1According to Rule 2 of the Rules Governing § 2254 Cases in

the United States District Courts:

(a) If the petitioner is currently in custody under

a state-court judgment, the petition must name as 

respondent the state officer who has custody.

(b) If the petitioner is not yet in custody--but 

may be subject to future custody--under the statecourt judgment being contested, the petition must 

name as respondents both the officer who has 

current custody and the attorney general of the 

state where the judgment was entered. . . . 

The petition is not clear as to whether Ford is currently serving

his New Hampshire sentence in a Rhode Island facility, or whether

he will serve his New Hampshire sentence at some time in the

future, after he has completed prison time imposed in other

jurisdictions. For purposes of preliminary review, however, I

will allow the petition to proceed in this Court and construe the

petition as naming both the prison officer in charge of the Rhode

Island facility where Ford is currently incarcerated and the

Attorney General of the State of New Hampshire. See Braden v.

30th Jud. Cir. Ct. of Ky., 410 U.S. 484, 500 (1973) (holding that

petitioner’s incarceration in another state does not deprive a

District Court of jurisdiction where the District Court has

personal jurisdiction over the respondent). The Clerk’s Office

is directed to amend the docket information in this case to

reflect the proper respondent to this action. 

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Scott Anthony Ford

v. Civil No. 06-cv-341-PB

Warden, New Hampshire State Prison1

O R D E R

Scott Ford has filed a petition for a writ of habeas corpus,

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pursuant to 28 U.S.C. § 2254, challenging his New Hampshire

criminal conviction and sentence (document no. 1). The petition

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

Governing § 2254 Cases in the United States District Courts (“§

2254 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). As discussed herein, I find that the

petition does not at this time make a facially sufficient showing

that Ford is entitled to relief. I order, therefore, that Ford

amend his petition to demonstrate that each of the claims therein

has been properly exhausted and that this petition is timely

filed.

Standard of Review

Under this Court’s local rules, when an incarcerated

plaintiff commences an action pro se and in forma pauperis, the

magistrate judge is directed to conduct a preliminary review.

LR 4.3(d)(2). In conducting the preliminary review, the Court

construes pro se pleadings liberally. See Ayala Serrano v.

Lebron Gonzales, 909 F.2d 8, 15 (1st Cir. 1990) (following

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Estelle v. Gamble, 429 U.S. 97, 106 (1976) to construe pro se

pleadings liberally in favor of the pro se party). “The policy

behind affording pro se plaintiffs liberal interpretation is that

if they present sufficient facts, the court may intuit the

correct cause of action, even if it was imperfectly pled.” Ahmed

v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997), cert. denied,

Ahmed v. Greenwood, 522 U.S. 1148 (1998).

At this preliminary stage of review, all factual assertions

made by the plaintiff and inferences reasonably drawn therefrom

must be accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3

(1st Cir. 1996) (stating the “failure to state a claim” standard

of review and 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. Dir. of C.I.A., 843

F.2d 46, 49 (1st Cir. 1988).

Background

Scott Ford was charged with two sets of criminal offenses in

the Rockingham County Superior Court in the mid-1990s. In one

set of offenses, Ford was charged with robbery and theft. Prior

to facing the New Hampshire charges, while incarcerated in Maine,

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Ford filed a request under New Hampshire’s Interstate Agreement

on Detainers (“IAD”), N.H. Rev. Stat. Ann. (“RSA”) 606-A:1, et

seq., that he be brought to New Hampshire for trial on the

robbery and theft charges under the provisions of the IAD. Once

he arrived in New Hampshire, Ford was charged with a second

separate set of theft offenses not having anything to do with the

original robbery and theft charges. Ford alleges that because he

was charged with five additional felonies upon his arrival in New

Hampshire, he was forced to continue his trial in the first

matter for more than 400 days, well beyond the 120-day deadline

prescribed by Article IV(c) of the IAD to bring a detainee to

trial. Ford claims that his trial attorney failed to notice that

the IAD had been violated and therefore never sought to dismiss

the case against Ford on that basis, relief that the statute

allows in some circumstances for a violation of the 120-day

deadline. See RSA 606-A:1, Art. V(c). Ford now alleges that he

is entitled to habeas relief on the basis of (1) the violation of

his right to a trial within 120 days under the IAD, and (2) the

ineffective assistance of his trial counsel for not pressing his

rights under the IAD.

