1I liberally construe the petition to name the Commissioner

of the New Hampshire Department of Corrections as the respondent.

See Habeas Rule 2 (requiring the state officer who has custody of

the petitioner to be named as the respondent in habeas corpus

actions brought pursuant to 28 U.S.C. § 2254).

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Harold E. Shaneyfelt, Jr.

v. Civil No. 06-cv-263-PB

State of New Hampshire1

O R D E R

Pro se petitioner Harold E. Shaneyfelt, Jr. has filed a

petition for a writ of habeas corpus, pursuant to 28 U.S.C. §

2254, challenging his New Hampshire state court conviction and

confinement (document no. 1). The petition is before me for

preliminary review. See Rule 4 of the Rules Governing § 2254

Proceedings (“Habeas Rules”) (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 (“LR”) 4.3(d)(2) (authorizing the magistrate judge to

preliminarily review pro se pleadings). 

For the reasons stated below, I find that the petition does

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2Shaneyfelt alleges that he was convicted of three counts

under N.H. Rev. Stat. Ann. § 632-A:3, III.

2

not at this time make a facially sufficient showing that

Shaneyfelt is entitled to relief. I therefore order him to amend

the petition to demonstrate that each of the claims therein has

been properly exhausted before I will direct that the petition be

answered.

Background

Convicted on June 23, 2000 of three counts of felonious

sexual assault2 by the New Hampshire Superior Court (Rockingham

County), Shaneyfelt was sentenced to a term of imprisonment. He

is currently incarcerated at the Taylor Correctional Institution

in Perry, Florida. Following his conviction, Shaneyfelt filed a

direct appeal with the New Hampshire Supreme Court (“NHSC”). 

Although he has not provided this Court with a copy of the

appeal, he allegedly raised the following two claims: (1) trial

court error in permitting an amended indictment; and (2)

erroneous jury instruction. The NHSC affirmed his conviction on

October 25, 2002.

Shaneyfelt filed a motion to correct illegal sentence with

the New Hampshire Superior Court (Rockingham County), which was

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3

denied on May, 15, 2003. He also filed in the superior court a

petition for post-conviction relief in which he raised claims of

ineffective assistance of trial counsel based on counsel’s (1)

failure to object, including the failure to object to

prosecutorial misconduct, (2) solicitation of incriminating

testimony, (3) failure to permit Shaneyfelt to participate

actively in jury selection and (4) failure to introduce polygraph

test results. His petition was denied on December 17, 2005. He

subsequently filed a petition to remedy a pleading defect in the

first petition, which was denied on June 30, 2006. Shaneyfelt

has not provided this Court with copies of the above-mentioned

state court pleadings. 

In the instant petition, he alleges four grounds for federal

habeas corpus relief:

1. trial court error in permitting the state to amend

the indictment on the day of trial, in violation

of federal law and Stirone v. United States, 361

U.S. 212, 217 (1960)(holding that a court cannot

permit a defendant to be tried on charges that are

not made in the indictment against him)(citations

omitted) (Ground 1);

2. ineffective assistance of trial counsel, in

violation of federal law and Strickland v.

Washington, 466 U.S. 668, 687-88 (1984)(holding

that the Sixth Amendment guarantees criminal

defendants the right to effective assistance of

counsel at trial) when trial counsel:

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3See Walton v. City of Manchester, 140 N.H. 403, 406, 666

A.2d 978, 980 (1995) (“A ‘golden rule’ argument is made when

counsel urges jurors to put themselves in a particular party’s

place, or into a particular party’s shoes.”)(citations omitted). 

See also Forrestal v. Magendantz, 848 F.2d 303, 309 (1st Cir.

1988)(holding that the “Golden Rule argument has been universally

condemned because it encourages the jury to depart from

neutrality and to decide the case on the basis of personal

interest and bias rather than on the evidence.”).

4

a. failed to object to the state’s violation of

the “Golden Rule”3 (Ground 2);

b. failed to object to the prosecutor’s improper

expression of personal belief in Shaneyfelt’s

guilt during closing arguments (Ground 3);

and

c. failed to permit Shaneyfelt to participate

actively in jury selection (Ground 4).

Discussion

I. Custody and Exhaustion

To be eligible for habeas relief, Shaneyfelt must show that

he is in custody and has exhausted all state court remedies (or

that he falls within a narrow category of cases in which

exhaustion is not required, such as the absence of an available

or effective state corrective process). See 28 U.S.C. § 2254(a)

& (b); see also Duncan v. Henry, 513 U.S. 364, 365 (1995). He

satisfies the first requirement as he is currently incarcerated

at the Taylor Correctional Institution and thus is in custody. 

