UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Odalis Gonzalez

v. Civil No. 05-cv-252-PB

Bruce W. Cattell, Warden,

New Hampshire State Prison

O R D E R

Before the Court is Odalis Gonzalez’s “Petition for Writ of

Habeas Corpus” (document no. 1), filed pursuant to 28 U.S.C. §

2254. Gonzalez has also filed a “Motion to Stay and Hold in

Abeyance” (document no. 3). The matter is before me for

preliminary review. See Rule 4 of the Rules Governing § 2254

Proceedings (“§ 2254 Rule”) (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 4.3(d)(2) (authorizing the magistrate judge to

preliminarily review pro se pleadings).

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 and

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Gonzalez v. NH State Prison, Warden Doc. 5

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to prepare a report and recommendation determining whether the

complaint or any portion thereof should be dismissed because:

(i) the allegation of poverty is untrue, the 

action is frivolous, malicious, or fails to state 

a claim upon which relief may be granted, or seeks 

monetary relief from a defendant who is immune 

from such relief under 28 U.S.C. § 1915A(b); or

(ii) it fails to establish subject matter 

jurisdiction under Fed. R. Civ. P. 12(b)(1).

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

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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).

Background

Gonzalez is an inmate at the New Hampshire State Prison. He

was convicted on October 31, 2002 of narcotics charges and

sentenced to fifteen to thirty years in prison. Gonzalez’s

conviction was affirmed by the New Hampshire Supreme Court on

July 14, 2004. The appeal to the New Hampshire Supreme Court

contained one issue regarding the admission of certain evidence

at trial. Petitioner now alleges that many additional issues

that were ripe for appellate review were not raised in his appeal

and that he was denied the effective assistance of counsel on

appeal. Petitioner further alleges violations of his rights

under the the Due Process Clause of the United States

Constitution. Gonzalez has not specified with particularity the

content of the claims he intends to raise in this petition.

Gonzalez intends to file a motion for a new trial in the

state trial court raising the issues he alludes to here, while

also exhausting them for purposes of federal habeas review. To

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1It is noteworthy that this petition appears to have been

filed one week before the expiration of the one-year limitations

period for filing federal habeas petitions. 

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that end, he seeks a two-year stay of his instant petition to

allow him the two years permitted under state law to file his

motion for a new trial.1

Discussion

To be eligible for habeas relief, Gonzalez 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 also 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). Gonzalez satisfies the first requirement as he is

currently serving his sentence at the New Hampshire State Prison

and is thus in custody. However, as petitioner concedes, the

petition does not establish satisfaction of the exhaustion

requirement at this time.

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.

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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 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).

To date, Gonzalez has not stated what claims he intends to

pursue in this petition. Rather than dismiss the petition

entirely for failing to state any claim that is facially

sufficient to warrant that the petition be answered, I will

direct Gonzalez to amend his petition within thirty days of the

date of this order to identify for this Court what claims he

intends to raise in his federal habeas petition. 

Because Gonzalez will have to demonstrate exhaustion of

those claims before his petition is allowed to proceed, I will

give Gonzalez the opportunity to return to the state courts and

exhaust his claims in those courts. I cannot find, however, that

Gonzalez will reasonably require two years of preparation time

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prior to filing his motion for a new trial. Instead, I will

direct Gonzalez to return to the state court and file his motion

for a new trial within thirty days of the date of this Order. 

Upon filing his motion for new trial, Gonzalez must notify this

Court that the motion for a new trial has been filed, and must

forward a copy of that motion with his notice to this Court

within ten days of its filing in the state court. Upon receipt

of that notice, this matter will be stayed pending the completion

of the state court post-conviction litigation of the claims

presented here.

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

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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”). Gonzalez has

alleged that one issue that entitles him to relief has been

presented to the New Hampshire Supreme Court, but that he intends

to raise other issues that have yet to be presented to the state

courts for consideration. 

It is clear that dismissal of this petition will imperil the

timeliness of the claim that may already have been exhausted, as

well as those that have yet to be exhausted. There is nothing

before the Court to indicate that “the petitioner engaged in

intentionally dilatory litigation tactics” either in pursuing his

claims in the state courts or in this Court. Rhines, 125 S.Ct.

at 1531. Liberally construing the petition as I must, I find

that while petitioner has not at this time made a specific

showing of good cause for his failure to exhaust the federal

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nature of his claims, he has demonstrated that he has made

efforts to exhaust at least one of his claims in state court. 

The Court further notes that Gonzalez asserts that he does not

speak english as a first language, and that he is a pro se

litigant not well-versed in the complexities of the law. See

Rhines, 125 S.Ct. at 1536 (Stevens, J., concurring) (the “good

cause” requirement should not be read “to impose the sort of

strict and inflexible requirement that would trap the unwary pro

se prisoner.” (internal citation omitted)); see also id. (Souter,

J., concurring) (pro se habeas petitioners do not come well

trained to address tricky exhaustion determinations). 

I cannot conclude at this stage of the proceedings that

Gonzalez’s yet to be raised claims could not present meritorious

challenges to his conviction and/or sentence. Under the

circumstances presented herein, the Court finds that the proper

course of action is to stay this petition pending Gonzalez’s

identification and exhaustion of all of his claims, and

compliance with the directives in this Order. 

Conclusion

Gonzalez is ordered to amend his federal habeas petition

within thirty days of the date of this Order to identify each of

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the claims he intends to present in this court, including the

federal nature of each claim. Gonzalez is further ordered to

commence state court action on his motion for a new trial within

thirty days of the date of this Order. Gonzalez must then notify

this Court within ten days of his state court filing that the

state court motion for a new trial has been filed and that the

habeas claims before this Court, including the federal nature of

those claims, have been presented in that motion. Gonzalez must

include a copy of his state court filing in this Court with that

notification. Once these documents and pleadings are received,

Gonzalez’s federal habeas petition will be stayed to allow him to

complete exhaustion of his claims in the state courts.

Once the federal habeas petition is stayed, Gonzalez is

ordered to contact this Court every 90 days while seeking

exhaustion of his claims in the state courts, beginning 90 days

from the date of the Order staying his petition, to notify the

Court that the matter is still pending in the state courts and

has not been decided, or to report any change in the status of

the state court proceedings. When the New Hampshire Supreme

Court has ruled on each of his claims, and the claims are thus

exhausted, Gonzalez must, within 30 days of being notified of the

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2Gonzalez would be well-advised to submit all of the

relevant pleadings, notices of appeal, court decisions and other

documents relevant to each of his claims demonstrating that the

claims and the federal nature of the claims were in fact

presented to the state courts as alleged in his amended petition

notifying this Court that exhaustion has been completed.

3If 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

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

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Supreme Court’s final ruling, notify this Court of that ruling,

submit to this Court the New Hampshire Supreme Court’s ruling, as

well as all briefs or other pleadings filed in that court, and

file a request that this Court further consider his petition.2 

Failure to amend his federal habeas petition and to notify

the Court of his actions in the state court, as directed above,

may result in the dismissal of the petition for failing to

demonstrate exhaustion of the claims presented.3

SO ORDERED.

__________________________________

James R. Muirhead

United States Magistrate Judge

Date: July 18, 2005 

cc: Odalis Gonzalez, pro se

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