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After a jury trial, Ford was sentenced on June 12, 1997, to

15 - 30 years in prison pursuant to the robbery and theft

convictions. Ford subsequently appealed his conviction to the

New Hampshire Supreme Court. That court affirmed his conviction

in 1999. See State v. Ford, 144 N.H. 57 (1999). 

Ford alleges that he filed post-conviction motions seeking

relief on the basis of ineffective assistance of trial counsel

and a violation of the speedy trial provisions of the IAD. Those

motions were denied in March of 2006. Ford filed a notice of

appeal in the New Hampshire Supreme Court in April of 2006. On

June 8, 2006, the New Hampshire Supreme Court declined to accept

Ford’s appeal. This petition followed.

Discussion

1. Custody and Exhaustion

To be eligible for habeas relief, Ford must show that he is

both in custody and has exhausted all state court remedies or

that he is excused from exhausting those remedies because of an

absence of available or effective state corrective process. See

28 U.S.C. § 2241 and § 2254(a) & (b); see Braden v. 30th Jud.

Cir. Ct. of Ky., 410 U.S. 484, 489-92 (1973); Benson v. Super.

Ct. Dep’t of Trial Ct. of Mass., 663 F.2d 355, 358-59 (1st Cir.

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6

1981). Ford satisfies the first requirement as he is currently

incarcerated. However, the petition does not establish

satisfaction of the exhaustion requirement.

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 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).

Ford has alleged that he brought these issues to the state

trial and appellate courts in his post-conviction litigation. 

However, Ford has not provided this Court with any of the

motions, notices of appeal or other pleadings brought in the

state courts which demonstrate that any of his claims, or the

federal nature of any of his claims, have been fairly presented

Case 1:06-cv-00341-PB Document 3 Filed 10/03/06 Page 6 of 12
2This Court is permitted, but not obliged, to consider, sua

sponte, the timeliness of a state prisoner’s habeas petition. 

Day v. McDonough, 126 S.Ct. 1675, 1684 (2006). Given the length

of time that has passed since the apparent expiration of the

limitations period in this case, it is in the interests of

justice and judicial economy to resolve the issue of the

petition’s timeliness at preliminary review if possible.

7

to, and thereby exhausted in, the state courts. In order to

demonstrate exhaustion of his claims, including the federal

nature of the claims, Ford must submit to this Court copies of

all of his pleadings presented to the state courts regarding the

ineffective assistance and IAD claims raised in this petition, so

that this Court can determine whether or not the state courts

have been given a fair opportunity to rule on the claims raised

here, including the federal nature of those claims, to allow this

action to proceed. 

2. Timeliness of the Petition2

The Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), 28 U.S.C. § 2244 sets a one-year limitations period for

federal habeas petitions by state prisoners. 28 U.S.C. §

2244(d)(1). AEDPA’s one-year limit runs from the time that the

state court judgment of conviction becomes final by the

conclusion of direct review or the expiration of the time for

seeking direct review. 28 U.S.C. § 2244(d)(1)(A). 

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Statutory exceptions to the one-year limitations period

exist where an untimely filing was caused by the state, new

constitutional rights created by the Supreme Court, or newly

discovered facts underpinning the claim. David v. Hall, 318 F.3d

343, 344 (1st Cir.), cert. denied, 540 U.S. 815 (2003); 28 U.S.C.

§ 2244(d)(1)(B)-(D). The AEDPA further excludes from the oneyear limitations period “[t]he time during which a properly filed

application for State post-conviction or other collateral review

with respect to the pertinent judgment or claim is pending . ...” 

28 U.S.C. § 2244(d)(2). While the limitations period is stopped

from running during the pendency of properly filed postconviction state court litigation, it is not reset or restarted

by post-conviction litigation initiated after the AEDPA

limitations period has expired. Cordle v. Guarino, 428 F.3d 46,

48 n.4 (1st Cir. 2005). 

