UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Joshua M. Colbath

v. Civil No. 06-cv-350-SM

Warden, Lakes Region Facility

O R D E R

Pro se petitioner Joshua M. Colbath, Jr. has filed a

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

2254, challenging his New Hampshire state court confinement

(document no. 1). 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). 

For the reasons stated below, I find that the petition does

not at this time make a facially sufficient showing that Colbath

is entitled to relief. I therefore order him to amend the

petition to demonstrate that each of the claims therein has been

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properly exhausted before I will direct that the petition be

answered.

Background

Having pled guilty to a violation of probation on March 1,

2006, Colbath was sentenced to a term of imprisonment by the New

Hampshire Superior Court (Strafford County). The Agreement on

Violation of Probation provides:

The defendant pleads chargeable to the Violation of

Probation filed on February 15, 2006. The defendant is

discharged from the Academy Program and the sentence of

2 1⁄2 - 5 years stand committed is imposed. The

defendant has seventy (70) days of pretrial credit. 

The balance of the minimum sentence shall be suspended

upon the defendant’s acceptance into a long-term

substance abuse treatment program. Upon successful

completion of the long-term program, the balance of the

maximum sentence shall be suspended. The violation of

probation dated January 12, 2006 is withdrawn.

Colbath is currently incarcerated at the Lakes Region Facility in

Laconia, New Hampshire. He has been accepted into two substance

abuse treatment programs allegedly approved by the New Hampshire

Adult Parole Board (“Parole Board”).

In June of 2006, Colbath filed a habeas corpus petition with

the New Hampshire Superior Court (Belknap County). Although he

has not provided this Court with a copy of the petition, he

broadly alleges that he raised the following claims: (1) denial

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of the right to due process; (2) denial of the right to equal

protection; and (3) ineffective assistance of counsel. His

petition was dismissed on August 3, 2006. In dismissing the

petition, the superior court held:

The defendant has no basis to seek his immediate

release from the State Prison. Nothing in the plea

hearing in Strafford County on March 1, 2006, which the

Court has reviewed, would give the defendant an

expectation that he would be released from the prison

prior to the time he is actually physically admitted to

the long-term substance abuse treatment program at the

Phoenix House in Dublin, New Hampshire. Defendant has

been accepted at Phoenix House and awaits an available

bed. The balance of his minimum sentence is suspended

and he must be paroled to the program by the Parole

Board. The Department of Corrections is prepared to

parole, and has actually approved parole of the

defendant effective upon an available bed for the

defendant at Phoenix House. Apparently, the

expectation is that a bed will be available in

September, based on the current wait list. Upon

successful completion of the long-term program, the

Court did suspend the balance of the maximum of the

defendant’s sentence.

There is no indication in the record that Colbath sought further

appellate review or filed an appeal with the New Hampshire

Supreme Court (“NHSC”).

In his federal petition, Colbath alleges three grounds for

habeas corpus relief:

1. denial of due process and breach of the plea

agreement when Colbath was not permitted to attend

a substance abuse treatment program approved by

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the Parole Board (Ground 1);

2. denial of effective assistance of trial counsel

during Colbath’s plea hearing and during the

negotiation of his plea agreement (Ground 2); and

3. denial of the right to equal protection when the

New Hampshire Department of Corrections failed to

follow Colbath’s sentencing order, made

misrepresentations to the Parole Board and

manipulated prison policies and procedures (Ground

3).

While Colbath alleges that he has exhausted state remedies with

regard to the claims raised in his federal petition, there is no

indication that he presented the claims to the NHSC for review.

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

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).

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Discussion

I. Custody and Exhaustion

To be eligible for habeas relief, Colbath 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 Lakes

Region Facility in Laconia, New Hampshire and thus is in custody. 

However, Colbath fails to satisfy the second requirement because

the petition does not demonstrate that he has fully exhausted his

state remedies with regard to each claim raised in his federal

petition. Nor has he alleged any facts to suggest that effective

state court remedies are unavailable to him.

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

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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, Colbath raises three grounds for 

federal habeas corpus relief. There is no indication that he

presented the claims, or the federal nature of the claims, to the

NHSC for review. Accordingly, he has failed to demonstrate

exhaustion of state remedies as to the claims raised in his

federal petition. To demonstrate exhaustion of his claims,

Colbath must provide this Court with copies of any motions,

petitions, notices of appeal, briefs and orders and/or final

judgments pertaining to his state court proceedings. See Smith

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v. Digmon, 434 U.S. 332, 333 (1978) (discussing documents which

would enable a federal court to determine whether the grounds

supporting the habeas petition had been presented for review in

the state courts). In particular, he should provide this Court

with a copy of any appeals filed with the NHSC.

Conclusion

For the reasons stated above and because the claims raised

in the petition have not been exhausted, I will allow Colbath an

opportunity to amend his petition to demonstrate exhaustion of

state remedies with regard to his claims and the federal nature

of those claims. To make this showing, he is instructed to

provide the court with a copy of any notice(s) of appeal filed

with the NHSC and any other relevant state court pleadings,

orders or decisions within thirty (30) days. 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: October 3, 2006

cc: Joshua M. Colbath, pro se

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