UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Paul Blackmer

v. Civil No. 05-cv-340-PB

Warden, Northern New Hampshire

Correctional Facility

O R D E R

Pro se petitioner Paul Blackmer has filed an objection

(document no. 21) to my report and recommendation (document no.

19), recommending dismissal of his petition for a writ of habeas

corpus filed pursuant to 28 U.S.C. § 2254. See Rule 4 of the

Rules Governing Section 2254 Proceedings (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). Because I find

Blackmer’s objection to be meritorious, I order him to amend his

petition to demonstrate exhaustion of his unexhausted claims

(Grounds 1-4, 6-7, 9-12, 14-20, 22-25). By report and

recommendation issued simultaneously herewith, I recommend

dismissal of the remaining claims (Grounds 5, 8, 10, 13, 15, 21

Case 1:05-cv-00340-PB Document 26 Filed 06/07/06 Page 1 of 19
1For the reasons discussed herein, I have recommended

dismissal of Grounds 10 and 15 only in part.

2

and 26).1

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).

Background

Blackmer was convicted in New Hampshire Superior Court

(Belknap County) on October 3, 1997 on charges of possession of

marijuana with intent to sell and conspiracy to possess marijuana

with intent to sell. He was again convicted on March 11, 1999 on

a charge of conspiracy to possess marijuana with intent to sell

and was sentenced on May 5, 1999. The underlying facts and

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procedural history regarding Blackmer’s convictions are set

forth, in part, at State v. Blackmer, 149 N.H. 47, 48, 816 A.2d

1014, 1016 (2003):

In April 1994, the police arrested the defendant after

observing him retrieve two packages, containing

approximately fifty pounds of marijuana, from a United

Parcel Service (UPS) office in Laconia. In June 1994,

a grand jury indicted the defendant for possession of

marijuana with the intent to sell and conspiracy to

possess marijuana with the intent to sell. In October

1994, the grand jury reindicted the defendant for

possession of marijuana with intent to sell, subsequent

offense, and conspiracy to possess marijuana with

intent to sell, subsequent offense. The October 1994

indictments replaced the June 1994 indictments; the

State later nol prossed all of these indictments.

In May 1996, a grand jury reindicted the defendant for

possession of marijuana with intent to sell and

conspiracy to possess marijuana with intent to sell

based upon the 1994 UPS incident. In 1997, he was

tried and convicted of these charges and sentenced to

prison.

In May 1996, the defendant was also indicted for

conspiracy to possess marijuana with the intent to sell

stemming from alleged activities between December 1995

and January 1996. This conspiracy charge was severed

from the charges based upon the 1994 incident and is

the charge at issue in this appeal.

State v. Blackmer, 149 N.H. 47, 48, 816 A.2d 1014, 1016 (2003).

In his objection to the report and recommendation, Blackmer

alleges that the instant federal habeas corpus petition pertains

solely to his 1999 conviction (document nos. 21-1 at ¶2 and 23-1

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4

at ¶2). It therefore is clear that his petition is not

successive. The following facts pertain to that conviction. 

Following Blackmer’s 1999 conviction, his counsel, Glenn

Geiger, filed a notice of appeal with the New Hampshire Supreme

Court (“NHSC”) on August 5, 1999. Blackmer subsequently filed an

“objection to court ordered filing of notice of appeal”, arguing

that the appeal inadequately addressed the twenty issues raised. 

While Blackmer has not provided this Court with a copy of the

appeal, the record reflects that the NHSC reviewed only three of

the twenty claims allegedly raised:

(1) whether the State’s failure to provide Blackmer

with a transcript of a police officer’s grand jury

testimony regarding previous offenses of possession of

marijuana with intent to sell and conspiracy to possess

marijuana with intent to sell violated his right to a

speedy trial; 

(2) whether the fact that an alleged co-conspirator was

a police officer who never intended to possess or sell

marijuana negated the crime of conspiracy; and

(3) whether the trial court lacked jurisdiction to

sentence Blackmer and whether the New Hampshire

sentencing statute applied where the crime that was the

object of the conspiracy was to be committed in

Massachusetts. 

The NHSC declined to review the remaining claims on the basis

that they were not preserved, were not fully developed for

appellate review or were not raised in the notice of appeal. See

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Blackmer, 149 N.H. at 48, 816 A.2d at 1016.

