1Habeas Rule 2 provides, in relevant part:

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Randy S. Campney, Sr.

v. Civil No. 06-cv-353-SM

Superintendent, Bare Hill

Correctional Facility

O R D E R

Pro se petitioner Randy S. Campney, Sr. requests this Court

to lift the stay of federal proceedings and review his petition

for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254

(document nos. 1, 5-7, 12-13 and 16). The petition is before me

for preliminary review. See Rule 4 of the Rules Governing § 2254

Proceedings (“Habeas 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). 

Named as the respondent is John Donelli, Superintendent of

the Bare Hill Correctional Facility (“BHCF”).1 For the reasons

Case 1:06-cv-00353-SM Document 18 Filed 06/07/07 Page 1 of 17
(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. . . . 

In the instant petition, it is unclear whether Campney is

currently serving his New Hampshire sentence in a New York

facility, or whether he will begin serving his New Hampshire

sentence at the expiration of the sentence imposed upon him by

another jurisdiction. For purposes of preliminary review, I will

allow the petition to proceed in this Court and liberally

construe the petition to name as respondents both Donelli and the

Attorney General for the State of New Hampshire. See Maleng v.

Cook, 490 U.S. 488, 493 (1989) (prisoner may attack a conviction

or sentence for which he is not currently confined but for which

he may be subject to future incarceration); Braden v. 30th

Judicial Circuit Court, 410 U.S. 484, 500 (1973) (state prisoner

may challenge a detainer lodged against him by filing a habeas

petition either in his current state of incarceration or in the

state which lodged the detainer against him). See also, Montez

v. McKinna, 208 F.3d 862 (10th Cir. 2000)(questions as to whether

warden of out-of-state correctional facility in which prisoner

was incarcerated was properly named as respondent in habeas

petition, and whether correctional official of state of

conviction was indispensable party, did not deprive district

court or court of appeals of jurisdiction).

2

stated below, I order the petition served on the respondents as

to Grounds 3(e), 4-8 and 10.

Background

Convicted on March 23, 2004 by the New Hampshire Superior

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Court (Hillsborough County) of burglary and theft by unauthorized

taking, Campney was sentenced to a term of imprisonment. He is

currently incarcerated at the BHCF in Malone, New York. Campney

subsequently filed a direct appeal with the New Hampshire Supreme

Court (“NHSC”), and his conviction was affirmed on January 25,

2006.

After filing a series of other post-conviction motions with

the superior court, Campney filed a motion to vacate the verdict

and dismiss the indictments; his motion was denied on November

14, 2006. He then filed a notice of appeal with the NHSC on

December 4, 2006 in which he raised the following claims relevant

to this action:

1. illegal arrest when Campney was arrested without a

warrant and without probable cause;

2. illegal search and seizure when the search and

seizure was conducted after the arrest, and

evidence obtained was used as grounds for the

arrest;

3. violations of the Interstate Agreement on

Detainers (“IAD”), when: 

a. the trial court refused to dismiss the

indictments against Campney after he

repeatedly notified New Hampshire of his

place of imprisonment and his request for

final disposition to be made on the New

Hampshire indictments; 

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b. the State of New York and/or New Hampshire

misplaced one of more of the notices, thereby

causing Campney to be tried in New Hampshire

more than 180 days after delivery of the

notices;

c. the State of New York failed to provide the

notice(s) to New Hampshire;

d. the trial court failed to appoint defense

counsel in accordance with the IAD, and the

delay prevented a proper defense and

discovery;

e. the trial court ordered the sentence to run

concurrently and failed to credit Campney

with time served while he was held under the

capias warrant;

4. denial of due process when Campney was denied

timely discovery, including exculpatory evidence,

and was forced to obtain this evidence through

administrative and civil proceedings;

5. denial of effective assistance of trial counsel

arising from counsel’s failure to obtain

exculpatory evidence;

6. denial of effective assistance of appellate

counsel; 

7. prosecutorial misconduct arising from the

prosecution’s failure to provide discovery and

misleading the court;

8. denial of the right to a fair trial when the trial

court sought out a theory of arrest that was not

supported by the court record or set forth by the

prosecution;

9. denial of meaningful access to the courts when

Campney was transported to New York while his

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direct appeal was pending, thereby denying him

effective assistance of appellate counsel,

preventing him from assisting in the preparation

of his appeal and hindering him from appealing his

pro se motions;

10. actual innocence; through administrative and civil

proceedings Campney has discovered documents that

will demonstrate his actual innocence of the

crimes for which he was convicted.

