UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Miguel Ortiz

v. Civil No. 05-cv-350-SM

Larry Blaisdell, Warden,

Northern New Hampshire

Correctional Facility

O R D E R

Before the Court is Miguel Ortiz’s petition for a writ of

habeas corpus filed pursuant to 28 U.S.C. § 2254 (document no.

1). Ortiz also seeks to amend his petition (document no. 5) and

to add two new claims to his petition (document no. 9). The

petition originally came 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). On

November 8, 2005, I issued an Order (document no. 3) directing

Ortiz to amend his initial petition to demonstrate exhaustion or

to forego his unexhausted claims. In that Order, I allowed Ortiz

Case 1:05-cv-00350-JL Document 13 Filed 01/26/07 Page 1 of 10
2

to request a stay of this matter so that he might return to the

state courts to exhaust those claims which I found had not been

exhausted at the time of his initial filing. Ortiz opted to

obtain a stay of his petition in this Court and to return to the

state courts to exhaust his federal claims.

The Claims in Ortiz’s Original Petition

Ortiz, in his original petition, asserted thirteen claims

alleging that his conviction and sentence had violated his

federal constitutional rights. I identified those thirteen

claims as follows:

1. The trial court violated Ortiz’s Fourteenth Amendment 

due process rights when it excluded the relevant 

exculpatory testimony of a defense witness;

2. The trial court violated Ortiz’s Fourteenth Amendment 

due process rights when it gave the jury an erroneous 

reasonable doubt instruction;

3. Ortiz’s conviction was obtained by prosecutorial 

misconduct when the prosecutor committed fraud on the 

tribunal by presenting evidence from an indictment that

had been nol prossed in support of a separate charge;

4. The conviction was obtained by prosecutorial misconduct

when the prosecutor committed fraud on the tribunal by 

entering doctored documents in evidence;

5. Ortiz received ineffective assistance of trial counsel,

in violation of his Sixth Amendment right to counsel 

and his Fourteenth Amendment right to due process, when

trial counsel failed to file a motion to have doctored 

documents excluded from evidence;

Case 1:05-cv-00350-JL Document 13 Filed 01/26/07 Page 2 of 10
3

6. Ortiz received ineffective assistance of trial counsel,

in violation of his Sixth Amendment right to counsel 

and his Fourteenth Amendment right to due process, when

trial counsel failed to advocate zealously on Ortiz’s 

behalf by presenting an entrapment defense and 

admitting that Ortiz had committed the acts charged;

7. Ortiz received ineffective assistance of trial counsel,

in violation of his Sixth Amendment right to counsel 

and his Fourteenth Amendment right to due process, when

his trial counsel failed to investigate the case;

 8. Ortiz received ineffective assistance of trial counsel,

in violation of his Sixth Amendment right to counsel 

and his Fourteenth Amendment right to due process, when

trial counsel did not meaningfully challenge the 

prosecution case;

9. Ortiz received ineffective assistance of trial counsel,

in violation of his Sixth Amendment right to counsel 

and his Fourteenth Amendment right to due process, when

trial counsel did not adequately cross-examine state’s 

witnesses;

10. Ortiz received ineffective assistance of trial counsel,

in violation of his Sixth Amendment right to counsel 

and his Fourteenth Amendment right to due process, when

trial counsel failed to file a motion to dismiss the 

charges against Ortiz on the basis of variations in 

testimonial and documentary evidence proffered by 

prosecution witnesses;

11. Ortiz received ineffective assistance of trial counsel,

in violation of his Sixth Amendment right to counsel 

and his Fourteenth Amendment right to due process, when

trial counsel failed to prevent a previously dismissed 

indictment from being presented to the judge in 

furtherance of the state’s argument for sentence 

enhancement;

12. Ortiz received ineffective assistance of trial counsel,

in violation of his Sixth Amendment right to counsel 

Case 1:05-cv-00350-JL Document 13 Filed 01/26/07 Page 3 of 10
4

and his Fourteenth Amendment right to due process, when

his trial counsel failed to raise and preserve 

meritorious issues for appeal;

13. Ortiz received ineffective assistance of appellate 

counsel, in violation of his Sixth Amendment right to 

counsel and his Fourteenth Amendment right to due 

process, when his appellate counsel failed to prevent 

the state from arguing that Ortiz did not receive 

an enhanced sentence. 

