UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

William J. Pandolfi

v. Civil No. 05-cv-165-SM

Ashbelt T. Wall, et al.

O R D E R

William Pandolfi has filed a petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254 challenging his New Hampshire

criminal conviction and sentence (document no. 1). The petition

is before me for preliminary review. 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 the petition does not at this time make a facially

sufficient showing that Pandolfi is entitled to relief. I order

therefore that Pandolfi amend his petition to demonstrate that

each of the claims therein have been properly exhausted before I

will direct that the petition be answered.

Case 1:05-cv-00165-SM Document 5 Filed 06/07/05 Page 1 of 12
2

Standard of Review

Under this Court’s local rules, when an incarcerated

plaintiff commences an action pro se and in forma pauperis, the

magistrate judge is directed to conduct a preliminary review.

LR 4.3(d)(2). In conducting the preliminary review, the Court

construes pro se pleadings 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

Case 1:05-cv-00165-SM Document 5 Filed 06/07/05 Page 2 of 12
3

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

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

Background

William Pandolfi was twice tried on charges of sexual

assault in the late 1990s. The first trial ended in mistrial. 

Pandolfi was convicted in April 1998, after his second trial. 

Pandolfi then took a direct appeal to the New Hampshire Supreme

Court (“NHSC”) alleging: (1) that the trial court improperly

admitted damaging testimony against him and that the curative

instruction given to the jury regarding the damaging testimony

was insufficient; and (2) that the trial court improperly refused

to conduct an in camera review of certain records of the victim

in the case. The NHSC denied relief on the testimony and jury

instruction issues, but agreed that the trial court erred in

failing to conduct in camera review of the victim’s records. 

State v. Pandolfi, 145 N.H. 508, 512, 515 (2000), reh’g denied

Feb. 28, 2001. The trial court remanded the matter back to the

trial court for further review and action. Apparently, the April

1998 conviction was subsequently affirmed. Pandolfi alleges that

between the time his conviction was affirmed and the present, he

has engaged in a plethora of state court litigation, although he

Case 1:05-cv-00165-SM Document 5 Filed 06/07/05 Page 3 of 12
4

has neither said precisely what that litigation involved, where

it took place, the exact dates of the proceedings, nor provided

any pleading or other document filed in any state court.

Pandolfi appears to allege ten distinct claims entitling him

to federal habeas relief in his petition:

1. The trial judge interfered with Pandolfi’s trial 

and pretrial proceedings by making forensic and 

scientific findings that resulted in improperly 

admitted evidence;

2. Pandolfi’s trial counsel was ineffective when he 

failed to object to or confront certain testimony, 

challenge the grand jury proceedings, obtain 

discovery, waived Pandolfi’s probable cause 

hearing without his consent, and failed to present 

evidence favorable to Pandolfi at trial;

3. The prosecutor engaged in misconduct by knowingly 

presenting false evidence to the grand jury;

4. Pandolfi’s right to access the courts was denied 

when the NHSC refused to address his pleadings 

within a reasonable time, creating an excessive 

delay in his pending mandamus matter before that 

court;

5. Pandolfi’s right to confront and cross-examine the 

evidence against him at trial was denied when the 

judge denied him access to prior testimony of a 

witness or witnesses for impeachment purposes and 

the prosecutor was permitted thereby to admit 

false testimony into evidence at trial;

6. Pandolfi’s appellate counsel was ineffective when 

he filed appeal paperwork on Pandolfi’s behalf 

while acting under a conflict of interest;

Case 1:05-cv-00165-SM Document 5 Filed 06/07/05 Page 4 of 12
To the extent that Pandolfi intends to state a violation of 1

a right to be released on parole, such a claim is not cognizable

in a federal habeas petition. It is well-settled that a

convicted person has no constitutional right to be conditionally

released before the expiration of a valid sentence. See

Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1,

7 (1979). A valid conviction, with all its procedural

safeguards, extinguishes that liberty right. Id.; see also

Meachum v. Fano, 427 U.S. 215, 224 (1976). If Pandolfi’s amended

petition continues to include a habeas claim for a violation of

his right to be granted parole, such a claim will be dismissed

when the amended petition is reviewed by this Court. 

