1Convicted and sentenced in New Hampshire, Shaneyfelt

allegedly was subsequently transferred to a facility in Florida

pursuant to the Interstate Corrections Compact. (Def’s Aff. in

Support of Mot. to be Sentenced In Absentia). Although Florida

correctional authorities have daily control over him, it appears

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Harold E. Shaneyfelt, Jr.

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

State of New Hampshire

O R D E R

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

amended petition for a writ of habeas corpus, pursuant to 28

U.S.C. § 2254, challenging his New Hampshire state court

conviction (document nos. 6 and 7). 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). Named as the respondent

is the State of New Hampshire.1

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that New Hampshire is the true custodian and that Florida is

acting solely as New Hampshire’s agent in incarcerating him. See

Smart v. Goord, 21 F. Supp. 2d 309, 314 (S.D.N.Y. 1998)(holding

that New Hampshire was the proper custodian of a habeas

petitioner who was convicted and sentenced in New Hampshire and

then transferred to New York under the Interstate Corrections

Compact and, therefore, the federal district court in New

Hampshire would be able to assert personal jurisdiction over the

appropriate New Hampshire official if the proceeding were

transferred from New York). Accordingly, I liberally construe

the petition to name as the respondent the Commissioner of the

New Hampshire Department of Corrections. 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).

2

Because Shaneyfelt is in state custody and appears to have

exhausted state remedies, as discussed more fully below, I order 

the petition to be served on the respondent.

Background

Convicted on June 23, 2000 of three counts of felonious

sexual assault by the New Hampshire Superior Court (Rockingham

County), Shaneyfelt was sentenced to a term of imprisonment at

the New Hampshire State Prison. He is currently serving his

sentence at the Taylor Correctional Institution in Perry,

Florida. Following his conviction, Shaneyfelt filed a direct

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

appeal and supporting documents, he raised the following two

claims: (1) the trial court erred by permitting the prosecution

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3

to substantively amend the indictment on the first day of trial,

thereby resulting in prejudice to Shaneyfelt (citing 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)); and (2)

the trial court erred by instructing the jury in such a way as to

suggest that the jury could not consider the absence of any

corroboration of the complainants’ testimony in reaching its

verdict. 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) in which he

alleged that his sentences were imposed consecutively, in

violation of his Fourteenth Amendment right to due process and

his Fifth Amendment protection against double jeopardy. His

motion was denied on May, 15, 2003. He raised similar federal

claims in his subsequent appeal to the NHSC, which was declined

without opinion on September 17, 2003. 

Shaneyfelt also filed in the superior court a petition for

post-conviction relief in which alleged that he was denied

effective assistance of trial counsel, in violation of his

federal constitutional rights and Strickland v. Washington, 466

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4

U.S. 668, 687-88 (1984)(holding that the Sixth Amendment

guarantees criminal defendants the right to effective assistance

of counsel at trial), when his trial counsel: (1) failed to

object to prosecutorial misconduct and the prosecution’s

violation of the Golden Rule (citing 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)); (2) failed to object to the

prosecution’s improper expression of personal belief in

Shaneyfelt’s guilt during closing arguments (3) solicited

incriminating testimony; (4) failed to permit Shaneyfelt to

participate actively in jury selection; and (5) failed to

introduce polygraph test results. Trial counsel’s

ineffectiveness allegedly prejudiced Shaneyfelt and adversely

affected the outcome of his trial. By endorsed order of November

20, 2003, the superior court denied his motion.

Shaneyfelt raised identical federal claims in a subsequent

appeal to the NHSC in which he attached a copy of his motion for

post-conviction relief and incorporated those claims by

reference. On February 11, 2004, the NHSC remanded the case to

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2See 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

5

the New Hampshire Superior Court (Rockingham County). On remand,

the superior court reconsidered the ineffective assistance of

counsel claims raised by Shaneyfelt in his motion for postconviction relief and denied his request for relief on December

17, 2005. Shaneyfelt filed an appeal with the NHSC which was

declined without opinion on June 30, 2006. 

In the instant petition, he alleges four grounds for federal

habeas corpus relief:

1. the trial court erred by permitting the state to

substantively amend the indictment on the first

day of trial, thereby causing prejudice to

Shaneyfelt, in violation of federal law and

Stirone, 361 U.S. at 217) (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. trial counsel rendered ineffective assistance, in

violation of Shaneyfelt’s Sixth and Fourteenth

Amendment rights and Strickland, 466 U.S. at 687-

88 (holding that the Sixth Amendment guarantees

criminal defendants the right to effective

assistance of counsel at trial), when trial

counsel:

a. failed to object to the prosecution’s

violation of the “Golden Rule”2 when the

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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.”).

6

prosecution appealed to the jury to place

themselves in the victim’s shoes, all of

which resulted in prejudice to Shaneyfelt

(Ground 2);

b. failed to object to the prosecution’s

improper expression of personal belief in

Shaneyfelt’s guilt during closing arguments

(Ground 3); and

c. denied Shaneyfelt the opportunity 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. 

Shaneyfelt also satisfies the second requirement as the amended 

petition demonstrates that he has fully exhausted his state

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remedies with regard to each claim.

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

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. Ground One alleges that the trial

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8

court erred by permitting the state to substantively amend the

indictment on the first day of trial, thereby resulting in

prejudice to Shaneyfelt, in violation of his Sixth and Fourteenth

Amendment rights and Stirone, 361 U.S. at 217. The record

reveals that Shaneyfelt raised this claim on appeal to the New

Hampshire Supreme Court. Accordingly, I conclude that he has

demonstrated exhaustion of Ground One for purposes of federal

habeas review.

Grounds Two, Three and Four allege that Shaneyfelt was

denied effective assistance of trial counsel, in violation of his

Sixth and Fourteenth Amendment rights and Strickland, 466 U.S. at 

687-88, when his trial counsel: (1) failed to object to the

state’s violation of the Golden Rule (Ground 2); (2) failed to

object to the prosecutor’s improper expression of personal belief

in Shaneyfelt’s guilt during closing arguments (Ground 3); and

(3) failed to permit Shaneyfelt to participate actively in jury

selection (Ground 4). The record reveals that Shaneyfelt raised

each claim on appeal to the New Hampshire Supreme Court. 

Accordingly, I conclude that he has demonstrated exhaustion of

Grounds Two, Three and Four for purposes of federal habeas

review.

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Conclusion

For the reasons stated above, I order the petition to be 

served on the respondent. See Habeas Rule 4. The respondent

shall file an answer or other pleading in response to the

allegations made therein. See id. (requiring reviewing judge to

order a response to the petition). 

The Clerk’s office is directed to serve the New Hampshire

Office of the Attorney General, as provided in the Agreement On

Acceptance Of Service, copies of this Order and the habeas

petition (document nos. 1 and 7). Respondent shall answer or

otherwise plead within thirty (30) days of the date of this

Order. The answer shall comply with the requirements of § 2254

Rule 5 (setting forth contents of the answer). 

Upon receipt of the response, the Court will determine

whether a hearing is warranted. See § 2254 Rule 8 (providing

circumstances under which a hearing is appropriate). 

Petitioner is referred to Fed. R. Civ. P. 5, which requires

that every pleading, written motion, notice, and similar paper,

after the petition, shall be served on all parties. Such service

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is to be made by mailing the material to the parties’ attorneys. 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: November 7, 2006

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

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