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

REPORT AND RECOMMENDATION

Before the Court is Steven Pelletier’s most recent pleading

entitled “Response Complying with Order of March 28, 2006"

(document no. 9). As directed by this Court in its March 28,

2006 Order, Pelletier has amended his habeas petition in an

effort to demonstrate that several claims, for which I have

previously found Pelletier did not demonstrate exhaustion,

(numbered in my March 28 Order as 1a, 1c, 2a, 6b, and 7) are, in

fact exhausted. Pelletier has attached a number of his state

court pleadings to his response in support of his assertion that

his claims have been exhausted. Further, Pelletier has indicated

his intention to fully exhaust one of his claims, (number 8 in my

March 28 Order). Pelletier states that, to the extent he has

still failed to demonstrate exhaustion for any of his other

claims, he will waive those claims. 

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1I note that at this time it appears that the federal nature

of claim 8 has been raised in petitioner’s brief before the state

Supreme Court. Accordingly, when exhaustion is completed on this

claim, if petitioner is unsuccessful in the state courts, this

claim will be able to go forward with the other claims deemed

exhausted herein.

2

I find that Pelletier has now demonstrated that he has

exhausted claim 1c, 2a, and 6b in his pleadings before the state

Supreme Court. However, I find that as to claims 1a and 7,

Pelletier has failed to demonstrate exhaustion. Pelletier’s

filings indicate that the federal nature of claims 1a and 7 was

not raised in the state courts. The closest Pelletier comes is

referring to the issues as “Constitutional in nature” in his

state court pleadings. I find that this is insufficient to

fairly present a claim that his rights under federal law were

violated to the state courts for consideration. 

In accordance with his stated intent, I find that Pelletier

waives claims 1a and 7. I find that at this time Pelletier has

demonstrated exhaustion for claims 1b, 1c, 2a, 2b, 3, 4, 5, 6a,

and 6b. Pelletier asserts that claim 8 is still in the process

of being exhausted, that he does not wish to waive that claim,

and that he intends to continue to comply with the notice

requirements of my March 28 Order.1 Accordingly, I recommend

that claims 1a and 7 be dismissed as they have been waived by the

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3

petitioner. I further recommend that the stay and previously

ordered notice requirements be continued in this matter pending

exhaustion of claim 8.

Any objections to this Report and Recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

Law Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992); United

States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: April 12, 2006

cc: Steven Pelletier, pro se

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