5

7. Pandolfi’s sentence is vindictive and unsupported 

by evidence in that it is based on unsupported and 

unproven allegations against Pandolfi, it was 

based on a prosecutor’s recommendation that 

increased after trial from what had been offered 

in exchange for a guilty plea, and because the 

parole board requires that he confess to the crime 

he was convicted of before he is eligible for 

parole;1

8. Pandolfi alleges that he is entitled to relief on 

the basis of an “Unperfected record denying 

constitutional violations exposure for review by 

the States Supreme Court;”

9. Pandolfi seeks relief in the form of this Court’s 

action to “protect and preserve all constitutional 

issues missed by non trained pro-se defendant who 

had a right to protection in the first place;”

10. Pandolfi alleges that he is being subjected to an 

“ex-post facto application of program requirement 

for parole which would require an extorted 

confession,” because the sentencing judge gave him 

an extended term sentence and ordered him to 

complete programs that were not available at the 

time of his criminal act, and that he is being 

denied good time to which he is entitled and 

Case 1:05-cv-00165-SM Document 5 Filed 06/07/05 Page 5 of 12
6

punished for exercising his constitutional right 

to trial.

Discussion

To be eligible for habeas relief, Pandolfi 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. § 2241 and § 2254(a) & (b); see 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 355, 358-59 (1st Cir.

1981). Pandolfi satisfies the first requirement as he is

currently serving a New Hampshire State Prison sentence and is

thus in custody. See Jones v. Cunningham, 371 U.S. 236 (1971)

(parole satisfies custody requirement of habeas statute). 

However, the petition does not establish satisfaction of the

exhaustion requirement.

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

Case 1:05-cv-00165-SM Document 5 Filed 06/07/05 Page 6 of 12
7

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).

While Pandolfi’s petition alleges ten claims, Pandolfi has

not stated a federal right that would serve as the basis for any

of his claims except that he alleges “due process” violations in

his claim challenging his sentence as vindictive and unsupported

by the evidence, and his claim that he was subjected to a

sentence that was not available at the time of his offense. 

Further, he has asserted a Sixth Amendment violation in his claim

that he was denied the effective assistance of counsel when his

trial counsel failed to preserve errors for appellate review. 

Pandolfi has not, however, demonstrated that any of his

claims, or the federal nature of any of his claims, have been

fairly presented to, and thereby exhausted in, any state court. 

In order to demonstrate exhaustion of his claims, including the

federal nature of the claims, Pandolfi must submit to this Court

copies of all of his pleadings before the state courts regarding

Case 1:05-cv-00165-SM Document 5 Filed 06/07/05 Page 7 of 12
8

any of the issues he seeks to raise in this petition, so that

this Court can determine whether or not the state courts have

been given a fair opportunity to rule on the claims raised here

and the federal nature of those claims, to allow this action to

proceed. 

Additionally, Pandolfi alleges that at least one of his

claims has been presented to the NHSC and is still pending there,

not having been decided in a time frame that Pandolfi feels will

adequately vindicate his rights. Pandolfi’s petition before this

Court does not make clear what claims are pending in the NHSC

such that the resolution of those claims would exhaust any of his

claims here, or, otherwise render them eligible for federal

habeas review. Therefore, even if Pandolfi were able to state a

claim for unreasonable delay sufficient to excuse him from the

exhaustion requirement by the NHSC’s failure to dispose of his

case within sixty days, which is far from certain, he must first

demonstrate that the claims he asserts here, and their federal

nature, have been presented to the NHSC, for consideration.

In order to proceed with his current habeas petition,

therefore, Pandolfi must amend his petition to include, for each

claim presented in his petition, documentation, including

Case 1:05-cv-00165-SM Document 5 Filed 06/07/05 Page 8 of 12
9

motions, petitions, notices of appeal, briefs, or other pleadings

showing that the precise federal nature of the issues presented

here were in fact presented in the state courts. See Smith v.