The NHSC declined to accept his notice of appeal on January 26,

2007. 

Campney filed the instant petition on September 20, 2006 in

which he raised the following eleven grounds for federal habeas

corpus relief:

1. illegal arrest when Campney was arrested without a

warrant and without probable cause (Ground 1);

2. illegal search and seizure when the search and

seizure was conducted after the arrest, and

evidence obtained was used as grounds for the

arrest (Ground 2);

3. violations of the Interstate Agreement on

Detainers (“IAD”), when: 

a. the trial court refused to dismiss the

indictments against Campney after he

repeatedly notified New Hampshire of his

“place of imprisonment” and his request for

final disposition to be made on the New

Hampshire indictments; 

b. the State of New York and/or New Hampshire

misplaced one of more of the notices, thereby

causing Campney to be tried in New Hampshire

Case 1:06-cv-00353-SM Document 18 Filed 06/07/07 Page 5 of 17
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more than 180 days after “delivery” of the

notices;

c. the State of New York failed to provide the

notice(s) to New Hampshire;

d. the trial court acted improperly by granting

a continuance without a hearing in open court

and outside the presence of both defendant

and defense counsel;

e. the trial court failed to appoint defense

counsel in accordance with the IAD, and the

delay prevented a proper defense and

discovery;

f. the trial court acted improperly by granting

defense counsel’s request to dismiss the

selected jury, despite defendant’s request

for a trial without further delay;

g. the trial court ordered the sentence to run

concurrently and failed to credit Campney

with time served while he was held under a

capias warrant (Ground 3);

4. denial of due process when Campney was denied

timely discovery, including exculpatory evidence,

and was forced to obtain this evidence through

administrative and civil proceedings (Ground 4);

5. denial of effective assistance of trial counsel

arising from counsel’s failure to obtain

exculpatory evidence (Ground 5);

6. denial of effective assistance of appellate

counsel (Ground 6); 

7. prosecutorial misconduct arising from the

prosecution’s failure to provide discovery and

misleading the court (Ground 7);

Case 1:06-cv-00353-SM Document 18 Filed 06/07/07 Page 6 of 17
2Because Ground 10 reiterates claims set forth in Grounds 5-

6, I construe Ground 10 to allege only a denial of the right to

cross-examination.

7

8. denial of the right to a fair trial when the trial

court “sought out a theory of arrest” that was not

supported by the court record or set forth by the

prosecution (Ground 8);

9. denial of meaningful access to the courts when

Campney was transported to New York while his

direct appeal was pending, thereby denying him

effective assistance of appellate counsel,

preventing him from assisting in the preparation

of his appeal and hindering him from appealing his

pro se motions (Ground 9);

10. denial of the right to cross-examine witnesses

(Ground 10)2; and

11. actual innocence; through administrative and civil

proceedings Campney has discovered documents that

will demonstrate his actual innocence of the

crimes for which he was convicted (Ground 11).

With the exception of Ground 10, his federal claims are identical

to the claims raised in his initial state court appeal.

Given that Campney’s federal petition contained one

unexhausted claim, this Court stayed the proceedings and held the

petition in abeyance, thereby affording him an opportunity to

exhaust state remedies as to Ground 10. In addition, this Court

recommended dismissal of Grounds 1-2, 3(a-d, f-g), 9 and 11 for

failure to state a claim upon which federal habeas corpus relief

may be granted (document nos. 10 and 15). The recommendations

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were approved on May 4, 2007 (document no. 17).

In an attempt to exhaust Ground 10, Campney filed an appeal

with the NHSC on March 16, 2007 and raised the following claim:

whether the trial court erred in denying his motion to vacate

when Campney was denied of the right to cross-examine witnesses. 

The NHSC denied his appeal on April 12, 2007, holding that to the

extent Campney sought review of any order issued by the superior

court from 2004 through 2006, his appeal was denied as untimely. 