Additionally, the First Circuit has stated that equitable

tolling of the AEDPA’s limitations period is available only in

extraordinary circumstances. Cordle, 428 F.3d at 48 (citing

Delaney v. Matesanz, 264 F.3d 7, 14 (1st Cir. 2001)). Equitable

tolling is reserved for cases in which circumstances beyond the

petitioner’s control prevented prompt filing of the petition. 

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Cordle, 428 F.3d at 48 (citing Lattimore v. Dubois, 311 F.3d 46,

55 (1st Cir. 2002)). 

As previously noted, Ford’s direct appeal was denied on July

21, 1999. His conviction became final ninety days thereafter on

October 19, 1999. See id. at 48 (citing Neverson v. Farquharson,

366 F.3d 32, 42 (1st Cir. 2004) (stating that a defendant’s

conviction became final when the ninety day period for seeking

certiorari expired)). Ford commenced this action on September

11, 2006, almost seven years later. During that time, Ford

sought post-conviction relief in the state courts. Although Ford

has not stated when he commenced his post-appeal litigation in

the state courts, he has advised the court that those motions

were decided in the trial court in March 2006 and in the

appellate court in June 2006. The petition is also silent as to

whether or not Ford had any properly filed motions pending in the

state court for the time between October 19, 1999 and the

commencement of his post-conviction litigation. If, between the

onset of the limitations period and the filing of his postconviction motion for relief, more than 365 days passed, during

which there was no properly filed action pending in the state 

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courts seeking relief from Ford’s conviction and sentence, the

statutory limitations period has expired. 

Ford argues that he should be exempted from having to file

within the limitations period because he was incarcerated out-ofstate in an institution that did not provide him with access to

New Hampshire legal materials. It is not clear what New

Hampshire legal materials Ford needed to file an action alleging

a violation of his federal constitutional or statutory rights. 

Ford further argues that his former defense attorney neglected to

provide him with copies of documents that would have permitted

him to seek state court post-conviction relief sooner. While, as

previously noted, the one year limitations may be equitably

tolled, see Cordle, 428 F.3d at 48, it is available only for

extraordinary circumstances. Ordinarily, attorneys’ excusable

neglect is not grounds for tolling the limitations period. See

id. at 48-49. This is particularly true where the attorney’s

errors do not account for a lack of diligence on the part of

petitioner to file his federal habeas action within the one year

limitations period. See id. at 48. While Ford asserts that he

has diligently pursued his claims, he has not yet provided this

Court with enough information to allow the Court to determine

Case 1:06-cv-00341-PB Document 3 Filed 10/03/06 Page 10 of 12
3If this petition were to be dismissed for failing to

demonstrate exhaustion, the dismissal would be without prejudice

11

that he was unable to file this action at any time during the

seven years since the limitations period began to run. 

The information currently included in Ford’s petition does

not allow me to conclusively determine whether or not the

limitations period in this case has expired. Accordingly, Ford

is ordered to amend his complaint within thirty days to

demonstrate whether this petition was timely filed under the

limitations of AEDPA. Absent additional information provided by

Ford in his amended petition, I cannot find that the reasons he

provides for not filing sooner demonstrate extraordinary

circumstances sufficient to toll the limitations period for more

than six years.

Conclusion

Ford is ordered to amend his petition within thirty days of

the date of this Order to demonstrate that he has already

exhausted all of his claims, including the federal nature of the

claims, in the state courts by filing pleadings and orders

relevant to exhaustion. If Ford fails to demonstrate exhaustion

or timeliness as directed, I will recommend that his petition be

dismissed.3

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as it would be procedural and not based on the merits of Ford’s

claims. See Slack v. McDaniel, 529 U.S. 473 (2000).

12

Further, Ford is ordered to provide this Court with the

precise dates during which he had any litigation concerning this

conviction and sentence pending in the state courts after his

conviction was made final on October 19, 1999 or any other

information relevant to the determination of the timeliness of

this petition. Ford must provide both dates upon which postconviction litigation was commenced by the proper filing of

pleadings in the state courts and the dates upon which each state

court post-conviction action ended, as well as any other dates

relevant to the Court’s timeliness determination.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: October 3, 2006

cc: Scott Anthony Ford, pro se

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