UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Charles Teryek

v. Civil No. 05-cv-404-PB

Superintendent, Carroll County

Department of Corrections

O R D E R

Pro se petitioner Charles Teryek has filed a petition for a

writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging

the constitutionality of his incarceration pursuant to a state

court order of civil contempt (document no. 1). The petition is

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

Governing Section 2254 Proceedings (“Habeas Rules”) (requiring

initial review to determine whether the petition is facially

valid and may be served); United States District Court for the

District of New Hampshire Local Rules 4.3(d)(authorizing the

magistrate judge to preliminarily review pro se pleadings). For

the reasons stated below, I order Teryek to amend his petition to

demonstrate exhaustion of state remedies. 

Case 1:05-cv-00404-PB Document 2 Filed 12/20/05 Page 1 of 16
1While Teryek challenges his incarceration since January 14,

2005, a superior court order of September 23, 2004 suggests that

has been incarcerated for civil contempt as early as September

2004. See Knight, et al. v. Teryek, et al., No. 03-E-057 (N.H.

Super. Sept. 23, 2004).

2

Background

This action stems from underlying state court civil

proceedings brought against Charles Teryek and his wife, Mary,

for alleged violations under New Hampshire Rev. Stat. Ann.

236:112(1)(defining “junkyard”). See Knight, et al. v. Teryek,

et al., No. 03-E-057 (N.H. Super. Sept. 23, 2004). Teryek is

sixty-four years old and a resident of the Town of Wolfeboro

(“Town”). In 2004, he entered into a contract with the Town to

provide services for trash collection and removal. Since January

14, 2005, he has been incarcerated at the Carroll County

Department of Corrections (“CCDOC”) upon a finding of civil

contempt for failure to comply with a state court order,

requiring him to remove certain material or junk from his

residence.1

On September 18, 2003 and February 1, 2004, the New

Hampshire Superior Court (Carroll County) ordered Teryek to

remove certain material from his residence. Mary Teryek filed a

Request for Court to Modify Order and Appoint Counsel on

Case 1:05-cv-00404-PB Document 2 Filed 12/20/05 Page 2 of 16
3

September 20, 2004, claiming that while she had made considerable

progress in attempting to remove 100 truckloads of material from

the residence, she was unable to fully comply with the court’s

orders. She further claimed that during her husband’s

incarceration, she had attempted to fulfill the terms of his

contract with the Town and comply with the court’s orders but was 

unable to fully comply. She requested the court to modify its

order on four grounds: (1) to release Teryek from custody so that

he could perform the conditions required by the court; (2) to

amend the clean-up order to enable him to comply; (3) to permit

materials on the property to be sold; and (4) to appoint counsel. 

On September 23, 2004, the superior court conducted a hearing on

Teryek’s request and ordered him released from the CCDOC on

September 24, 2004 for four hours to meet with his wife and

determine the material to be removed from their residence. The

court further ordered him to be returned to the CCDOC until he

effected the removal of 182 yards of material from the site or,

in the alternative, the removal of all “junk” as defined by

statute, presumably New Hampshire Rev. Stat. Ann. 236:112(1).

On January 14, 2005, the New Hampshire Superior Court

(Carroll County) found Teryek in willful contempt for failing to

Case 1:05-cv-00404-PB Document 2 Filed 12/20/05 Page 3 of 16
4

abide by its previous orders, instructing him to remove ten

truckloads of material from his residence each week for five

weeks, as defined by RSA 236:112(1). The court ordered a capias

to issue for his arrest and further ordered him incarcerated

until forty truckloads of material were removed from the

residence and such removal was verified by an executed document

from the Wolfeboro Waste Facility.