The court further held that to the extent Campney intended to

file a petition for original jurisdiction, his petition was

dismissed without prejudice to Campney seeking relief from the

superior court. Having requested this Court to lift the stay of

proceedings (document no. 16), Campney now seeks preliminary

review his 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,

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

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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, Campney 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 BHCF and

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

the exhaustion requirement but only as to Grounds 3(e), 4-8 and

10 of the petition.

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 Clements v.

Maloney, No. 05-2411, 2007 WL 1241253, at *3 (1st Cir. Apr. 30,

2007); Lanigan v. Maloney, 853 F.2d 40, 42 (1st Cir. 1988), cert.

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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, Campney raises eleven grounds for

federal habeas corpus relief. As previously mentioned, Grounds

1-2, 3(a-d, f-g), 9 and 11 of the petition were dismissed for

failure to state a claim upon which federal habeas corpus relief

may be granted (document nos. 10, 15 and 17). For the reasons

stated below, the remaining claims are exhausted for purposes of

preliminary review.

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A. Exhausted Claims

 Grounds 3(e), 4-8 and 10 are similar to the claims

presented by Campney in his appeals presented to the NHSC for

review and therefore appear to be exhausted. While Campney could

have presented his federal constitutional issues in a more direct

and precise manner, his state court appeals were minimally

sufficient to apprise the NHSC of the federal constitutional

dimension of his claims.

1. Denial of the Right to Counsel

under the IAD

Ground 3(e) of the petition alleges that Campney was denied

the right to counsel under the IAD and that the delay in

obtaining counsel prevented him from preparing a proper defense

and obtaining discovery.

The Interstate Agreement of Detainers Act, 18 U.S.C. app. §

2 (2000)(“IAD”), is a compact entered into by forty-eight states,

the District of Columbia, and the federal government to establish

procedures for resolution of one jurisdiction’s outstanding

criminal charges against another jurisdiction’s prisoner. See

New York v. Hill, 528 U.S. 110, 111 (2000). Insofar as it is “‘a

congressionally sanctioned interstate compact’ within the Compact

Clause of the United States Constitution, Art I, § 10, cl. 3, the

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IAD is a federal law subject to federal construction.” Id.

(quoting Carchman v. Nash, 473 U.S. 716, 719 (1985)). Federal

habeas review of IAD violations is limited, however, to errors

constituting “a fundamental defect which inherently results in a

complete miscarriage of justice [or] an omission inconsistent

with the rudimentary demands of fair procedure.” Reed v. Farley,

512 U.S. 339, 348 (1994)(quoting Hill v. United States, 368 U.S.

424, 428 (1962)); accord Cross v. Cunningham, 87 F.3d 586, 587-88

(1st Cir. 1996). Here, Campney alleges that by refusing to

appoint him counsel in accordance with the IAD, the trial court

impaired his ability to prepare a defense. The record reveals

that Campney presented this claim on appeal to the NHSC. Without

making a determination as to whether the denial of counsel caused

a “fundamental defect” resulting in the “complete miscarriage of

justice,” I conclude that Campney has demonstrated exhaustion of

Ground 3(e) for purposes of federal habeas review.

2. Denial of the Right to Timely 

Discovery and Exculpatory Evidence

Construed liberally, Ground 4 alleges that Campney was

denied the right to timely discovery, including exculpatory

evidence, in violation of his right to due process and a fair

trial. A claim that a prosecutor violated state discovery rules

Case 1:06-cv-00353-SM Document 18 Filed 06/07/07 Page 12 of 17
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involves an issue of state law and generally is not cognizable

under federal habeas review. See Estelle v. McGuire, 502 U.S.

62, 67-68 (1991) (holding that “it is not the province of a

federal habeas court to reexamine state-court determinations on

state-law questions.”). I therefore liberally construe Ground 4

to allege that Campney was denied exculpatory evidence in

violation of his federally protected rights to due process and a

fair trial. Because the record demonstrates that he presented

this claim on appeal to the NHSC, I conclude that he has

demonstrated exhaustion of Ground 4 for purposes of federal

habeas review.

3. Ineffective Assistance of Counsel

 at Trial and on Direct Appeal

Construed liberally, Grounds 5 and 6 allege that Campney was

denied the Sixth Amendment right to effective assistance of

counsel at trial and on direct appeal. See Strickland v.

