UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

David A. Hagar

v. Civil No. 05-cv-344-SM

State of Maine, et al.

REPORT AND RECOMMENDATION

Pro se petitioner David A. Hagar has filed a petition for a

writ of habeas corpus, pursuant to 28 U.S.C. § 2254 (document

nos. 1 and 2). The petition is before me for preliminary review. 

See Rule 4 of the Rules Governing Section 2254 Proceedings

(“Habeas Rules”) (requiring initial review to determine whether

the petition is facially valid and may be served); United States

District Court for the District of New Hampshire Local Rules

4.3(d)(authorizing the magistrate judge to preliminarily review

pro s e pleadings). For the reasons stated below, I recommend

that the petition be dismissed without prejudice for lack of

subject matter jurisdiction.

Background

Hagar is a resident of New Hampshire and an employee of the

Portsmouth Naval Shipyard. He brings this petition for a writ of

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1The Supreme Court held that the Portsmouth Naval Shipyard

was within the State of Maine, see also Ayotte v. State Tax

Assessor, 797 A.2d 730 (2002) (taxpayers, all residents of New

Hampshire, appealed a decision of the Maine Revenue Services

demanding payment of income tax and assessing penalties and

interest).

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habeas corpus, broadly alleging that his liberty was restrained

during the course of civil proceedings before the New Hampshire

Superior Court (Strafford County). While the precise issues

raised in the instant petition are unclear, they appear to relate

to Hagar’s ongoing civil proceedings in Stafford County. In the

state court proceedings, he challenged, among other things, taxes

imposed upon him by the State of Maine following a 2001 United

States Supreme Court decision involving a boundary dispute

between the states of Maine and New Hampshire, see New Hampshire

v. Maine, 532 U.S. 742 (2001).1

At all times relevant to this petition, the record reflects

that Hagar was not incarcerated pursuant to a state court

judgment or otherwise subjected to substantial restraints upon

his liberty. Although he brings this action for federal habeas

relief pursuant to Section 2254, he does not challenge any

conviction or confinement, allege any cognizable federal claim or

identify with particularity the relief he seeks from this Court. 

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Standard of Review

In reviewing a pro se petition, this Court must construe the

pleadings liberally and in favor of the pro se petitioner. See

Ayala Serrano v. Gonzalez, 909 F.2d 8, 15 (1st Cir. 1990)

(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)). At this

preliminary stage of review, all factual assertions made by a

petitioner and the inferences reasonably drawn therefrom must be

accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3 (1st

Cir. 1996)(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. Director of CIA, 843 F.2d 46, 49

(1st Cir. 1988). I apply this standard in reviewing Hagar’s

petition.

Discussion

Section 2254 permits habeas corpus review for a person who

alleges that he is “. . . in custody pursuant to the judgment of

a State Court only on the ground that he is in custody in

violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2254(a). The “in custody” requirement is

jurisdictional and is satisfied if the petition is filed while

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the petitioner is in custody pursuant to the conviction or

sentence being attacked. Spencer v. Kemna, 523 U.S. 1, 7

(1998)(citing Carafas v. La Vallee, 391 U.S. 234, 238 (1968) and

Maleng v. Cook, 490 U.S. 488, 490-91 (1989). Actual physical

imprisonment is not required, see Hensley v. Municipal Court, San

Jose-Milpitas Judicial Dist., 411 U.S. 345, 351 (1973)(release on

own recognizance) and Lefkowitz v. Newsome, 420 U.S. 283, 286

(1975)(release on bail pending appeal), so long as a petitioner

suffers from substantial restraints not shared by the public,

Jones v. Cunningham, 371 U.S. 236, 243 (1963) (parole). 

Where a petitioner’s sentence has expired, a concrete and

continuing injury resulting from the conviction - that is, a

collateral consequence of the conviction - must exist if the suit

is to be maintained. See Carafas, 391 U.S. at 237-38. The “in

custody” requirement has never been extended to the situation

where a habeas petitioner suffers no present restraint from a

conviction at the time the petition is filed. See Maleng, 490

U.S. at 492.

 In the instant petition, Hagar does not allege that he is

in custody pursuant to a state court judgment or that he filed

the petition while he was incarcerated. There is no indication

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that he is currently subject to conditions of release while

awaiting trial or that his freedom of movement otherwise rests in

the hands of judicial officers. See Hensley, 411 U.S. at 351. 

Because Hagar does not challenge any conviction or sentence which

has caused him to be placed into custody or otherwise deprived

him of liberty, I conclude that he has not satisfied the “in

custody” requirement under Section 2254 and, therefore, has not

met the statutory jurisdictional prerequisite.

Conclusion

For the foregoing reasons, I recommend that the petition be

dismissed without prejudice for lack of subject matter

jurisdiction.

If this report and recommendation is approved, the claims as

identified in this report and recommendation, will be considered

for all purposes to be the claims raised in the complaint. If

petitioner disagrees with the identification of the claims

herein, he must do so by objection filed within ten (10) days of

receipt of this report and recommendation, or he must properly

move to amend. 

Any further objection to this report and recommendation must

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

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to file objections within the specified time waives the right to

appeal the district court’s order. See 28 U.S.C. § 636(b)(1);

see also Unauthorized Practice of Law Committee 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: November 1, 2005

cc: David A. Hagar, pro se

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