In February 2005, Teryek filed a petition for a writ of

habeas corpus with the New Hampshire Supreme Court. Although he

has failed to provide a copy of the petition or identify the

precise issues raised, he has provided a copy of a New Hampshire

Supreme Court decision, showing that he asserted violations of

his Sixth and Fourteenth Amendment rights when he was denied

appointed counsel during the state court civil contempt

proceedings and where his incarceration was imminent. The New

Hampshire Supreme Court held that in the context of civil

contempt proceedings, the Sixth Amendment right to counsel does

not apply and that any right to counsel derives only from the Due

Process Clause of the Fourteenth Amendment. Relying upon Duval

v. Duval 114 N.H. 422, 425-26 (1974) (holding that it is within

the discretion of the trial court whether to appoint counsel for

Case 1:05-cv-00404-PB Document 2 Filed 12/20/05 Page 4 of 16
5

an indigent defendant in a civil contempt proceeding), the court

held that appointment of counsel in civil contempt proceedings is

discretionary, and due process does not require the appointment

of counsel in every instance where the possibility of

incarceration exists. Duval v. Duval 114 N.H. 422, 425-26, 322

A.2d, 1, 3-4 (1974). The New Hampshire Supreme Court denied the

appeal, reasoning that Teryek’s failure to provide a transcript

rendered the record insufficient to “determine whether the trial

court unsustainably exercised its discretion when it did not

appoint counsel for [him].” 

Teryek now brings the instant petition for federal habeas

corpus relief, challenging his confinement on five grounds, as

discussed more fully below.

Standard of Review

In reviewing a pro se petition, this court must construe the

pleadings liberally, see Ayala Serrano v. Gonzalez, 909 F.2d 8,

15 (1st Cir. 1990)(following Estelle v. Gamble, 429 U.S. 97, 106

(1976)), treating all well-pleaded factual allegations as true

and drawing all reasonable inferences in the litigant’s favor,

see Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996)(explaining

that all “well-pleaded factual averments,” not bald assertions,

Case 1:05-cv-00404-PB Document 2 Filed 12/20/05 Page 5 of 16
6

must be accepted as true). This review ensures that pro se

pleadings are given fair and meaningful consideration. See

Eveland v. Director of CIA, 843 F.2d 46, 49 (1st Cir. 1988).

Discussion

I. Custody and Exhaustion

To be eligible for habeas relief, a petitioner 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). Teryek satisfies the custody requirement as he is

currently incarcerated for civil contempt at the CCDOC, see

Duncan v. Walker, 533 U.S. 167, 176 (2001) (noting that federal

habeas review may be available to challenge the legality of a

state court order of civil contempt) and Fernos-Lopez v. Lopez,

929 F.2d 20, 23 (1st Cir. 1991)(person incarcerated for civil

contempt is in custody for purposes of invoking habeas

jurisdiction), but he has failed to satisfy the exhaustion

requirement.

“Barring certain exceptional circumstances not present here,

a habeas petitioner in state custody may not advance his or her

Case 1:05-cv-00404-PB Document 2 Filed 12/20/05 Page 6 of 16
7

constitutional claims in a federal forum unless and until the

substance of those claims has been fairly presented to the

state’s highest court.” Barresi v. Maloney, 296 F.3d 48, 51 (1st

Cir. 2002). The exhaustion requirement, codified at 28 U.S.C. §§

2254 (b) & (c), embodies principles of federal-state comity and

is designed to provide state courts with an initial opportunity

to pass upon and correct alleged violations of a prisoner’s

federal rights. See O’Sullivan v. Boerckel, 526 U.S. 838, 845

(1999) (“Because the exhaustion doctrine is designed to give the 

state courts a full and fair opportunity to resolve federal

constitutional claims before those claims are presented to the

federal courts, we conclude that state prisoners must . . .

[invoke] one complete round of the State’s established appellate

review process.”); accord Duncan v. Henry, 513 U.S. 364, 365-66

(1995); Picard v. Connor, 404 U.S. 270, 275-76 (1971). 

“To provide the State with the necessary ‘opportunity,’ the

prisoner must ‘fairly present’ his claim in each appropriate

state court (including a state supreme court with powers of

discretionary review), thereby alerting that court to the federal

nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004)

(holding that a state prisoner does not “fairly present” a

Case 1:05-cv-00404-PB Document 2 Filed 12/20/05 Page 7 of 16
8

federal claim to a state court if that court must read beyond a

petition, brief or similar document that does not alert it to the

presence of a federal claim). Thus, if Teryek has failed to

adequately present his federal constitutional claims to the New

Hampshire Supreme Court, he is precluded from seeking relief in

federal court.