On October 22, 1999, Blackmer filed a petition for mandamus

which was subsequently denied; the record is silent as to the

issues raised. In a published decision, the NHSC affirmed

Blackmer’s conviction on January 10, 2003 and subsequently denied

his motion for reconsideration on March 14, 2003. See id.

Blacker then filed a motion for new trial with the New

Hampshire Superior Court (Belknap County) which was denied. His

motion for reconsideration allegedly was denied on August 30,

2004. He also filed a petition for a writ of habeas corpus with

the New Hampshire Superior Court (Merrimack County) on August 30,

2004, which was denied without a hearing on November 17, 2004. 

His subsequent motion for reconsideration was denied on December

17, 2004. None of the aforementioned documents have been

provided to this Court, therefore the record is silent as to the

issues raised. 

Blacker filed an appeal with the NHSC on January 11, 2005

which was dismissed in part and declined in part on June 13,

2005. His motion for reconsideration was denied on September 15,

2005. While Blackmer has provided a copy of the NHSC’s orders,

he has not provided this Court with a copy of his appeal or

Case 1:05-cv-00340-PB Document 26 Filed 06/07/06 Page 5 of 19
2Blackmer has failed to identify any Fourth or Eighth

Amendment claim relating to the N.H. Rev. Stat. Ann. § 629:3,

therefore, I construe his claim to allege only a Fourteenth

Amendment violation.

6

motion for reconsideration, therefore, the record is silent as to

the issues presented to the NHSC. 

Blackmer now brings the instant habeas corpus petition,

which I liberally construe in his favor to allege the following

twenty-six grounds for relief: 

1. denial of the Sixth Amendment right to effective assistance

of trial counsel when:

a. trial counsel defended Blackmer under a bilateral

approach to conspiracy when he was prosecuted,

convicted and sentenced under a unilateral approach to

conspiracy, pursuant to N.H. Rev. Stat. Ann. § 629:3, I 

(Grounds 1 and 22); 

b. trial counsel misconstrued the New Hampshire conspiracy

statute, N. H. Rev. Stat. Ann. § 629:3, I (Ground 2);

and 

c. standby counsel failed to move for a mistrial during

the October 1997 trial when the prosecution disclosed

evidence that re-established Blackmer’s standing to

challenge the unlawful search and seizure (Ground 23);

2. denial of the Sixth Amendment right to a speedy trial when

Blackmer was arrested in January 1996 and tried in March

1999 (Grounds 3 and 14);

3. N.H. Rev. Stat. Ann. § 629:3 is void for vagueness and

ambiguous, in violation of Blackmer’s Fourteenth Amendment

right to due process (Ground 4).2

4. conviction obtained by a defective indictment that failed to

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7

give notice of the offense charged, in violation of

Blackmer’s Fifth Amendment right to due process; Blackmer

further asserts that his conviction was obtained under the

unilateral approach to conspiracy when he was convicted

under the bilateral approach to conspiracy in related

criminal maters (Ground 11);

5. conviction obtained by evidence seized pursuant to a nonarrest (Ground 5) and unlawful search and seizure (Grounds 8

and 13), in violation of Blackmer’s Fourth Amendment right

to be free from unreasonable search and seizure;

6. conviction obtained by prosecution’s failure to disclose

exculpatory evidence in violation of Brady v. Maryland, 373

U.S. 83 (1963) (Grounds 6-7 and 9), including the failure to

disclose memoranda from witness Jane Young (Ground 6),

testimony of Drug Enforcement Agent Michael Connolly (Ground

7) and the identity of Grafton County Deputy Sheriff Kenneth

May (Ground 9);

7. denial of the Sixth Amendment right to appellate counsel

(Grounds 10 and 15), including denial of counsel on direct

appeal (Ground 15);

8. punishment imposed for violation of marijuana laws in

violation of Blackmer’s Eighth Amendment right to be free

from cruel and unusual punishment, as the punishment is

unduly severe for the crime charged (Ground 12);

9. conviction obtained by prosecution’s interference with the

attorney-client relationship, in violation of Blackmer’s

Sixth Amendment right to counsel (Ground 16);

10. denial of the right to a fair trial, in violation of

Blackmer’s Fourteenth Amendment right to due process, where

the New Hampshire jury instruction pertaining to conspiracy

erroneously described a bilateral approach to conspiracy and

Blackmer was tried under a unilateral approach to conspiracy

(Ground 17);

