1I initially recommended that this matter be dismissed as

untimely on January 27, 2006 (document no. 6). I reconsidered my

recommendation after Pelletier filed an objection indicating that

his petition was, in fact, timely filed (document no. 7).

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Steven Pelletier

v. Civil No. 05-cv-417-SM

Bruce Cattell, Warden,

New Hampshire State Prison

O R D E R

Steven Pelletier filed a petition for a writ of habeas

corpus (document no. 1) on November 22, 2005. This matter

initially came before me for preliminary review on November 28,

2005. At the time he filed his petition, Pelletier had not

completed exhaustion of each of the claims contained in his

petition. On March 28, 2006, I directed Pelletier to return to

the state courts to exhaust his claims and then to amend his

petition to demonstrate exhaustion or, alternatively, to elect to

forego his unexhausted claims (document no. 8).1 The petition

was stayed while exhaustion was completed (document nos. 8 & 10). 

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2

Since the stay, Pelletier has waived two of his initial claims,

numbered in my March 28, 2006 order, and below, as 1a and 7. 

Pelletier has now demonstrated exhaustion of the other claims in

his petition. The claims raised, as identified in my March 28,

2006 Order, are as follows:

1. The conviction was obtained in violation of Pelletier’s

Fourteenth Amendment Due Process rights and Sixth 

Amendment right to a fair trial because the prosecutor 

engaged in misconduct when, in his summation, he:

a. Vouched for the credibility of the prosecutrix 

(WAIVED);

b. Attacked defense counsel’s ethics; and

c. Expressed his personal opinion of the evidence;

2. The conviction violates Pelletier’s Fourteenth 

Amendment Due Process rights and Sixth Amendment right 

to the effective assistance of counsel because his 

trial counsel:

a. Failed to have the charges against him severed for

separate trials; and

b. Failed to obtain at the close of the state’s case;

3. The conviction violates Pelletier’s Fourteenth 

Amendment Due Process rights and Sixth Amendment right 

to a fair trial because the trial judge failed to grant

a mistrial at the close of the state’s case;

4. The conviction violates Pelletier’s Fourteenth 

Amendment Due Process rights and Sixth Amendment right 

to a fair trial because the trial judge failed to 

conduct a proper colloquy before depriving Pelletier of 

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his right not to be tried by evidence of uncharged bad 

acts;

5. The conviction violates Pelletier’s Fourteenth 

Amendment Due Process rights and Sixth Amendment right 

to a fair trial because the trial judge violated 

Pelletier’s marital privilege by allowing Pelletier’s 

wife to testify concerning their sexual relationship;

 6. The conviction violates Pelletier’s Fourteenth 

Amendment Due Process rights and Sixth Amendment rights

to a fair trial and the effective assistance of counsel

because the trial judge improperly allowed an expert 

witness:

a. to testify outside of her area of expertise; and

b. to testify to matters defense counsel had not 

previously been made aware of.

7. The conviction violates Pelletier’s Fourteenth 

Amendment Due Process rights and Sixth Amendment right 

to a fair trial because the trial judge allowed thirdparty hearsay testimony regarding the prosecutrix’s 

allegations into evidence (WAIVED);

8. The sentence violates Pelletier’s Fourteenth Amendment 

Due Process rights and Eighth Amendment right against 

cruel and unusual punishment because the trial judge 

sentenced Pelletier to consecutive sentences when he 

possessed neither statutory nor constitutional 

authority to do so.

As indicated above, Pelletier has now demonstrated that each

of the claims raised, with the exception of 1a and 7, which have

been waived, has been exhausted in the state courts. 

Accordingly, and without comment on the merits of the claims, I

direct that the petition be served on the respondent. The

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petition shall be served upon the New Hampshire State Prison. 

The Clerk’s office is directed to serve the New Hampshire Office

of the Attorney General, as provided in the Agreement on

Acceptance of Service copies of this Order and the original

habeas petition (document no. 1), previous rulings of the Court

in this matter (document nos. 6, 8, 10, 11, 16 ) and Pelletier’s

previous filings in this matter (document nos. 7, 9, 12, 13, 14,

17). The respondent is directed to answer or otherwise plead

within thirty (30) days of the date of this Order. The answer

shall comply with the requirements of § 2254 Rule 5 (setting

forth contents of the answer). 

Upon receipt of the response, the Court will determine

whether a hearing is warranted. See § 2254 Rule 8 (providing

circumstances under which a hearing is appropriate). 

Petitioner is referred to Fed. R. Civ. P. 5, which requires

that every pleading, written motion, notice, and similar paper,

after the petition, shall be served on all parties. Such service 

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is to be made by mailing the material to the parties’

attorney(s). 

SO ORDERED. 

_______________________________

James R. Muirhead

United States Magistrate Judge

Date: November 6, 2007

cc: Steven Pelletier, pro se

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