UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Joshua Manning

v. Civil No. 05-cv-369-SM

Larry Blaisdell, Warden,

Northern New Hampshire

Correctional Facility

REPORT AND RECOMMENDATION

Joshua Manning filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254 on October 19, 2005 setting forth

two claims for relief, one alleging a violation of Manning’s

Fourth Amendment rights and one alleging an illegal consecutive

sentence. On October 25, 2005, I recommended that the Fourth

Amendment claim be dismissed (document no. 4). That

recommendation was approved by the Chief Judge on November 14,

2005 (document no. 8). On October 25, 2005, I also issued an

Order directing Manning to amend his consecutive sentence claim

to demonstrate that the claim was exhausted in the state courts

(document no. 5). With respect to the consecutive sentence

claim, Manning was specifically instructed to:

[F]ile documentation demonstrating that this issue, 

including the provision of the United States 

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constitution or federal law that he claims was 

violated, was raised in the state courts and 

ultimately presented to the [New Hampshire Supreme 

Court] for consideration. This documentation 

includes any pleadings, briefs, notice of appeal or 

other documents filed in the state trial and 

appellate courts relative to this claim and any 

orders issued in the state courts relative to this 

claim.

See Order, Oct. 25, 2005 at *7 (emphasis added). 

Manning has now filed an amended complaint, attaching both

the notice of appeal and brief previously filed in the New

Hampshire Supreme Court regarding the sentencing issue (document

no. 11). Manning’s documents demonstrate that the issue of

illegal sentencing was raised in the New Hampshire Supreme Court. 

It is apparent from a review of the amended complaint and its

attachments, however, that no claim of a violation of a federal

constitutional or statutory right was presented to that court for

consideration. Accordingly, I find that Manning’s sentencing

claim has not been exhausted in the state courts and I recommend

that the petition be dismissed. See Lanigan v. Maloney, 853 F.2d

40, 42 (1st Cir. 1988), cert. denied, Maloney v. Lanigan, 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

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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).

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: January 31, 2006 

cc: Sven D. Wiberg, Esq.

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