to either forego the unexhausted claims

in his petition or to return to the state courts to exhaust his

unexhausted claims, and then return to this Court to amend his

petition once all of his claims were exhausted.

Small’s original petition contained 104 claims that Small

asserted entitled him to habeas relief.1 The original petition

failed to establish or demonstrate exhaustion of 71 of those

Case 1:04-cv-00405-PB Document 10 Filed 01/23/06 Page 1 of 8
2My February 8, 2005 order identified these numbered claims

as: 1-21, 23-39, 44, 48, 50, 53-57, 59-78, 80, 87, 94, 101, and

102.

3The claims originally numbered 7, 37, 39, 44, 48, 53, 57,

60-72, 74, 78, and 80 now appear to have been exhausted by

2

claims.2 Small elected to return to the state court to complete

exhaustion of those claims.

This Court’s order to amend his petition notified Small of

the specific claims that were unexhausted and described the

process for fully exhausting habeas claims in state court. Small

was further directed to amend his petition to provide the

information to this Court that would demonstrate exhaustion of

his claims. Finally, Small’s original petition was stayed to

give him the opportunity to amend without jeopardizing the

timeliness of his petition. 

Small’s amended petition falls short of demonstrating

exhaustion of his claims in a number of ways. Small did not

elect to forego any of his original claims. Small instead

returned to the state court and filed a motion for a new trial in

the superior court. The motion was unsuccessful and Small

appealed the superior court’s decision to the New Hampshire

Supreme Court. That Court declined Small’s appeal. The state

court litigation exhausted some of Small’s claims,3 but failed to

Case 1:04-cv-00405-PB Document 10 Filed 01/23/06 Page 2 of 8
Small’s February 2005 motion for a new trial and subsequent

appeal of that motion to the New Hampshire Supreme Court. 

4Small has failed to demonstrate exhaustion of the following

numbered claims in his original and amended petition: 1-6, 8-21,

23-36, 38, 50, 54-56, 59, 73, 75-77, 87, 94, 101, and 102.

5To avoid confusion, I will begin numbering these new claims

at 105, so as not to confuse the claims with any of the 104

claims raised in the original petition.

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exhaust 48 of the claims filed in the original petition in this

Court.4

Additionally, Small’s amended petition included 27 claims

that were not raised in his original petition.5 Those claims

are:

105. Small’s trial counsel was ineffective because she lied 

to and deceived Small regarding the witnesses she 

intended to call at trial;

106. Small’s trial counsel was ineffective in that she 

attempted to improperly contact and tamper with a 

witness by sending the witness a note through a 

juvenile witness in the case;

107. Small’s trial counsel was ineffective in that she 

failed to publish the police reports to the jury as 

Small requested;

108. Small’s trial counsel was ineffective in that she 

refused to present a document to the judge and/or jury 

proving that the temporary protective order Small was 

charged with violating had expired prior to the date of

the alleged violation;

109. Small’s trial counsel was ineffective in that she 

refused to present the court with a “false” fax that 

Case 1:04-cv-00405-PB Document 10 Filed 01/23/06 Page 3 of 8
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one of the state’s witnesses, Officer Woodbury, had 

sent;

110. Small’s trial counsel was ineffective in that she 

allowed the spoilage of evidence of 911 calls by 

refusing to seek enforcement of an order directing that

the evidence be preserved;

111. Small’s trial counsel was ineffective in that she 

refused to impeach trial witnesses with the fact that 

the 911 call evidence had been destroyed;

112. Small’s trial counsel was ineffective in that she 

refused to introduce an exculpatory statement from a 

witness, Sgt. Ernest Bellette, during trial;

113. Small’s trial counsel was ineffective in that she 

failed to call character witnesses on petitioner’s 

behalf at trial;

114. Small’s trial counsel was ineffective in that she 

failed to file a motion to withdraw despite the fact 

that she had a known conflict of interest in 

representing petitioner;

115. Small’s trial counsel was ineffective in that she 

failed to object to the trial judge’s failure to 

provide the jury with any instruction regarding the 

elements of “abuse” and “credible threat;”

116. Small’s trial counsel was ineffective in that she 

failed to preserve a record for appeal regarding a jury

question regarding the “following” element of the 

offense charged;

117. Small’s trial counsel was ineffective in that she 

failed to argue that Small was selectively prosecuted 

in retaliation for the complaint Small filed with the 

Office of Public Integrity regarding the state actors 

involved in his criminal case;