Digmon, 434 U.S. 332, 333 (1978) (listing documents which would

enable a federal court to determine whether the grounds

supporting the habeas petition had been presented for review in

the state courts). Pandolfi may have to return to the state

courts to fully present these claims, and the federal nature of

those claims, in those courts before he can make the required

amendment to his current petition. 

The Supreme Court has recently decided that a district court

should stay a mixed petition containing both exhausted and

unexhausted claims 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, 1531 (2005); see also Duncan v. Walker,

533 U.S. 167, 182-83 (2001) (Stevens, J., concurring) (“There is

no reason why a district court should not retain jurisdiction

over a meritorious claim and stay further proceedings pending the

complete exhaustion of state remedies.”). Staying unexhausted

Case 1:05-cv-00165-SM Document 5 Filed 06/07/05 Page 9 of 12
10

claims is “the preferable course in many cases involving ‘mixed’

petitions - and it may be the only appropriate course in cases in

which an outright dismissal threatens to imperil the timeliness

of a collateral attack.” Neverson v. Bissonnette, 261 F.3d 120,

126 n.3 (1st Cir. 2001); see also Delaney v. Matesanz, 264 F.3d

7, 14 n.5 (1st Cir. 2001) (recommending staying exhausted claims

where “there is 

a realistic danger that a second petition, filed after exhaustion

has occurred, will be untimely”). 

Because Pandolfi has alleged that his state court litigation

was still pending at the time this action was filed, and there is

no indication that any of his claims have been exhausted, it does

not appear that a stay is necessary at this time to protect the

timeliness of this petition. Accordingly, absent additional

information being provided by Pandolfi, I am not inclined to stay

the petition at this time. 

Motion for the Appointment of Counsel

On May 31, 2005, Pandolfi filed a motion seeking the

appointment of counsel in this case (document no. 4). There is

no absolute constitutional right to free legal representation in

a civil case. Bemis v. Kelley, 857 F.2d 14, 15 (1st Cir. 1988). 

Case 1:05-cv-00165-SM Document 5 Filed 06/07/05 Page 10 of 12
11

Rather, appointment of counsel in a civil case is left to the

discretion of the court. See 28 U.S.C. § 1915(d). An indigent

litigant must demonstrate that exceptional circumstances exist to

justify appointment of counsel, such that without counsel the

litigant most likely would be unable to obtain due process of the

law. DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991);

Cookish v. Cunningham, 787 F.2d 1, 2 (1st Cir. 1986) (per

curiam). In the case at hand, petitioner has failed to establish

the existence of such circumstances. The petitioner’s motion for

counsel is denied without prejudice to refiling in the future

should circumstances warrant.

Conclusion

Pandolfi is ordered to amend his petition within thirty days

of the date of this Order to demonstrate for each claim presented

in his petition:

1. What precise violation of what federal right is

alleged;

2. What pleadings have been filed in what state courts to

present each claim, and its federal nature, to those courts;

3. The state courts’ responses to each of the claims

presented;

Case 1:05-cv-00165-SM Document 5 Filed 06/07/05 Page 11 of 12
If this petition were to be dismissed for failing to 2

demonstrate exhaustion, the dismissal would be without prejudice

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

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

12

4. What dates each state court action was commenced and

concluded; and

5. The precise nature of any pending action, including

what claims are pending, and what, if anything, warrants a

determination that the actions of the state courts have caused an

“unreasonable delay” on the resolution of these matters.

If Pandolfi fails to amend his petition as directed in this

Order, the petition will be dismissed for failure to demonstrate

exhaustion of all of the claims presented.2

SO ORDERED.

__________________________________

James R. Muirhead

United States Magistrate Judge

Date: June 7, 2005

cc: William J. Pandolfi, pro se

Case 1:05-cv-00165-SM Document 5 Filed 06/07/05 Page 12 of 12