UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Dwayne Hearns

v. Civil No. 05-cv-413-SM

Warden, New Hampshire State Prison

O R D E R

Pro se petitioner Dwayne Hearns requests this Court to lift

the stay of proceedings and review his habeas corpus petition

filed pursuant to 28 U.S.C. § 2254 (document nos. 1 and 11). See

Rule 4 of the Rules Governing § 2254 Proceedings (requiring

initial review to determine whether petition is facially valid

and may be served); see also United States District Court for the

District of New Hampshire Local Rules 4.3(d)(authorizing the

magistrate judge to preliminarily review pro se pleadings). 

By order of December 20, 2005, I ordered the proceedings

stayed and the petition held in abeyance, thereby affording

Hearns an opportunity to exhaust state court remedies as to

Ground Four of the petition. Ground Four challenges the

constitutionality of the consecutive sentences imposed upon

Hearns. He now has filed a submission (document no. 11),

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requesting this Court to lift the stay on the basis that he has

demonstrated exhaustion of Ground Four. 

While the record reveals that Hearns filed an appeal with

the New Hampshire Supreme Court (“NHSC”) in which he challenged

the constitutionality of his consecutive sentences, there is no

indication that the NHSC reviewed his appeal. To the contrary,

the record indicates, and Hearns concedes, that the NHSC deferred

ruling upon his appeal pending the court’s decision in Duquette

v. Warden, NH State Prison., No. 2006-079, 2007 WL 120602 (N.H.

Jan. 19, 2007). Although Hearns filed an amicus curiae brief in

Duquette and raised the issue of consecutive sentencing, he did

not present the factual basis of his claim. Thus, his

presentation of the issue before the NHSC by amicus curiae does

not satisfy the exhaustion requirement. See Rosa v. McCray, 396

F.3d 210, 217 (2d Cir. 2005)(holding that a petitioner satisfies

the fair presentation aspect of the exhaustion requirement by

presenting the essential factual and legal premises of his

federal constitutional claim to the state’s highest court). See

also Granger v. Hurt, No. 05-3275, 2007 WL 419637 at *5 (6th Cir.

Feb. 8, 2007)(unpublished)(in order for a claim to be exhausted,

the state appellate court must be given the opportunity to rule

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on both the factual and legal basis of the claim).

Accordingly, the proceedings shall be stayed and the

petition held in abeyance pending complete exhaustion of state

remedies. The stay will be issued under the following two

conditions:

1. Hearns is ordered to contact this Court every

90 days, beginning from the date of entry of this

Order, and inform this Court of the status and

pendency of his state court proceedings and the

disposition of any appeal or related matter. 

2. Within 30 days following any ruling and/or

notification by the New Hampshire Supreme Court on

the claim at issue, and the exhaustion of such

claim, Hearns must notify this Court of the ruling

and submit any additional briefs or other

pleadings filed in the state court proceedings; he

must also file a request with this Court, stating

that his state court matter has been disposed of

and that he wishes to terminate the stay and have

this Court further consider his petition.

Failure to comply with either condition may result in

dismissal of the petition without prejudice.

SO ORDERED.

____________________________________

James R. Muirhead 

United States Magistrate Judge

Date: March 27, 2007

cc: Dwayne Hearns, pro se

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