1Myrick filed his initial petition on February 11, 2005

(document nos. 3 & 4). In response to this Court’s Order to

amend his petition (document no. 6), Myrick filed an amended

petition on May 16, 2005 (document no. 8), status reports on

August 23, 2005, October 2, 2005 and November 22, 2005 (document

nos. 14-16), and a motion to lift stay on December 7, 2005

(document no. 17). To the extent that Myrick intends to provide

information regarding the factual predicates for his

constitutional habeas claims or information regarding exhaustion

of those claims in his pleadings, I accept all of the pleadings

listed here as addenda to his original habeas petition and will

consider all of the information contained therein for purposes of

conducting this Court’s preliminary review of the habeas petition

in this case.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Walter E. Myrick

v. Civil No. 05-cv-051-SM

Warden, New Hampshire State Prison

O R D E R

Walter Myrick filed a petition for a writ of habeas corpus1

pursuant to 28 U.S.C. § 2254 alleging that his continued

imprisonment pursuant to a 1996 state sentence violates his

constitutional rights. Myrick’s initial petition alleged that

these claims had been presented to the state trial court, but

admitted that no appeal had been taken to the New Hampshire

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Myrick v. State of New Hampshire Doc. 18

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Supreme Court (“NHSC”). Further, while some post-conviction

litigation had occurred in the state courts, Myrick’s original

petition in this Court did not make clear that the federal nature

of the claims in this action had ever been presented to any state

court for consideration. Myrick was directed to amend his

petition to clarify his intention to proceed with state court

exhaustion of his claims, including the federal nature of those

claims, and to notify this Court of the progress of the state

court proceedings. Myrick’s federal habeas petition was stayed

pending the outcome of the state court proceedings.

Petitioner has now notified the Court that he has sought

appellate review in the NHSC of the claims presented in his

habeas petition, and that the NHSC has declined to accept his

appeal. Petitioner has provided this Court with a copy of the

notice of appeal that was submitted to the NHSC. However, the

notice of appeal, while setting out the factual basis for

Myrick’s claims, does not state the federal nature of the claims

that Myrick seeks to pursue here. Specifically, Myrick has not

yet demonstrated that he has an actionable claim that he is being

held in custody in violation of the Constitution, laws, or

treaties of the United States. I find, therefore, that Myrick

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has not yet demonstrated exhaustion of his federal habeas claims.

To date, Myrick has proceeded in this matter pro se. At

this time, in the interests of justice, I will appoint counsel to

assist Myrick. Counsel is directed to assist Myrick in properly

exhausting his claims, if in fact they are still unexhausted, and

then to properly amend Myrick’s petition in this Court to

demonstrate exhaustion. Accordingly, I appoint Attorney

Christopher Johnson, Chief Appellate Defender of the New

Hampshire Public Defender program, to represent the petitioner in

this matter. Mr. Johnson may employ the services of an assistant

appellate defender working under his supervision to fulfill the

obligations of the appointment, and he may claim compensation for

such services pursuant to The Criminal Justice Act, 18 U.S.C. §

3006A(a)(2)(b) (permitting discretionary appointment of counsel

to indigent person seeking relief under 28 U.S.C. § 2254 when the

interests of justice so require). 

Now that he has the assistance of counsel, I direct Myrick

once again to file notification in this Court as to how he

intends to proceed in this matter. If Myrick is planning to

return to the state court to fully exhaust any claims that may be

unexhausted, he must so notify this Court and again request a

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stay of this matter. If Myrick has already exhausted his claims

in the state court, he must amend his petition within thirty days

of the date of this Order to demonstrate such exhaustion. With

his amended petition, Myrick would be well-advised to provide

this Court with all of the documentation submitted to the NHSC

that demonstrates that the claims and the federal nature of the

claims have in fact been presented for review in that Court.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: January 17, 2006

cc: Walter Myrick, pro se

Christopher M. Johnson, Esq.

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