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5

However, Shaneyfelt fails to satisfy the second requirement

because the petition does not demonstrate that he has fully

exhausted his state remedies with regard to each claim. Nor has

he alleged any facts to suggest that effective state court

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, 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 Baldwin v.

Reese, 541 U.S. 27, 29 (2004) (citing Duncan, 513 U.S. at 365-66

(requiring petitioner to “fairly present” his claim in the

appropriate state courts, including a state supreme court with

powers of discretionary review, thereby alerting that court to

the federal nature of the claim)). “[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

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6

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

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

In the instant petition, Shaneyfelt raises four grounds for 

federal habeas corpus relief. While Ground One is similar to the

claim raised on appeal to the NHSC, there is no indication that

he presented the federal nature of the claim to the NHSC. As to

the remaining grounds in the petition, there is no indication

that Shaneyfelt presented the claims or the federal nature of the

claims to the NHSC for review. Accordingly, he has failed to

demonstrate exhaustion of state remedies as to the four claims

raised in his federal petition.

To demonstrate exhaustion of his claims, Shaneyfelt must

provide this Court with copies of any motions, petitions, notices

of appeal, briefs and orders and/or final judgments pertaining to

his state court proceedings. See Smith v. Digmon, 434 U.S. 332,

333 (1978) (discussing documents which would enable a federal

court to determine whether the grounds supporting the habeas

petition had been presented for review in the state courts). In

particular, he should provide this Court with a copy of the

notice of appeal filed with the NHSC. He may need to return to

the state courts to fully present his unexhausted claims and the

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federal nature of each claim before he can make the required

amendment to his federal petition.

II. Stay

The Supreme Court has held that a district court should stay

a habeas corpus petition if the petitioner has good cause for his

failure to exhaust, his unexhausted claims are potentially

meritorious, and there is no indication that he engaged in

intentionally dilatory litigation tactics. See Rhines v. Weber,

544 U.S. 269, 278-79 (2005) (permitting a federal district court

to stay a federal habeas action and hold the petition in abeyance

while the petitioner exhausts claims in state court). See also

Duncan v. Walker, 533 U.S. 167, 182-83 (2001) (Stevens, J.,

concurring) (district court may retain jurisdiction over a

meritorious claim and stay further proceedings pending the

complete exhaustion of state remedies). Staying unexhausted

claims 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, 126

n.3 (1st Cir. 2001); see also Delaney v. Matesanz, 264 F.3d 7, 15

n.5 (1st Cir. 2001) (recommending staying exhausted claims where

“there is a realistic danger that a second petition, filed after

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8

exhaustion has occurred, will be untimely”). Accordingly, if

Shaneyfelt elects to exhaust his unexhausted claims, I will order

the proceedings stayed and the petition held in abeyance, pending

complete exhaustion of state remedies. 

Conclusion

For the reasons stated above and because the claims raised

in the petition have not been exhausted, I will allow Shaneyfelt

an opportunity to amend his petition to demonstrate exhaustion of

state remedies with regard to his claims and the federal nature

of those claims. To make this showing, he is instructed to

provide the court with a copy of his notice(s) of appeal to the

NHSC and any other relevant state court pleadings, orders or

decisions within thirty (30) days. If the claims have not been

exhausted, he is ordered to notify the court either (1) that he

is withdrawing the unexhausted claims or (2) that he is

proceeding in state court to exhaust them. 

 In the event he chooses to exhaust in state court, he must

commence the state court proceedings within thirty (30) days of

the date of this order. I will order the proceedings stayed and

the petition held in abeyance, pending complete exhaustion of

state remedies. The stay will be issued under the following two

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conditions:

1. Shaneyfelt is ordered to contact this Court

every 90 days, beginning from the date of entry of

this order, and inform the court of the status and

pendency of his state court proceedings, if any,

and the disposition of any appeal or related

matter. 

2. Within 30 days following any ruling and/or

notification by the New Hampshire Supreme Court on

the claims at issue, and the exhaustion of such

claims, Shaneyfelt must notify this Court of the

ruling and submit all briefs or other pleadings

filed in the state court proceedings; he must also

file a request with this Court, stating that his

state court matter has been disposed of and that

he wishes to terminate the stay and have this

Court further consider his petition.

Failure to comply with either condition may result in

dismissal of the petition without prejudice.

SO ORDERED.

____________________________________

James R. Muirhead 

United States Magistrate Judge

Date: September 18, 2006

cc: Harold E. Shaneyfelt, Jr., pro se

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