1The pleading filed by Pelletier was entitled “Objection to

Report & Recommendation and Motion to Reconsider.” I will

construe the pleading as a properly filed objection to my January

30, 2006 Report and Recommendation (document no. 6).

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Steven Pelletier

v. 05-cv-417-SM

Bruce Cattell, Warden,

New Hampshire State Prison

O R D E R

Steven Pelletier has filed a petition for a writ of habeas

corpus (document no. 1). After this matter initially came before

me for preliminary review, I recommended to the Chief Judge that

the petition be dismissed as untimely (document no. 6). 

Pelletier filed an objection to my Report and Recommendation,

arguing that this Court had miscalculated the limitations period

in his case (document no. 7).1 I find that the objection has

merit. For the reasons stated in petitioner’s objection, I find

that Pelletier’s petition is timely, and may proceed to

preliminary review at this time. As discussed herein, I find

that the petitioner has not yet demonstrated exhaustion of all of

Case 1:05-cv-00417-SM Document 8 Filed 03/28/06 Page 1 of 14
2

the claims raised in his petition, and I order him to amend his

petition. 

Standard of Review

Under this Court’s local rules, when an incarcerated

petitioner 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).

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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3

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

Petitioner Steven Pelletier was convicted of five counts of

felony sexual assault following a jury trial in Superior Court. 

After his trial, Pelletier took a direct appeal of his conviction

to the New Hampshire Supreme Court (“NHSC”) raising three claims:

1. Pelletier’s marital privilege had been violated by the 

admission of his wife’s testimony regarding Pelletier’s

sexual practices;

2. The expert testimony presented at trial was improperly 

admitted in evidence in that Pelletier’s counsel was 

surprised by the scope of the testimony;

3. The trial court admitted improper hearsay testimony 

from a third party regarding the prosecutrix’s 

allegations against Pelletier.

The NHSC affirmed Pelletier’s conviction. See State v.

Pelletier, 149 N.H. 243 (2003). 

Pelletier subsequently filed a motion for a new trial,

raising a number of issues:

1. The prosecutor engaged in misconduct by vouching for 

the prosecutrix’s credibility and the truth of her 

testimony in his closing argument;

Case 1:05-cv-00417-SM Document 8 Filed 03/28/06 Page 3 of 14
4

2. The prosecutor engaged in misconduct by attacking the 

ethics of defense counsel in his closing argument; 

3. The prosecutor engaged in misconduct by telling the 

jury his personal opinion of the evidence in his 

closing argument;

4. Trial counsel was ineffective in that he failed to 

obtain a proper severance of the charges;

5. Trial counsel was ineffective in that he failed to 

acquire a mistrial after twenty-seven of the thirty-two

indictments were dismissed at the close of the state’s 

case;

6. The trial court abused its discretion in failing to 

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

7. The trial court failed to conduct a proper colloquy 

with Pelletier before finding that Pelletier had waived

his constitutional rights to have evidence of uncharged

crimes excluded from trial;

8. Appellate counsel was ineffective because he failed to 

raise or brief proper appellate issues that had been 

preserved at trial. 

The motion for a new trial was denied on July 18, 2005. 

Pelletier filed a notice of appeal in the NHSC, and that Court

declined the appeal on October 28, 2005. 

On November 15, 2005, Pelletier filed a motion in the trial

court seeking to correct his sentence on the grounds that New

Hampshire has no statutory or state constitutional authority to

impose consecutive sentences. Pelletier concedes that this claim

has not yet been exhausted in the state courts. 

Case 1:05-cv-00417-SM Document 8 Filed 03/28/06 Page 4 of 14
2The claims as identified herein will be considered to be

the claims raised in Pelletier’s petition for all purposes. If

Pelletier disagrees with any of the claims as identified, he must

do so by proper motion to amend his petition.

5

On November 18, 2005, Pelletier filed the instant petition,

which, liberally construed, raises the following claims:2

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;

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

his right not to be tried by evidence of uncharged bad 

acts;

Case 1:05-cv-00417-SM Document 8 Filed 03/28/06 Page 5 of 14
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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;

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.

Discussion

Under 28 U.S.C. § 2254, the federal courts are authorized to

“entertain an application for a writ of habeas corpus in behalf

of a person in custody pursuant to a judgment of a state court

only on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.” To be

Case 1:05-cv-00417-SM Document 8 Filed 03/28/06 Page 6 of 14
7

eligible for habeas relief, Pelletier 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. § 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). 

Pelletier satisfies the first eligibility requirement as he is

currently serving his sentence and is thus in custody. However,

at this time, the petition does not demonstrate that Pelletier

has fully exhausted his state remedies. Nor has Pelletier

alleged any facts to suggest that effective state remedies are

unavailable to him.

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.

Maloney, 853 F.2d 40, 42 (1st Cir. 1988), cert. denied, Maloney

v. Lanigan, 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

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8

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). “[T]he exhaustion principle

holds, in general, that a federal court will not entertain an

application for habeas relief unless the petitioner first has

fully exhausted his state remedies in respect to each and every

claim contained within the application.” Adelson v. DiPaola, 131

F.3d 259, 261 (1st Cir. 1997) (emphasis added). Because

Pelletier’s petition contains claims that are currently

unexhausted, as discussed herein, were Pelletier to press his

petition without first exhausting all of the claims contained

therein, I would have to recommend dismissal of the entire

petition. See Novaczyk v. Warden, N.H. State Prison, 299 F.3d

69, 75 (1st Cir. 2002) (citing Rose v. Lundy, 455 U.S. 509, 513-

21 (1982)).