11. trial court lacked jurisdiction to impose the sentence

because:

Case 1:05-cv-00340-PB Document 26 Filed 06/07/06 Page 7 of 19
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a. the crime that was the object of the conspiracy was to

be committed in Massachusetts, therefore, the trial

court was required to sentence Blackmer in accordance

with Massachusetts law (Ground 18) and

b. under New Hampshire conspiracy law, Blackmer was to be

sentenced in accordance with Massachusetts or

California conspiracy law with regard to the issue of

intent to possess and sell marijuana (Ground 20);

12. interference with Blackmer’s Sixth Amendment right to

counsel when trial court ordered counsel to file a notice of

appeal that was inadequate and resulted in the NHSC

declining to review seventeen of twenty claims raised in

that appeal (Ground 19);

13. conviction obtained by entrapment in violation of Blackmer’s

Fourteenth Amendment right to due process, whereby Grafton

County Deputy Sheriff Kenneth May committed the necessary

overt acts in New Hampshire in order to establish a

conspiracy claim against Blackmer (Ground 21); 

14. interference with Blackmer’s Sixth Amendment right to

effective assistance of counsel when trial court denied his

motion for a mistrial despite prosecution’s introduction of

suppressed evidence (Ground 24);

15. denial of the Sixth Amendment right to trial counsel (Ground

25); and 

16. denial of meaningful access to the courts arising from

inadequate law library facilities (Ground 26).

Discussion

I. Custody and Exhaustion

To be eligible for habeas relief, Blackmer 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

Case 1:05-cv-00340-PB Document 26 Filed 06/07/06 Page 8 of 19
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not required, such as the absence of an available or effective

state corrective process). See 28 U.S.C. § 2254(a) & (b); see

also Duncan v. Henry, 513 U.S. 364, 365 (1995). He satisfies the

first requirement as he is currently incarcerated at the Northern

New Hampshire Correctional Facility and thus is in custody. 

However, Blackmer fails to satisfy the second requirement because

the petition does not demonstrate that he has fully exhausted his

state remedies with regard to each claim. Nor has he alleged any

facts to suggest that effective state court remedies are

unavailable to him.

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

appellate courts so that the state had the first chance to

correct the claimed constitutional error”); see also Baldwin v.

Reese, 541 U.S. 27, 29 (2004) (citing Duncan, 513 U.S. at 365-66

(requiring petitioner to “fairly present” his claim in the

appropriate state courts, including a state supreme court with

powers of discretionary review, thereby alerting that court to

Case 1:05-cv-00340-PB Document 26 Filed 06/07/06 Page 9 of 19
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the federal nature of the claim)). “[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. DiPaola, 131

F.3d 259, 261 (1st Cir. 1997) (emphasis added). 

In the instant petition, Blackmer raises twenty-six grounds

for federal habeas corpus relief. For the reasons stated below,

I conclude that certain claims are not cognizable for purposes of

federal habeas review (Grounds 5, 8, 10, 13, 15, 21 and 26) and

by report and recommendation issued simultaneously herewith

recommend that they be dismissed. As the remaining claims have

not been shown to be exhausted (Grounds 1-4, 6-7, 9-12, 14-20,

22-25), Blackmer is permitted to amend his petition to

demonstrate exhaustion of state remedies as to those claims.

A. Noncognizable Claims

1. Unreasonable Search and Seizure

Grounds Five, Eight and Thirteen of the petition allege that

Blackmer was subjected to a series of unreasonable searches and

seizures in violation of his Fourth Amendment rights. 

Habeas corpus relief is not available on a Fourth Amendment

claim where the petitioner had a full and fair opportunity to

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raise the claim in state court. See Stone v. Powell, 428 U.S.

465, 494 (1976) (“[W]here the State has provided an opportunity

for full and fair litigation of a Fourth Amendment claim, a state

prisoner may not be granted federal habeas corpus relief on the

ground that evidence obtained in an unconstitutional search or

seizure was introduced at his trial.”); accord Gandarilla v.

Artuz, 322 F.3d 182, 185 (2d Cir. 2003)(“[T]he merits of a Fourth

Amendment challenge are not reviewable in a federal habeas

proceeding if a defendant has had a fair opportunity to litigate

that question in State court. . .”).

