UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Dwayne Hearns

v. Civil No. 05-cv-413-SM

Warden, New Hampshire State Prison

O R D E R

Pursuant to 28 U.S.C. § 2254, Dwayne Hearns has filed a

petition for a writ of habeas corpus and supporting documents

challenging the constitutionality of his state court conviction

and confinement (document nos. 1, 11 and 13). See Rule 4 of the

Rules Governing Section 2254 Cases in the United States District

Courts (“Habeas Rule”) (requiring initial review to determine

whether the petition is facially valid). As discussed below, I

find that Hearns has sufficiently demonstrated the facial

validity of his petition to allow it to proceed at this time. 

Background

Convicted on October 24, 2002 by the New Hampshire Superior

Court (Merrimack County) of four counts of aggravated felonious

sexual assault and two counts of sexual assault, Hearns was

sentenced to a term of imprisonment. He is currently

incarcerated at the New Hampshire State Prison (“NHSP”). 

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Following his conviction, Hearns filed a direct appeal with the

New Hampshire Supreme Court (“NHSC”). The NHSC affirmed his

conviction on July 15, 2004. See State v. Hearns, 151 N.H. 226,

855 A.2d 549 (2004). On August 5, 2005, Hearns filed a

discretionary appeal with the NHSC in which he raised the

following claims under state and federal law:

1. prosecutorial misconduct whereby the

prosecution improperly vouched for

witness credibility and truth of

testimony, made misrepresentations to

the jury, appealed to the emotions of

the jurors, used excluded evidence and

shifted the burden of proof to the

defendant;

2. abuse of discretion whereby the trial

court required Hearns to choose between

his right to a speedy trial and his

right to introduce exculpatory evidence;

and

3. ineffective assistance of trial counsel.

The NHSC declined his appeal without opinion on October 28, 2005. 

Hearns filed the instant federal habeas corpus petition on

November 21, 2006. Construed liberally, the petition raises the

following four grounds for relief and cites to both state and

federal law in support of each claim:

1. prosecutorial misconduct whereby the

prosecution improperly vouched for

witness credibility and truth of

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testimony, made misrepresentations to

the jury, appealed to the emotions of

the jurors, used excluded evidence and

shifted the burden of proof to the

defendant (Ground 1);

2. abuse of discretion whereby the trial

court required Hearns to choose between

his right to a speedy trial and his

right to introduce exculpatory evidence

(Ground 2);

3. ineffective assistance of trial counsel

(Ground 3); and

4. denial of due process when consecutive

sentences were imposed without fair

notice and where the consecutive

sentences were not authorized under New

Hampshire law (Ground Four).

Given that Hearns’s federal petition failed to demonstrate

exhaustion of Ground Four, this Court stayed the proceedings and

held the petition in abeyance to afford him an opportunity to

exhaust state remedies with regard to that claim. 

Hearns then filed a second discretionary appeal with the

NHSC in which he raised the following claim: 

1. imposition of consecutive sentences under New 

Hampshire law violates federal law where: 

(a) the sentencing court lacked

authority to impose consecutive

sentences;

(b) Hearns was denied fair notice

regarding the risk of imposition of

consecutive sentences, in violation

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1Defining the rule, the First Circuit has held that “[i]n a

criminal case, the rule of lenity requires a court to resolve

true statutory uncertainty in the accused’s favor.” United

States v. Ahlers, 305 F.3d 54, 62 (1st Cir. 2002). The rule,

however, is one of statutory interpretation. See Sabetti v.

DiPaolo, 16 F.3d 16, 19 (1st Cir. 1994). Thus, federal courts

lack the power to apply the rule of lenity to a state statute,

except to serve constitutional interests. See Sabetti, 16 F.3d

at 19; accord Lurie v. Wittner, 228 F.3d 113, 125-26 (2d Cir.

2000).

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of his right to due process; 

(c) imposition of consecutive

sentences violates the

constitutional separation of

powers;

(d) the consecutive sentences

imposed upon Hearns were

disproportionate to the sentences

authorized by New Hampshire

statute; and 

(e) lacking a statute specifying

how multiple sentences may be

imposed, the New Hampshire Criminal

Code should be construed in a

defendant’s favor, as required by

the rule of lenity.1

The NHSC declined his appeal without opinion on April 13, 2007. 

Having requested this Court to lift the stay of proceedings,

Hearns now seeks preliminary review his federal petition. 

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,

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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,

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, Hearns 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 NHSP and

thus is in custody. For the reasons stated below, he also

satisfies the exhaustion requirement as to the four grounds

raised in his federal petition.

A petitioner’s remedies in New Hampshire are exhausted when

the State’s highest court has had an opportunity to rule on the

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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, Hearns raises four grounds for 

federal habeas corpus relief, as identified above. The four

grounds are identical to the claims raised by Hearns in his two

discretionary appeals that were presented to the NHSC for review.

While he could have presented his federal constitutional issues

in a more direct and precise manner, his discretionary appeals

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were minimally sufficient to apprise the NHSC of the federal

constitutional dimension of his claims. I therefore find that

the four claims presented here, including the federal nature of

the claims, have been properly exhausted in the state courts to

allow Hearns’ federal habeas corpus action to proceed at this

time.

Conclusion

Accordingly, I direct that Hearns’s petition 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 no. 1, 11 and 13). Respondent shall

answer or otherwise plead within thirty (30) days of the date of

this Order. The answer shall comply with the requirements of

Habeas Rule 5 (setting forth contents of the answer). 

Upon receipt of the response, the Court will determine

whether a hearing is warranted. See Habeas Rule 8 (providing

circumstances under which a hearing is appropriate). 

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

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

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

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

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: May 2, 2007

cc: Dwayne Hearns, pro se

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