1Documents 1, 9-11, 14, 21, and attachments thereto, filed

by Pandolfi in this matter, will be considered in the aggregate

to constitute the petition for a writ of habeas corpus in this

matter.

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

Before the Court is William Pandolfi’s latest filing,

entitled “In Re Memorandum to Support Enclosed Documents”

(document no. 21) filed pursuant to his effort to seek a petition

for a writ of habeas corpus. The case initially came to me on

May 19, 2005 to conduct a preliminary review of Pandolfi’s

petition for a writ of habeas corpus (document nos. 1, 9-11, 14 &

21)1 pursuant to Rule 4 of the Rules Governing § 2254 Cases in

the United States District Courts (“§ 2254 Rules”) and United

States District Court for the District of New Hampshire Local

Rule (“LR”) 4.3(d)(2) (authorizing the Magistrate Judge to

preliminarily review cases filed by incarcerated pro se

Case 1:05-cv-00165-SM Document 22 Filed 10/03/06 Page 1 of 8
2

plaintiffs). For the reasons explained herein, I direct Pandolfi

to amend his petition to elect to (1) remove the unexhausted

claims and proceed on the exhausted claims, with the

understanding that he may not be able to raise the unexhausted

claims in the future, or (2) leave his petition unchanged, in

which case this Court will recommend to the District Judge that

the petition be dismissed because it is a mixed petition.

Standard of Review

Under this Court’s local rules, when an incarcerated person

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).

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3

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

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

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

Discussion

The habeas petition in this matter initially raised ten

claims. Because Pandolfi’s initial petition failed to

demonstrate that any of the claims raised, or the federal nature

of those claims, had been exhausted in the state courts, Pandolfi

was directed to amend his petition to demonstrate exhaustion in a

June 7, 2005 Order (document no. 5). Pandolfi was given the

opportunity to stay his petition in this Court and return to the

state courts to complete exhaustion of his claims.

On July 5, 2005, Pandolfi filed a pleading entitled

“Addendum/Statement of the Case in Claim #1 to Petition for Writ

of Habeas Corpus” (document no. 9). On July 11, 2005, Pandolfi

Case 1:05-cv-00165-SM Document 22 Filed 10/03/06 Page 3 of 8
4

filed a pleading entitled “Addendum/Additional Allegations to

Petition for Writ of Habeas Corpus” (document no. 10) and on July

22, 2005, Pandolfi filed a pleading entitled “Addendum/Memorandum

in Support of Petition for Writ of Habeas Corpus” (document no.

11). 

On July 28, 2005, I directed Pandolfi to demonstrate by

August 27, 2005 that he had taken steps to exhaust his claims in

the New Hampshire Supreme Court (document no. 12). Pandolfi

responded on August 12, 2005 with a “Motion to Stay Petition

Pending Resolution of State Case” (document no. 13). I granted

that motion in an Order that also directed Pandolfi to notify

this Court of the status of his state court proceedings every 90

days. Pandolfi did not file any 90-day status reports.

The next filing from Pandolfi was received on May 12, 2006,

which was a motion to reopen his case (document no. 14), as his

case had been administratively closed during the stay. The case

was reopened on June 5, 2006. On July 13, 2006, I directed

Pandolfi, again, to provide this Court with a specific list of

his claims before this Court, the exhaustion status of each

claim, including the federal nature of the claim, and other

information pertinent to this Court’s preliminary review of the

Case 1:05-cv-00165-SM Document 22 Filed 10/03/06 Page 4 of 8
5

petition within thirty days of the date of the Order (document

no. 15). Pandolfi filed a number of pleadings with the Court

between July 20, 2006 and August 14, 2006 (document nos. 16-18 &

20) which were non-responsive to the directives of my July 13,

2006 Order. Finally, on September 11, 2006, Pandolfi filed a

pleading entitled “In Re Memorandum to Support Enclosed

Documents” (document no. 21). 

Among its many hundreds of pages of attached documents, the

pleading included notices of appeal filed in the New Hampshire

Supreme Court by Pandolfi in 2004 and 2006. After carefully

reviewing the information submitted to the Court by Pandolfi in

this case, I find that Pandolfi has affirmatively demonstrated

exhaustion in the state courts of seven of his claims, which are

set forth in my June 7, 2005 Order as numbers 1-3, 5-7 and 10, by

submitting notices of appeal that show that Pandolfi has

presented his claims, and the federal constitutional nature of

those claims, to the New Hampshire Supreme Court for review. I

also find, after reviewing Pandolfi’s submissions, that the claim

numbered 9, asking this Court to “protect and preserve all

constitutional issues missed by non trained pro se defendant, who

had a right to protection in the first place” was not intended to

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2Even in the event that this were raised as a habeas claim,

the Court is not in a position to act as the petitioner’s

attorney and specifically protect and preserve issues not raised

by the petitioner. Pliler v. Ford, 542 U.S. 225, 231 (2004).

3If Pandolfi does elect to forego his unexhausted claims it

is unlikely he would ever be able to raise them in a future

federal habeas petition due to the prohibition against second or

6

be raised as a habeas claim in this action.2 As to claims

numbered 4 and 8, Pandolfi has still not demonstrated exhaustion

of these claims.

Federal district courts may not adjudicate mixed petitions,

which are petitions containing both exhausted and unexhausted

claims. Rose v. Lundy, 455 U.S. 509, 518-19 (1982). The Supreme

Court has acknowledged that District Courts have the power to

stay the exhausted claims in mixed petitions while a petitioner

returns to the state courts to complete exhaustion of the

unexhausted claims. Rhines v. Weber, 544 U.S. 269, 277 (2005). 

This Court exercised that authority in this matter, and stayed

the case to give Pandolfi the opportunity to exhaust all of the

claims in his petition.

Pandolfi has now returned to this Court with most, but not

all, of his claims exhausted. Pandolfi has also not, thus far,

elected to forego any of his claims. This will be Pandolfi’s

last opportunity to forego his unexhausted claims in this Court.3

Case 1:05-cv-00165-SM Document 22 Filed 10/03/06 Page 6 of 8
successive petitions. 28 U.S.C. § 2244.

4If this petition were to be dismissed for failing to

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). 

However, a dismissal without prejudice may still endanger the

timeliness of future petitions filed by Pandolfi.

7

If Pandolfi decides to proceed with this mixed petition

unchanged, I will have to recommend that it be dismissed in its

entirety for failure to demonstrate exhaustion of all of the

claims raised therein.4 See § 2254 Rule 4.

Motion for the Appointment of Counsel

On at least two prior occasions, Pandolfi has sought and

been denied the appointment of counsel in this matter. 

Pandolfi’s most recent requests for counsel are now before the

Court (document nos. 18 & 21). I again deny Pandolfi’s request

for appointed counsel.

Conclusion

Pandolfi is to file an amendment to his petition within

twenty (20) days, advising this Court as to how he intends to

proceed in this matter. Specifically, Pandolfi must elect either

to:

1. Forego his unexhausted claims and proceed on his seven

exhausted claims; or

Case 1:05-cv-00165-SM Document 22 Filed 10/03/06 Page 7 of 8
8

2. Proceed with his petition unchanged, knowing that I

will recommend to the District Judge that the petition be

dismissed as a mixed petition.

If Pandolfi fails to comply with this Order, I will

recommend the petition be dismissed for failure to demonstrate

exhaustion of each claim therein. 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: October 3, 2006

cc: William Pandolfi, pro se

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