UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

David Fischer

v. Civil No. 05-cv-035-SM

New Hampshire Parole Board

O R D E R

David Fischer, proceeding pro se, filed a petition for a

writ of habeas corpus (document no. 1) pursuant to 28 U.S.C. §

2254. The petition came before this Court for preliminary review

to determine whether it was facially sufficient to require that

it be answered. See Rule 4 of the Rules Governing § 2254

Proceedings (“§ 2254 Rule”) (requiring initial review to

determine whether the petition is facially valid). Having

determined that the petition as initially filed demonstrated

neither that the petition was timely nor that it was completely

exhausted, I directed Fischer to amend his petition to

demonstrate both timeliness and exhaustion in an Order dated

April 6, 2005 (document no. 2). In response to the April 6

Order, Fischer filed a “Motion to Amend Petition for Writ of

Habeas Corpus to Show Timeliness of Petition” (document no. 3)

and “Motion to Amend Petition for Writ of Habeas Corpus to Show 

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1Although Fischer’s most recent pleading is a letter and not

technically in compliance this Court’s local rules governing the

filing of motions, see United States District Court for the

District of New Hampshire Local Rule 7.1, I will accept it as

sufficient to request the removal of Fischer’s unexhausted claims

from this action. 

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that State Remedies Have Been Exhausted” (document no. 4), both

of which were accepted as addenda to the original petition. 

Upon review of the amendments, I found that Fischer had

demonstrated the timeliness of his petition, but had not yet

demonstrated exhaustion of three of the eleven claims presented

in his petition. Accordingly, on May 16, 2005, I directed

Fischer to further amend to demonstrate exhaustion, forego his

unexhausted claims, or seek a stay in order to exhaust his

unexhausted claims (document no. 5). On June 15, 2005, Fischer

filed a pleading advising this Court that he would forego his

three unexhausted claims and proceed with his eight exhausted

claims (document no. 6).1 

With his three unexhausted claims removed from the petition,

I find that Fischer has now demonstrated exhaustion of all of the

claims before this Court. Accordingly, the petition shall be

served upon the New Hampshire State Parole Board, which shall

file an answer or other pleading in response to the allegations

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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 by

certified mail, return receipt requested, copies of this Order,

the two prior orders to amend issued by this Court (document nos.

2 & 5), and the original habeas petition and addenda thereto

(document nos. 1, 3, 4 & 6). Respondent shall answer or

otherwise plead within thirty (30) days of the date of this

Order. The answer shall comply with the requirements of § 2254

Rule 5 (setting forth contents of the answer). 

Upon receipt of the response, the Court will determine

whether a hearing is warranted. See § 2254 Rule 8 (providing

circumstances under which a hearing is appropriate). 

Petitioner is referred to Rule 5 of the Federal Rules of

Civil Procedure, 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’ attorney(s). 

SO ORDERED. 

_______________________________

James R. Muirhead

United States Magistrate Judge

Date: June 23, 2005

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cc: David Fischer, pro se

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