UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Gary W. Howard

v. Civil No. 05-cv-277-PB

Warden, Northern New Hampshire

Correctional Facility

O R D E R

Pro se petitioner Gary W. Howard has filed a petition for a

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

the constitutionality of his state court conviction and

confinement (document no. 1). 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 se pleadings). For the reasons stated

below, I order Howard to amend the petition to identify the

federal nature of his claims and to demonstrate exhaustion of

state remedies. 

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Howard v. Northern NH Correctional Facility, Warden Doc. 4

Dockets.Justia.com
1The petition alleges that Howard was charged with five

counts of aggravated felonious sexual assault, two counts of

felonious sexual assault and one count of sexual assault but

fails to identify the precise offenses for which he was

convicted.

2

Background

Convicted of sexual assault offenses by the New Hampshire

Superior Court (Rockingham County) on September 29, 2000, Howard

was sentenced to a term of imprisonment.1 He is currently

serving his sentence at the Northern New Hampshire Correctional

Facility (“NCF”).

Howard filed a motion for new trial with the superior court

on the grounds of newly discovered evidence of the victim’s

recantation of certain testimony. His motion was denied on

August 5, 2004, and his motion for reconsideration was denied on

July 25, 2005. He also filed two notices of appeal with the New

Hampshire Supreme Court but provides insufficient information as

to the precise issues raised and only identifies his claims in a

cursory fashion. In his first appeal he alleged that the trial

court erred in denying him a colloquy. In his second appeal he

broadly alleged that the victim recanted testimony. Without

providing any relevant dates, he claims that both appeals were

denied. He now brings the instant petition for a writ of habeas

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corpus challenging his conviction and confinement on four

grounds, as discussed below. 

Standard of Review

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

pleadings liberally, see Ayala Serrano v. Gonzalez, 909 F.2d 8,

15 (1st Cir. 1990)(following Estelle v. Gamble, 429 U.S. 97, 106

(1976)), treating all well-pleaded factual allegations as true

and drawing all reasonable inferences in the litigant’s favor,

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).

Discussion

I. Custody and Exhaustion

To be eligible for habeas relief, a petitioner must show

that he is in custody and has exhausted all state court remedies

(or that he falls within a narrow category of cases in which

exhaustion is not required, such as the absence of an available

or effective state corrective process). See 28 U.S.C. § 2254 (a)

& (b). Howard satisfies the custody requirement, as he is

currently incarcerated at the NCF, but fails to satisfy the

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exhaustion requirement.

“Barring certain exceptional circumstances not present here,

a habeas petitioner in state custody may not advance his or her

constitutional claims in a federal forum unless and until the

substance of those claims has been fairly presented to the

state’s highest court.” Barresi v. Maloney, 296 F.3d 48, 51 (1st

Cir. 2002). The exhaustion requirement, codified at 28 U.S.C. §§

2254 (b) & (c), embodies principles of federal-state comity and

is designed to provide state courts with an initial opportunity

to pass upon and correct alleged violations of a prisoner’s

federal rights. See O’Sullivan v. Boerckel, 526 U.S. 838, 845

(1999) (“Because the exhaustion doctrine is designed to give the 

state courts a full and fair opportunity to resolve federal

constitutional claims before those claims are presented to the

federal courts, we conclude that state prisoners must . . .

[invoke] one complete round of the State’s established appellate

review process.”); accord Duncan v. Henry, 513 U.S. 364, 365-66

(1995); Picard v. Connor, 404 U.S. 270, 275-76 (1971). 

“To provide the State with the necessary ‘opportunity,’ the

prisoner must ‘fairly present’ his claim in each appropriate

state court (including a state supreme court with powers of

discretionary review), thereby alerting that court to the federal

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nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004)

(holding that a state prisoner does not “fairly present” a

federal claim to a state court if that court must read beyond a

petition, brief or similar document that does not alert it to the

presence of a federal claim). Thus, if Howard has failed to

adequately present his federal constitutional claims to the New

Hampshire Supreme Court, he is precluded from seeking relief in

federal court.

II. Habeas Corpus Claims

Howard alleges four grounds for federal habeas corpus

relief. Ground One of the petition alleges that the victim, his

former stepdaughter, recanted her testimony and may have been

coerced by the prosecution to present perjured testimony. 

Construed liberally, Ground Two alleges that Howard was entitled

to a new trial based on the alleged post-trial recantations by

the victim-witness. Ground Three is unintelligible but appears

to reiterate the allegations in Ground One. Ground Four simply

alleges that the victim admitted to being sexually active. 

While Howard asserts that the above claims were presented to

and reviewed by the state courts, he has not provided any

supporting documentation demonstrating that each claim and the

federal nature of each claim was actually presented to the New

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Hampshire Supreme Court. Accordingly, I conclude that his claims

are unexhausted for purposes of federal habeas review. 

To demonstrate exhaustion, he must provide the court with

copies of any motions, petitions, notices of appeal, briefs and

orders and/or final judgments issued by the state courts

addressing each claim presented in his federal petition. See

Smith v. Digmon, 434 U.S. 332, 333 (1978) (discussing 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). In amending his petition Howard is

instructed to identify the federal nature of his claims and

constitutional rights allegedly abridged. For example, if he

intends to allege a federal due process violation arising from

the victim’s recantation of trial testimony and the existence of

newly discovered exculpatory evidence, he must present such issue

to the state courts and then to this Court. See Herrera v.

Collins, 506 U.S. 390, 400 (1993)(quoting Townsend v. Sain, 372

U.S. 293, 317 (1963) (“A claim ‘based on newly discovered

evidence ha[s] never been held to state a ground for federal

habeas relief absent an independent constitutional violation

occurring in the underlying state criminal proceeding.’” See also

Sanders v. Sullivan, 863 F.2d 218, 225 (2d Cir. 1988) (“Only

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recantations of material testimony that would most likely affect

the verdict rise to the level of due process violation, if a

state, alerted to the recantation, leaves the conviction in

place.”); Reddick v. Haws, 120 F.3d 714 (7th Cir. 1997)(“To

establish that sexual assault conviction was obtained in

derogation of due process, in light of victim’s subsequent

recantation, habeas corpus petitioner had to prove that

prosecution made knowing use of perjured testimony.”). Howard

may need to return to the state courts to fully present any

unexhausted claims and the federal nature of those claims before

he can make the required amendment to his federal petition.

III. Stay

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 [he] engaged in

intentionally dilatory litigation tactics. Rhines v. Weber, 125

S. Ct. 1528, 1535 (2005) (permitting a federal district court to

stay a federal habeas action and hold the petition in abeyance

while the petitioner exhausts claims in state court); see also

Duncan v. Walker, 533 U.S. 167, 182-83 (2001) (Stevens, J.,

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concurring) (district court may retain jurisdiction over a

meritorious claim and stay further proceedings pending the

complete exhaustion of state remedies). Staying unexhausted

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, 15 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 Howard has alleged that a superior court order was

entered on July 25, 2005 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 the petition. 

Accordingly, absent additional information provided by Howard, I

will not stay the petition at this time.

Conclusion

For the reasons stated above, Howard is ordered to amend his

petition within thirty (30) days of the date of this Order to

identify the federal nature of his claims and to demonstrate

exhaustion of state court remedies. 

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Failure to comply with this order may result in my

recommendation to the presiding judge that the petition be

dismissed without prejudice for failure to demonstrate exhaustion

of the claims presented.

SO ORDERED.

__________________________________

James R. Muirhead

United States Magistrate Judge

Date: August 11, 2005

cc: Gary W. Howard, pro se

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