I initially found in my November 8, 2005 Order, that three

of these claims, based on federal constitutional violations,

numbered 1, 2 and 11 above, had been exhausted as the claims,

including the federal nature of the claims, had been presented to

the New Hampshire Supreme Court in the direct appeal of Ortiz’s

criminal conviction. I further found that Ortiz had not

demonstrated exhaustion of any of the other ten claims raised,

and I directed Ortiz to amend his petition to demonstrate

exhaustion of all of the claims raised.

Ortiz, after obtaining a stay of this matter, returned to

the state courts and filed a habeas petition in the New Hampshire

Superior Court, seeking relief on the grounds raised in the

unexhausted claims in his habeas petition before this Court, as

well as on additional grounds. Ortiz, in his state habeas

action, included the federal violations alleged in the claims

before this Court. Ortiz’s state habeas petition was denied. 

Case 1:05-cv-00350-JL Document 13 Filed 01/26/07 Page 4 of 10
5

Ortiz then filed a notice of appeal in the New Hampshire Supreme

Court. The New Hampshire Supreme Court declined to accept the

matter for appeal. 

Ortiz has not submitted the notice of appeal that was filed

in the New Hampshire Supreme Court to this Court. Ortiz has

provided this Court with a copy of the habeas petition submitted

to the state Superior Court. That petition sets forth the

federal constitutional violations that Ortiz claims occurred as a

result of his conviction and sentence. However, Ortiz, by not

submitting the notice of appeal or any of the documents that may

have been appended to the notice of appeal, has not yet

demonstrated that he has given the state’s highest appellate

court, the New Hampshire Supreme Court, the opportunity to

consider and rule on the federal nature of the claims raised. 

Accordingly, I again direct Ortiz to amend his petition to

demonstrate that the federal nature of his claims, raised in the

state habeas petition filed in the Superior Court, were actually

presented to the New Hampshire Supreme Court for consideration.

Motion to Add Claims

Ortiz seeks to add two additional claims to his petition at

this time, as follows:

Case 1:05-cv-00350-JL Document 13 Filed 01/26/07 Page 5 of 10
1I will number the two proposed additional claims 14 and 15

so as to avoid confusing these claims with Ortiz’s previously

filed claims.

2At this juncture, I make no finding as to the timeliness of

the additional claim.

6

14.1 Ortiz received the ineffective assistance of appellate 

counsel because appellate counsel failed to raise and 

litigate the issue of the ineffective assistance of 

Ortiz’s trial counsel before the state courts, in 

violation of Ortiz’s Sixth Amendment right to the 

effective assistance of both trial and appellate 

counsel and his Fourteenth Amendment right to due 

process; and

15. Ortiz received the ineffective assistance of trial 

counsel when trial counsel failed to move to suppress 

incomplete or doctored documentation from evidence, in 

violation of Ortiz’s rights under the Fourth, Sixth and

Fourteenth Amendments.

I will grant the motion to add claims as to claim 14, for

purposes of preliminary review.2 However, this claim must meet

the exhaustion requirements of all habeas claims, as previously

explained in detail in my November 8, 2005 Order. As to claim

14, I find that Ortiz has not demonstrated that he has ever

raised this claim in any state court proceeding. Accordingly, I

find that Ortiz has failed to demonstrate exhaustion of claim 14. 

Therefore, I will give Ortiz the opportunity to amend his

petition to demonstrate that claim 14 was exhausted in the state

courts. Alternatively, Ortiz may elect to forego this claim if

Case 1:05-cv-00350-JL Document 13 Filed 01/26/07 Page 6 of 10
3I again caution Ortiz that foregoing this claim at this

juncture will likely result in his not being able to litigate

this claim in the future due to the prohibition against second or

successive habeas petitions. See 28 U.S.C. § 2244; Pratt v.