Washington, 466 U.S. 668, 687-88 (1984)(holding that the Sixth

Amendment guarantees criminal defendants the right to effective

assistance of counsel at trial); Smith v. Ohio Dep’t of Rehab.

and Corr., 463 F.3d 426, 433 (6th Cir. 2006) (holding “[t]here is

no doubt that there is a constitutional right to effective

assistance of counsel during a direct appeal as of right.”). The

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record reveals that Campney presented each of the above claims on

appeal to the NHSC. Accordingly, I conclude that he has

demonstrated exhaustion of Grounds 5 and 6 for purposes of

federal habeas review.

4. Prosecutorial Misconduct

Construed liberally, Ground 7 alleges that Campney was

denied the right to due process and a fair trial when the

prosecution failed to provide discovery and misled the trial

court. On habeas review, a claim of prosecutorial misconduct is

reviewed deferentially. See Bowling v. Parker, 344 F.3d 487, 512

(6th Cir. 2003) (citing Darden v. Wainwright, 477 U.S. 168, 181

(1986)). Without making a determination as to whether the

alleged prosecutorial misconduct rises to the level of

constitutional dimension, I conclude that Campney has

demonstrated exhaustion of this claim for purposes of preliminary

review.

5. Denial of the Right to a Fair Trial

Arising from Trial Court Error

Ground 8 of the petition alleges that Campney was denied the

right to a fair trial when the trial court sought out a theory of

arrest that was not supported by the court record or set forth by

the prosecution. Construed liberally, Ground 8 alleges that the

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trial court error rendered Campney’s trial fundamentally unfair. 

“Trial court errors in state procedure and/or evidentiary law do

not rise to the level of federal constitutional claims warranting

relief in a habeas action unless the error renders the proceeding

so fundamentally unfair as to deprive the petitioner of due

process under the Fourteenth Amendment.” Morgan v. Renico, No.

04-CV-74685-DT, 2007 WL 522703, at *4, (E.D. Mich. Feb. 14,

2007). Without making a determination as to whether the alleged

trial court error rises to the level of constitutional dimension,

I conclude that Campney has demonstrated exhaustion of this claim

for purposes of preliminary review.

6. Denial of the Right to

Cross-Examine Witnesses

Construed liberally, Ground 10 alleges that during trial

Campney was denied the right to confront and cross-examine

witnesses against him. See Michigan v. Lucas, 500 U.S. 145, 156

(1991) (holding that “[t]he right of cross-examination is derived

from the Sixth Amendment’s language guaranteeing the right of the

accused to confront witnesses against him.). 

The record indicates that Campney presented this claim in an

appeal filed with the NHSC on March 16, 2007, which was denied on

April 12, 2007 as untimely. Without commenting on the timeliness

Case 1:06-cv-00353-SM Document 18 Filed 06/07/07 Page 15 of 17
3Due to the voluminous supporting documents, the court is

only providing copies of the aforementioned documents.

16

of Campney’s state court appeal, I conclude that for purposes of

preliminary review he has demonstrated exhaustion of Ground 10.

Conclusion

For the reasons stated above, I order the petition served on

the respondents as Grounds 3(e), 4-8 and 10.

Accordingly, the petition shall be served on the Warden of

the BHCF, as the person having current custody of Campney, and

the Attorney General of the State of New Hampshire, the state

where the judgment at issue was entered. See Habeas Rule 2.

As to the Warden of the BHCF, the Clerk’s Office is directed

to forward to the United States Marshal for the District of New

Hampshire (the “U.S. Marshal’s Office”) copies of this order and

portions3 of the habeas corpus petition (document nos. 1, 5-6, 7-

1, 12-13 and 16). 

Upon receipt of the necessary documentation, the U.S.

Marshal’s Office shall effect service upon respondent by

delivering the documents to be served to the Warden of the BHCF. 

See Fed. R. Civ. P. 4(e). 

The Clerk’s Office is further directed to serve the New

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Hampshire Office of the Attorney General, as provided in the

Agreement On Acceptance Of Service, copies of this order and

portions of the habeas corpus petition (document nos. 1, 5-6, 7-

1, 12-13 and 16). 

Respondents 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

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: June 7, 2007

cc: Randy S. Campney, Sr. pro se

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