Here, the petition does not present any facts from which

this Court could conclude that Blackmer was not given a full and

fair opportunity to litigate his Fourth Amendment claims in the

state courts. To the contrary, the petition indicates that he

did litigate certain Fourth Amendment claims stemming from an

alleged unlawful search and seizure. Blackmer asserts that the

trial court erred in denying his motion for a mistrial when the

prosecution introduced evidence that was seized during a January

1996 search of his residence (document no. 15 at p.13, ¶4). 

Although the record is silent as to whether he sought further

review of his Fourth Amendment claims, Blackmer has not alleged

that he was denied this opportunity or any state corrective

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process. His Fourth Amendment claims therefore are not

reviewable in federal habeas corpus. Accordingly, by report and

recommendation issued simultaneously herewith I recommend

dismissal of his Fourth Amendment claims as alleged in Grounds

Five, Eight and Thirteen.

2. Denial of the Right to Appellate Counsel

Grounds Ten and Fifteen of the petition allege that Blackmer

was denied the Sixth Amendment right to appellate counsel

(Grounds 10 and 15). Blackmer appears to allege that he was

denied appellate counsel on direct appeal of his conviction and

also during post-conviction or collateral proceedings.

The Supreme Court recently has held that in certain

circumstances due process and equal protection require

appointment of counsel for indigent defendants who seek firsttier or initial direct appeal. See Halbert v. Michigan, 125 S.

Ct. 2582, 2586-87 (2005)(holding that the Federal Constitution

imposes on states no obligation to provide appellate review of

criminal convictions, however, where state provides first appeals

as of right, state must appoint counsel to represent indigent

defendants). It is well established, however, that there is no

constitutional right to counsel after the first appeal as of

right and, therefore, no right to counsel on post-conviction or

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collateral proceedings. See Coleman v. Thompson, 501 U.S. 722,

752-53 (1991). To the extent Blackmer alleges denial of

appellate counsel during post-conviction or collateral

proceedings, his claims are not reviewable in federal habeas

corpus. Accordingly, by report and recommendation issued

simultaneously herewith I recommend dismissal of those claims

(Grounds 10 and 15, in part). To the extent he alleges denial

of appellate counsel on direct appeal of his conviction, I order

Blackmer to amend his petition, as explained below, to

demonstrate exhaustion of his claims and the federal nature of

his claims (Grounds 10 and 15, in part).

3. Denial of Meaningful Access to the Courts

Blackmer further alleges that he has been denied adequate

law library facilities and meaningful access to the courts

(Ground 26). While prisoners possess the constitutional right of

meaningful access to the courts, see Bounds v. Smith, 430 U.S.

817, 821 (1977), a prisoner’s claim challenging his ability to

gain access to the courts is a challenge to his conditions of

confinement and, therefore, should be brought as a civil rights

action under 42 U.S.C. § 1983 or Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),

rather than a petition for a writ of habeas corpus. See Lewis v.

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Casey, 518 U.S. 343 (1996); Lehn v. Holmes, 364 F.3d 862 (7th

Cir. 2004). Because Blackmer’s claim pertains solely to his

conditions of confinement, I conclude that it is not cognizable

under federal habeas review. Accordingly, by report and

recommendation issued simultaneously herewith I recommend

dismissal of this claim (Ground 26).

4. Entrapment

Construed liberally, Ground Twenty-one of the petition

appears to allege the defense of entrapment and that Blackmer’s

conviction was obtained by entrapment in violation of his

Fourteenth Amendment right to due process (Ground 21). Blackmer 

alleges that the prosecution and police orchestrated the

conspiracy, whereby Grafton County Deputy Sheriff Kenneth May

committed the necessary overt acts in New Hampshire in order to

establish a conspiracy claim against Blackmer.

It is well-established that entrapment is not a

constitutional defense. See Hampton v. United States, 425 U.S.

484, 488-91 (1976); United States v. Russell, 411 U.S. 423, 433

(1973). See also Vega v. Suthers, 195 F.3d 573, 583 (10th Cir.

1999)(defense of entrapment not of a constitutional dimension

(citations omitted). Claims relating to the denial of an

entrapment defense, even when the defense is applicable as a

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matter of state law, are not cognizable in habeas because such

claims are not of constitutional magnitude. See Vega, 195 F.3d

at 583-83 & n.16 (citing Johns v. McFadden, No. 93-15844, 1994 WL

192391, at *3 (9th Cir. May 13, 1994); see also Tocco v.