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118. Small’s trial counsel was ineffective because she 

failed to obtain courthouse security tapes that had 

been ordered produced by the Hillsborough County 

Superior Court;

119. Small’s trial counsel was ineffective in that she 

failed to inform Small that she was under a 

Professional Conduct Committee investigation regarding 

allegations of dishonesty;

120. Small’s trial counsel was ineffective in that she 

failed to investigate the state actors’ commission of 

perjury;

121. Small’s trial counsel was ineffective for her failure 

to identify the party responsible for denying 

petitioner access to his children who were potentially 

exculpatory witnesses in the case;

122. Small’s trial counsel was ineffective for her failure 

to report the prosecutor for his pre-arrest involvement

with petitioner’s wife in petitioner’s divorce case;

123. The prosecutor violated petitioner’s rights by 

interfering with his divorce proceedings by altering 

evidence, obtaining counsel for petitioner’s wife, and 

discussing petitioner’s confidential information from 

his pre-sentence investigation with the guardian ad 

litem in the divorce matter;

124. The prosecutor violated petitioner’s rights by denying 

petitioner a fair trial by incorrectly representing to 

the trial judge that petitioner had been convicted of 

domestic violence against his wife;

125. The prosecutor denied petitioner a fair trial by 

intimidating petitioner’s trial counsel and thus 

preventing her from deposing or subpoenaing 

petitioner’s two children who were potentially 

exculpatory witnesses in the case;

Case 1:04-cv-00405-PB Document 10 Filed 01/23/06 Page 5 of 8
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126. The prosecutor violated petitioner’s rights when he 

continued to prosecute petitioner after he had involved

himself in petitioner’s case before petitioner had been

arrested, thus making himself a witness in the case and

disqualifying himself as a prosecutor;

127. The prosecutor violated petitioner’s rights by failing 

to preserve for appellate review the jury’s question 

regarding the “following” element of the offense 

charged;

128. The trial judge violated petitioner’s rights by failing

to preserve a record for appellate review regarding a 

jury question regarding the “following” element of the 

offense charged;

129. The trial judge violated petitioner’s rights by failing

to notify petitioner that the state had secretly 

extended the amended domestic violence order after the 

alleged violations had occurred;

130. The trial judge denied petitioner a fair trial when he 

denied petitioner’s trial counsel access to the 

petitioner’s children, who were potentially exculpatory

witnesses in the case;

131. The trial judge denied petitioner a fair trial and the 

effective assistance of counsel when he refused to 

reschedule the presentence investigation so that 

petitioner’s counsel could attend the proceeding.

While the petitioner’s amended complaint demonstrates

exhaustion of thirteen of the new claims, numbered: 105, 107-109,

111-114, 117, 119, 122, 126 and 129, Small has failed to

demonstrate that he has exhausted fourteen of his newly raised

claims, numbered: 106, 110, 115, 116, 118, 120, 121, 123-125,

127, 128, 130 and 131. The petition in this case thus continues

Case 1:04-cv-00405-PB Document 10 Filed 01/23/06 Page 6 of 8
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to be a “mixed petition,” in that it includes both unexhausted

and exhausted claims.

“[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) (emphasis added). The Supreme Court has recently decided

that a district court should stay a mixed petition containing

both exhausted and unexhausted claims to give petitioner the

opportunity to exhaust if the petitioner “has good cause for his

failure to exhaust, his unexhausted claims are potentially

meritorious, and there is no indication that the petitioner

engaged in intentionally dilatory litigation tactics.” Rhines v.

Weber, 125 S.Ct. 1528, 1535 (2005). 

While I cannot find that Small has intentionally engaged in

“dilatory litigation tactics,” I find that petitioner cannot at

this time make a showing of good cause for his failure to exhaust

all of his claims, as he has been afforded ample opportunity and

direction in that regard and has still failed to exhaust all of

the claims raised. Because Small’s petition still contains many

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claims that remain unexhausted along with unexhausted claims, I

must recommend dismissal of the petition in its entirety. See

Tart v. Mass., 949 F.2d 490, 494 (1st Cir. 1991); (citing Rose v.

Lundy, 455 U.S. 509, 513-21 (1982)). If the District Judge

approves this recommendation, the petition will be dismissed

without prejudice for failure to demonstrate exhaustion. See

Slack v. McDaniel, 529 U.S. 473, 488 (2000).

Any objections to this Report and Recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

Law Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992); United

States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: January 23, 2006

cc: Daniel D. Small, pro se

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