II. Habeas Corpus Claims

Teryek raises five grounds for federal habeas corpus relief. 

For the reasons stated below, he is ordered to amend Grounds One,

Four and Five of the petition. Grounds Two and Three are not

cognizable under federal habeas review.

A. Ground One

Construed liberally, Ground One alleges that Teryek’s due

process rights were violated when he was denied appointed counsel

during civil contempt proceedings where he faced the possibility

of incarceration and subsequently was incarcerated. See Lassiter

v. Dep’t of Soc. Servs., 452 U.S. 18, 26-27 (1981)(drawing a

“presumption that an indigent litigant has a right to appointed

counsel only when, if he loses, he may be deprived of his

liberty.”); see also Colson v. Joyce, 646 F. Supp. 102, 105-06

(D. Me. 1986) (finding contemnor has right to counsel in civil

Case 1:05-cv-00404-PB Document 2 Filed 12/20/05 Page 8 of 16
9

contempt proceedings where incarceration can be imposed). In his

appeal to the New Hampshire Supreme Court, Teryek alleged that

his due process rights were violated when the superior court

denied him appointed counsel during contempt proceedings. 

Because the record is silent as to whether he was indigent when

he requested appointed counsel, Teryek is ordered to amend his

petition to demonstrate his indigence during the relevant time

period in his state court proceedings. See Walker v. McLain, 768

F.2d 1181, 1185 (10th Cir. 1985)(due process requires, at a

minimum, that an indigent defendant threatened with incarceration

for civil contempt, who can establish indigence under the normal

standards for appointment of counsel in a criminal case, be

appointed counsel to assist him in his defense). To make this

showing, he should provide this Court with any relevant state

court pleadings or documents reflecting his indigent status.

 B. Grounds Two and Three

In Ground Two of the petition, Teryek challenges New

Hampshire Rev. Stat. Ann § 236:112(1) as vague and

unconstitutional and broadly alleges that he was denied due

process and equal protection during the state court proceedings. 

He does not assert any violation of federal law or the United

Case 1:05-cv-00404-PB Document 2 Filed 12/20/05 Page 9 of 16
10

States Constitution. Where, as here, a petitioner challenges a

state statute, without clearly indicating that he was denied any

right approaching constitutional dimension, the claim is governed

by state law and is not cognizable under federal habeas review. 

See Estelle v. McGuire, 502 U.S. 62, 67 (1991)(quoting Pulley v.

Harris, 465 U.S. 37, 41 (1984) (“federal habeas corpus relief

does not lie for errors of state law”). He further alleges that

a state district court incorrectly found that he “admitted to

operating an illegal junkyard.” Because this claim arises under

state law, it is not independently cognizable in a federal habeas

corpus petition. See Estelle, 502 U.S. at 67 (errors of state

law are not cognizable in a petition for habeas corpus unless

they result in the violation of a constitutional or federal

right); accord Burt v. Uchtman, 422 F.3d 557, 567 (7th Cir.

2005). To the extent Teryek is unable to state a claim of

federal constitutional dimension, he should withdraw this claim. 

Ground Three alleges that the superior court denied Teryek due

process when it ordered him to remove junk from his property

without defining “junk” or giving him an opportunity to explain

his inability to comply with the court order. Because this claim

also arises under state law, it is not reviewable in a federal

Case 1:05-cv-00404-PB Document 2 Filed 12/20/05 Page 10 of 16
11

habeas proceedings and therefore should be withdrawn. See id.

C. Grounds Four and Five

Ground Four asserts that Teryek presently is unable to

comply with the state court contempt order, requiring him to

remove certain material from his property, because compliance is

impossible while he is incarcerated. See Duncan, 533 U.S. at 176

(noting that federal habeas corpus review may be available to

challenge the legality of a state court order of civil contempt). 