Senkowski, 2002 WL 31465803, at *3 (S.D.N.Y. Nov. 4, 2002) (claim

of entrapment does not raise a constitutional issue; failure of

trial judge to give entrapment charge, even if error, does not

entitle petitioner to habeas corpus relief); Bouyer v. Elo, 2001

WL 902504, at *4 (E.D. Mich. Jun. 28, 2001)(claim of entrapment a

state law issue and not cognizable on habeas review); Maples v.

Stegall, 175 F. Supp. 2d 918, 922 (E.D. Mich. 2001) (entrapment

not a constitutional defense). To the extent Blackmer alleges a

claim of entrapment, I conclude that it is a state law issue and

therefore not cognizable on federal habeas review. Accordingly,

by report and recommendation issued simultaneously herewith I

recommend dismissal of this claim (Ground 21).

B. Unexhausted Claims

With regard to the remaining claims (Grounds 1-4, 6-7, 9-12,

14-20, 22-25), Blackmer has failed to demonstrate exhaustion of

state remedies. While Grounds Eighteen and Twenty are similar to

the claims raised in his appeal to the NHSC, it is unclear from

the record whether Blacker has presented the federal nature of

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those claims to the NHSC for review. To demonstrate exhaustion

of each unexhausted claim, Blackmer must provide the court with

copies of any additional motions, petitions, notices of appeal,

briefs and orders and/or final judgments issued by the state

courts, addressing the above claims. 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 particular, he should provide this Court with copies

of each notice of appeal to the NHSC. He may need to return to

the state courts to fully present the unexhausted claims and the

federal nature of each claim 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 habeas corpus petition 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. See

Rhines v. Weber, 544 U.S. 269, 278-79 (2005) (permitting a

federal district court to stay a federal habeas action and hold

the petition in abeyance while the petitioner exhausts claims in

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3For the reasons discussed herein, I have recommended

dismissal of Grounds 10 and 15 only in part.

17

state court). See also Duncan v. Walker, 533 U.S. 167, 182-83

(2001) (Stevens, J., concurring) (district court may retain

jurisdiction over a meritorious claim and stay further

proceedings pending the complete exhaustion of state remedies). 

Staying unexhausted claims 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”). Accordingly, if Blackmer elects to exhaust his

unexhausted claims, I will order the proceedings stayed and the

petition held in abeyance, pending complete exhaustion of state

remedies. 

Conclusion

For the reasons stated above, and by report and

recommendation issued simultaneously herewith, I recommend

dismissal of Grounds 5, 8, 10, 13, 15, 21 and 26.3

Because the remaining claims have not been shown to be

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exhausted, I will allow Blackmer an opportunity to amend his

petition to demonstrate exhaustion of state remedies and clearly

identify the federal nature of those claims, Grounds 1-4, 6-7, 9-

12, 14-20, 22-25. To make this showing, he is instructed to

provide the court with a copy of his notice(s) of appeal to the

NHSC and any other relevant state court pleadings, orders or

decisions within thirty (30) days. If the claims have not been

exhausted, he is ordered to notify the court either (1) that he

is withdrawing the claims or (2) that he is proceeding in state

court to exhaust them. 

 In the event he chooses to exhaust in state court, he must

commence the state court proceedings within thirty (30) days of

the date of this order. I will order the proceedings stayed and

the petition held in abeyance, pending complete exhaustion of

state remedies. The stay will be issued under the following two

conditions:

1. Blackmer is ordered to contact this court

every 90 days, beginning from the date of entry of

this order, and inform the court of the status and

pendency of his state court proceedings, if any,

and the disposition of any appeal or related

matter. 

2. Within 30 days following any ruling and/or

notification by the New Hampshire Supreme Court on

the claims at issue, and the exhaustion of such

claims, Blackmer must notify this court of the

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ruling and submit all briefs or other pleadings

filed in the state court proceedings; he must also

file a request with this Court, stating that his

state court matter has been disposed of and that

he wishes to terminate the stay and have this

court further consider his petition. 

Failure to comply with either condition may result in

dismissal of the petition without prejudice. 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: June 7, 2006

cc: Paul Blackmer, pro se

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