UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Moses Yen

v. Civil No. 06-cv-143-SM

State of New Hampshire

REPORT AND RECOMMENDATION

Moses Yen has filed a petition for a writ of habeas corpus

(document no. 1) pursuant to 28 U.S.C. § 2254. The matter is

before me for preliminary review. See Rule 4 of the Rules

Governing § 2254 Proceedings and United States District Court for

the District of New Hampshire Local Rule (“LR”) 4.3(d)

(authorizing the magistrate judge to preliminary review pro se

pleadings). As discussed below, I recommend that the petition be

dismissed for failure to exhaust state remedies.

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

to prepare a report and recommendation advising the district 

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judge whether the action, 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 petitioner 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

Moses Yen was convicted and sentenced on March 10, 2005 of a

misdemeanor charge of operating a motor vehicle after his

driver’s license had been suspended. Yen pled nolo contendere

and was sentenced to eleven months and twenty-nine days in the

house of correction. Although Yen’s complaint is difficult to

understand, he appears to allege that he was released from

incarceration in July of 2005 and placed on probation. Then, in

February of 2006, Yen states that he was arrested on a probation

violation and is currently being held at the Hillsborough County

House of Correction. 

It is unclear exactly what constitutional rights Yen claims

have been violated by his current conviction and custody status,

or how such rights were violated. Yen alludes to a number of

constitutional rights that he seems to allege were violated

without providing any comprehensible discussion of the factual

background for any of the alleged violations. The rights he

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mentions are: his right not to be subjected to double jeopardy,

ineffective assistance of counsel, his right against selfincrimination and the nonspecific assertion that the charge

against him and current custody are unlawful.

Yen’s petition makes clear, however, that he did not raise

any of these issues in the state’s appellate courts. While Yen

checked the “Yes” box on his petition indicating that he appealed

the judgment of conviction against him, he goes on to state that

his trial attorney failed to pursue any direct appeal on his

behalf, and Yen denies taking any other post-conviction action in

the state courts. It appears likely that Yen was referring to

his petition in this Court when he answered “yes” to the question

regarding whether he had taken an appeal of the judgment of his

conviction. 

Discussion

To be eligible for habeas relief, Yen 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.

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Super. Ct. Dep’t of Trial Ct. of Mass., 663 F.2d 355, 358-59 (1st

Cir. 1981). Yen satisfies the first requirement as he is

currently in custody serving time for the conviction and sentence

he is challenging. However, 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.

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).

By his own admission, Yen has not exhausted his claims in

the state court prior to raising them in this Court. 

Accordingly, I recommend that the petition be dismissed without 

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1I caution Yen that any future filing regarding this matter

must clearly and concisely state the nature of the claims he is

raising, including the factual predicate of the claim and the

federal right allegedly violated. 

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prejudice to refiling after Yen exhausts his claim in the state

courts.1 

Conclusion

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: May 26, 2006

cc: Moses Yen, pro se

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