UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Allan Cullen

v. Civil No. 04-cv-339-PB

Warden, New Hampshire State Prison

O R D E R

Allan Cullen’s petition for a writ of habeas corpus

(document no. 4) initially came before the Court for preliminary

review on September 10, 2004, challenging his state court

conviction on the following grounds:

1. Cullen’s Fifth and Fourteenth Amendment due process 

rights were violated when the trial court allowed a 

witness to testify for the state without adequate 

notice to the defense;

2. Cullen’s Fifth and Fourteenth Amendment due process 

rights process were violated when the trial court 

refused to strike the testimony of a witness who 

violated a sequestration order by conferring with 

another trial witness;

3. Cullen’s Sixth Amendment right to the effective 

assistance of counsel was violated when his trial 

counsel:

a. failed to object to the state’s suggestive incourt identification of Cullen;

b. failed to object to a prosecutor’s inappropriate 

closing statement; and 

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c. failed to investigate Cullen’s medical history to 

determine whether or not his competence to stand 

trial was at issue; and

4. Cullen’s Fifth and Fourteenth Amendment due process 

rights were violated when the prosecutor:

a. engaged in a suggestive in-court identification; 

and 

b. inappropriately vouched for the credibility of a 

state’s witnesses in his closing argument.

On January 5, 2005, I issued an Order staying this action

and directing Cullen to amend his petition to demonstrate that

his claims had been properly exhausted in the state courts

(document no. 5). In that Order, I directed Cullen to present

the claims identified above, including the federal constitutional

nature of each claim, to the state courts for consideration. 

Once the state’s highest court, the New Hampshire Supreme Court,

rendered a final decision on the claims, Cullen was directed to

return to this Court, seek a lift of the stay in the case, and

file an amended petition demonstrating exhaustion of the claims,

along with all of the pleadings, documents, and orders filed in

or issued by the state courts relevant to exhaustion. Cullen was

further directed to advise this Court of the status of his case

every ninety days while his efforts at exhaustion were underway.

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Cullen has filed a status report in this Court every ninety

days for almost five years. I have thoroughly reviewed the

contents of each of these status reports, and attachments

thereto, and it is apparent that, despite the Court’s patience,

Cullen has thus far failed to raise any of the substantive claims

in his petition to any state court since this Court issued its

January 5, 2005 Order. Cullen has made numerous attempts to

obtain transcripts, tapes, criminal records, recorded witness

interviews, and similar “discovery” items through the state

courts as a precedent to filing his substantive claims in a state

habeas petition. While Cullen has been diligent in his efforts

to obtain those documents, his efforts have been misguided and

have done nothing to advance the exhaustion of his claims in the

state courts.

Cullen must immediately present the substance of his claims,

including the federal constitutional nature of each claim, to the

state Superior Court in a state habeas action. After that action

has been filed, Cullen may address any issues concerning

discovery materials or evidence he needs to prove those claims

with the hearing court. Once the Superior Court has rendered a

decision, if the petition is denied, Cullen must appeal each of

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his federal constitutional challenges to his conviction to the

New Hampshire Supreme Court for consideration in order to satisfy

the exhaustion requirement of the federal habeas statute. See 28

U.S.C. § 2254(b).

Cullen is now ordered to:

1. File a substantive habeas petition in the state

Superior Court, including each of the claims he seeks to raise

here, within thirty (30) days of the date of this Order;

2. Notify this Court that such an action has been filed

within thirty (30) days of the date of this Order;

3. Continue to provide this Court with status reports of

that action every ninety (90) days until the claims are fully

exhausted in the state courts. Cullen should note that the

status reports he files, going forward, should contain

information regarding the exhaustion of his claims in his state

habeas action. Professional Conduct Committee correspondence,

attempts to obtain information from his former attorneys,

documents related to his sentence, tapes, and all other acts that

are not taken in furtherance of a state habeas action that has

already been filed are not relevant to this Court’s determination

of whether or not Cullen has exhausted his claims in the state

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courts;

4. Once the claims are fully exhausted Cullen must return

to this Court, seek a lift of the stay in this case, and file an

amended petition demonstrating exhaustion of each of the claims

raised here. 

 If Cullen fails to comply with this Order, I will recommend

that this petition be dismissed for failure to demonstrate

exhaustion of state remedies. 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: December 1, 2009

cc: Allan Cullen, pro se

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