See also English v. Bowles, No. 3:03-CV-0786-K, WL 22427072, at

*1 (N. D. Tex. Oct. 22, 2003)(citing United States v. Rylander,

460 U.S. 752, 757 (1983)(“A contemnor may purge himself of a

contempt order, and obtain release from jail at any time, by

complying with the contempt order or by adducing evidence of his

present inability to comply with the contempt order.”). Ground

Five alleges that each time Teryek attempted to comply with the

contempt order and removed material from his property, the court

subsequently increased the amount of material to be removed from

the site and that the continual increases rendered his compliance

impossible. Id.

While Teryek asserts that the above claims were presented to

and reviewed by the state courts, he has failed to provide a copy

Case 1:05-cv-00404-PB Document 2 Filed 12/20/05 Page 11 of 16
12

of his notice of appeal to the New Hampshire Supreme Court, or

any related supporting documentation, demonstrating that each

claim and the federal nature of each claim was actually presented

to that court. Accordingly, I conclude that the above two claims

are unexhausted for purposes of federal habeas review. To

demonstrate exhaustion, he must provide the court with copies of

any motions, petitions, notices of appeal, briefs and orders

and/or final judgments issued by the state courts, in particular

his notice of appeal to the New Hampshire Supreme Court,

addressing each claim presented in his federal petition. 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). He may need to return to the state

courts to fully present any unexhausted claims and the federal

nature of those claims before he can make the required amendment

to his federal petition.

III. Stay

The Supreme Court has recently decided that a district court

should stay a mixed petition containing both exhausted and

unexhausted claims if the petitioner “has good cause for his

Case 1:05-cv-00404-PB Document 2 Filed 12/20/05 Page 12 of 16
13

failure to exhaust, his unexhausted claims are potentially

meritorious, and there is no indication that [he] engaged in

intentionally dilatory litigation tactics. Rhines v. Weber, 125

S. Ct. 1528, 1535 (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, 533 U.S. at 182-83 (district court may 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, 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 exhaustion

has occurred, will be untimely”). 

If Teryek has not engaged in any state court litigation

challenging his incarceration since the New Hampshire Supreme

Court denied his appeal on July 27, 2005, the dismissal of this

Case 1:05-cv-00404-PB Document 2 Filed 12/20/05 Page 13 of 16
14

petition may well imperil the timeliness of Ground One, which

appears to be exhausted if he can establish indigence. Liberally

construing the petition, I find that while Teryek has not at this

time made a specific showing of good cause for his failure to

exhaust each claim, he has demonstrated a substantial effort to

exhaust Ground One in state court and, as a pro se litigant, may

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 he has raised some or all of his claims in

state court pleadings that have not yet been brought to the

attention of this Court.

Further, I cannot conclude at this stage of the proceedings

that Ground Four and Five, if true, could not present meritorious

challenges to Teryek’s incarceration. I further find that there

is nothing before this Court to indicate that he “engaged in

Case 1:05-cv-00404-PB Document 2 Filed 12/20/05 Page 14 of 16
15

intentionally dilatory litigation tactics” either in pursuing his

claims in the state courts or in this Court. Rhines, 125 S. Ct.

at 1535. Under these circumstances, the proper course of action

is to stay this petition pending the exhaustion of all claims and

compliance with this order. 

Conclusion

For reasons stated above, I will allow Teryek an opportunity

to amend his petition to demonstrate the indigency requirement

with regard to Ground One and to demonstrate exhaustion and the 

federal nature of the claims in Grounds Four and Five. To make

this showing, he is instructed to provide the court with a copy

of his notice(s) of appeal to the New Hampshire Supreme Court and

any other relevant state court pleadings, orders or decisions

within thirty (30) days. If Ground Four and Five have not been

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

withdrawing those 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 (document no. 1) held in abeyance, pending complete

Case 1:05-cv-00404-PB Document 2 Filed 12/20/05 Page 15 of 16
16

exhaustion of state remedies. The stay will be issued under the

following two conditions:

1. Teryek 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, Teryek 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: December 20, 2005

cc: Charles Teryek, pro se

Case 1:05-cv-00404-PB Document 2 Filed 12/20/05 Page 16 of 16