United States, 129 F.3d 54, 56-58 (1st Cir. 1997).

7

it is, in fact, unexhausted3 in order to allow claims 1-13 to

proceed promptly upon demonstration that they have all been

exhausted, or, I will allow Ortiz to seek to exhaust claim 14 in

the state courts. If Ortiz seeks to return again to the state

courts to exhaust this unexhausted claim, I will again stay this

petition to allow him to do so. Ortiz is ordered to advise this

Court within thirty days of the date of this Order as to his

intentions regarding claim 14. 

As to claim 15, Ortiz alleges that his Fourth Amendment

rights were violated by his trial counsel’s failure to seek

suppression of certain documents. Ortiz refers, however, to

documentary evidence created by the police in his case, rather

than evidence seized from his person or property. Accordingly, I

find that Ortiz’s characterization of this issue as a violation

of the Fourth Amendment, which protects Ortiz’s right not to have

his person or property unreasonably seized by the government, is

misplaced. Ortiz’s claim is more properly asserted as a due

process violation under the Fourteenth Amendment and a denial of

Case 1:05-cv-00350-JL Document 13 Filed 01/26/07 Page 7 of 10
8

the effective assistance of counsel under the Sixth Amendment, in

that his attorney allowed inculpatory evidence to be entered at

trial that was not sufficiently reliable to be relevant. As

such, I find that Ortiz has already raised this claim as claim 5

in his original petition, and I therefore deny his motion to add

claim 15, as it is duplicative of claim 5. 

Conclusion

For the reasons stated herein, I direct Ortiz to amend his

petition within thirty days of the date of this Order as follows:

1. Ortiz is to file his notice of appeal seeking to appeal

the denial of his state habeas petition, including any

attachments or appendices to the notice of appeal, as well as any

other pleading filed in connection with that appeal that might be

relevant to exhaustion of the claims contained therein;

2. Ortiz is to notify this Court as to whether he intends,

with regard to claim 14, to:

A. Voluntarily forego this claim as unexhausted; or

B. Amend his complaint to demonstrate that this claim

has in fact been exhausted, and to file an amendment to his

petition demonstrating exhaustion; or

Case 1:05-cv-00350-JL Document 13 Filed 01/26/07 Page 8 of 10
9

C. Seek a further stay of this petition while he

returns to the state courts to exhaust this currently unexhausted

claim. If Ortiz chooses to exhaust his unexhausted claim in the

state court prior to pursuing that claim in this Court, he must

commence state court action to exhaust the unexhausted claims

within thirty days of the date of this Order. 

If Ortiz notifies the Court that he intends to commence a

state court action to complete exhaustion of his claims, the

petition will be stayed pending exhaustion of Ortiz’s unexhausted

claim. Once the petition is stayed to allow Ortiz to exhaust his

claim, Ortiz is ordered to contact this Court every 90 days while

seeking exhaustion of his claim, 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

the claim, and the claim is thus exhausted, Ortiz must, within 30

days of being notified of the 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 notices of

appeal, briefs or other pleadings filed in that court regarding 

Case 1:05-cv-00350-JL Document 13 Filed 01/26/07 Page 9 of 10
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 Ortiz’s

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

10

the claim, and file a request that this Court further consider

his petition. 

Failure to amend his petition as directed herein, failure to

notify the Court of his intentions as to how he wishes to proceed

with his unexhausted claim, failure to proceed promptly in the

state court if Ortiz chooses to exhaust his unexhausted claim, or

failure to comply with the notification requirements of this

Order, may result in the dismissal of the petition for failing to

demonstrate exhaustion of all of the claims presented.4

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: January 26, 2007

cc: Miguel Ortiz, pro se

Case 1:05-cv-00350-JL Document 13 Filed 01/26/07 Page 10 of 10