Pelletier has not yet exhausted a number of his claims in

the state courts. Pelletier himself admits that his sentencing

claim (claim 8 as numbered above) was not exhausted prior to

filing his petition in this Court. Nor has Pelletier

demonstrated that he has presented claims 1a, 1c, 2a, 6b, 7 and

Case 1:05-cv-00417-SM Document 8 Filed 03/28/06 Page 8 of 14
3 Based on the pleadings that Pelletier attached to his

petition, it appears that he has presented some of his claims,

including the federal nature of those claims, to the NHSC,

specifically: his claim that the prosecutor attacked the ethics

of defense counsel in his summation (claim 1b), that his trial

counsel was ineffective for failing to obtain a mistrial at the

close of the state’s case (claim 2b), that the trial judge failed

to grant a mistrial (claim 3), that the trial judge failed to

conduct a constitutionally adequate colloquy (claim 4), that the

trial court violated Pelletier’s marital privilege (claim 5), and

that the trial judge allowed an expert witness to testify outside

her area of expertise (claim 6a). 

9

8, including the specific violation of federal rights encompassed

in the claim, to the state’s highest court.3 Because such a

showing is necessary to demonstrate exhaustion, I find that

Pelletier has not yet demonstrated exhaustion of state court

remedies for all of the claims raised in his petition.

Rather than dismiss the petition entirely for failing to

demonstrate exhaustion of each claim, I will direct Pelletier to

amend his petition to include, for each claim presented in his

petition, documentation, including motions, petitions, notices of

appeal, briefs, or other pleadings showing that the issues

presented here, including the precise federal nature of the

issues, were in fact presented to the state courts for

consideration. See Smith v. Digmon, 434 U.S. 332, 333 (1978)

(listing documents which would enable a federal court to

Case 1:05-cv-00417-SM Document 8 Filed 03/28/06 Page 9 of 14
10

determine whether the grounds supporting the habeas petition had

been presented for review in the state courts). Because it

appears Pelletier will have to return to the state courts to

fully present these claims in those courts before he can make the

required amendment to his current petition, I will authorize a

stay in these proceedings to allow Pelletier to exhaust his

claims and amend his petition. See Rhines v. Weber, 125 S.Ct.

1528, 1535 (2005) (a district court should stay a mixed petition

containing both exhausted and unexhausted claims if the

petitioner “had 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.”); see also Duncan v. Walker, 533 U.S. 167,

182-83 (2001) (Stevens, J., concurring) (“[T]here 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

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,

Case 1:05-cv-00417-SM Document 8 Filed 03/28/06 Page 10 of 14
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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”). 

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 all of his claims, he has

demonstrated a substantial effort to exhaust some of his claims

in state court and, being a pro se litigant, it stands to reason

that Pelletier may simply not have realized the necessity of

raising each ground presented here in the state courts within the

limitations period. 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). It may also be the case that Pelletier has

raised some or all of his federal claims in state court pleadings

that have not yet been brought to the attention of this Court.

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I further find that 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 and I do not find Pelletier’s claims to

clearly lack merit on their face. Rhines, 125 S.Ct. at 1535. 

Under these circumstances, the proper course of action is to stay

this petition pending the exhaustion of all of the claims and

compliance with this Order. 

It should be noted that Pelletier has the option of

foregoing his unexhausted claims and requesting that the Court

proceed promptly with consideration of his exhausted claims. 

Pelletier should be advised that if he does, however, he will

likely waive ever having his other issues considered by this

Court 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), cert. denied, 523 U.S. 1123

(1998).

Conclusion

Pelletier is ordered to amend his petition within thirty

days of the date of this Order to notify this Court as to whether

(1) he has already exhausted all of his claims and to demonstrate

Case 1:05-cv-00417-SM Document 8 Filed 03/28/06 Page 12 of 14
13

exhaustion here, or (2) he intends to return to the state court

to complete exhaustion prior to amending his petition to

demonstrate exhaustion here, or (3) that he chooses to forego his

unexhausted claims and proceed only on his three exhausted

claims. If Pelletier chooses to exhaust his unexhausted claims

prior to filing his amended petition, he must commence state

court action to exhaust all of the unexhausted claims within

thirty days of the date of this Order. 

If Pelletier 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 Pelletier’s

unexhausted claims. Once the petition is stayed to allow

Pelletier to exhaust his claims, Pelletier is ordered to contact

this Court every 90 days while seeking exhaustion of his claims,

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

NHSC has ruled on his claims, and the claims are thus exhausted,

Pelletier must, within 30 days of being notified of the Supreme

Court’s final ruling, notify this Court of that ruling, submit to

Case 1:05-cv-00417-SM Document 8 Filed 03/28/06 Page 13 of 14
4Pelletier 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.

5If 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

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

14

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.4 Failure

to amend his petition to notify the Court of his intentions as to

how he wishes to proceed with his unexhausted claims, failure to

proceed promptly in the state court if Pelletier chooses to

exhaust his unexhausted claims, 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.5

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: March 28, 2006

cc: Steven Pelletier, pro se

Case 1:05-cv-00417-SM Document 8 Filed 03/28/06 Page 14 of 14