UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Daniel E. Ayer, Sr.

v. Civil No. 07-cv-304-SM

Richard Gerry, Warden,

New Hampshire State Prison

REPORT AND RECOMMENDATION

Before the Court is Daniel Ayer’s petition for a writ of

habeas corpus, filed pursuant to 28 U.S.C. § 2254 (document no.

1). Ayer challenges the constitutionality of his State

conviction for first degree murder. The matter is before me for

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

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

determine whether the petition is facially valid); United States

District Court for the District of New Hampshire Local Rule

(“LR”) 4.3(d)(2) (authorizing magistrate judge to preliminarily

review filings by inmates in accordance with 28 U.S.S. §

1915A(a)). 

Standard of Review

Under this Court’s local rules, when an incarcerated

plaintiff commences an action pro se and in forma pauperis, the

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magistrate judge is directed to conduct a preliminary review. LR

4.3(d)(2). In conducting the preliminary review, the Court

construes pro se pleadings liberally, however inartfully pleaded. 

See Erickson v. Pardus, ___ U.S. ___, 127 S. Ct. 2197, 2200

(2007) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and

Haines v. Kerner, 404 U.S. 519, 520-21 (1972) to construe pro se

pleadings liberally in favor of the pro se party). “The policy

behind affording pro se plaintiffs liberal interpretation is that

if they present sufficient facts, the court may intuit the

correct cause of action, even if it was imperfectly pled.” See

Castro v. United States, 540 U.S. 375, 381 (2003) (noting that

courts may construe pro se pleadings so as to avoid

inappropriately stringent rules and unnecessary dismissals of

claims); Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). 

All of the factual assertions made by a pro se plaintiff and

inferences reasonably drawn therefrom must be accepted as true. 

See id. This review ensures that pro se pleadings are given fair

and meaningful consideration.

Background

Daniel Ayer was convicted of first degree murder in the New

Hampshire Superior Court. On June 28, 2004, he was sentenced to

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1This was Ayer’s second trial on the murder charge. His

first trial resulted in a conviction, which was overturned by the

New Hampshire Supreme Court on the basis that Ayer had been

denied the right to represent himself in that trial. Before his

retrial, Ayer sought, unsuccessfully, to preclude a second trial

on double jeopardy grounds. 

2The claims as identified here will be considered to be the

claims raised in the petition for all purposes. If Ayer

disagrees with the claims as identified, he must do so by

objecting to this Report and Recommendation or by properly moving

to amend his petition.

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life in prison without the possibility of parole.1 Ayer is

currently serving that sentence at the New Hampshire State

Prison. Ayer took a direct appeal to the New Hampshire Supreme

Court (“NHSC”), which affirmed his conviction on December 7,

2006. Ayer filed an unsuccessful motion to reconsider that

decision in the NHSC. This petition followed, raising the

following claims as grounds for relief:2

1. Ayer was denied his Fifth, Sixth, and Fourteenth 

Amendment right to represent himself at trial when the 

trial court “forced” him to have court-appointed 

counsel;

2. Ayer was denied his Sixth and Fourteenth Amendment 

right to the effective assistance of counsel when his 

appointed trial counsel:

a. Refused to file an interlocutory appeal of the 

trial court’s denial of Ayer’s right to proceed 

pro se at trial;

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3The victim in Ayer’s case was a DCYF caseworker who had

been assigned to work with Ayer and his family, and who Ayer felt

presented a threat to his relationship with his son.

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b. Did not preserve, for the appellate record in the 

case, Ayer’s objection to being provided with 

court-appointed counsel;

c. Refused to obtain weapons and forensics experts 

who could have provided exculpatory information;

d. Refused to present defenses based on Ayer’s State 

constitutional right to bear arms in defense of 

himself, other people, or his property and his 

State constitutional right to revolution;

e. Refused to call as witnesses at petitioner’s trial

individuals who had been involved in protests 

against the New Hampshire Department of Health and

Human Services Division of Children, Youth, and 

Families (“DCYF”);3

f. Refused to call as witnesses at petitioner’s trial

employees of DCYF who were of the opinion that 

DCYF was not effectively performing its intended 

functions;

g. Refused to investigate child abuse allegations 

against DCYF from 1998 to use in Ayer’s defense at

trial; and

h. At Ayer’s retrial, read a transcript of the 

testimony of a witness at the first trial who was 

deceased at the time of the second trial;

3. Ayer’s Sixth and Fourteenth Amendment right to confront

the witnesses and evidence against him was violated 

when the trial court admitted testimony of a witness 

who had died between Ayer’s first and second trials, 

and whose testimony was recorded at the first trial;

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4. Ayer’s Fifth, Sixth, and Fourteenth Amendment rights to

Due Process and a fair trial were violated when the 

trial court denied Ayer the ability to present certain 

defenses to the jury for consideration;

5. Ayer’s Fifth, Sixth, and Fourteenth Amendment rights to

Due Process and a fair trial were violated when the 

trial court refused to instruct the jury regarding the 

lesser offense of provocation manslaughter;

6. Ayer’s Fifth and Fourteenth Amendment rights to Due 

Process and not to incriminate himself were violated 

when his statements were admitted at trial even though 

he had not voluntarily waived the rights afforded to 

him by Miranda v. Arizona, 396 U.S. 868 (1969);

7. Ayer’s Fifth and Fourteenth Amendment rights to Due 

Process and not to incriminate himself were violated 

when his statements were admitted at trial even though 

he had invoked his right to counsel prior to 

questioning, but was not afforded counsel at that time;

8. Ayer’s Fourth Amendment right not to be subjected to 

unreasonable searches was violated when the trial court

issued a search warrant for Ayer’s property that 

relied, for probable cause, on statements Ayer had 

made, without having validly waived his Miranda rights,

and after he had invoked his right to counsel;

9. Ayer’s Fifth and Fourteenth Amendment Due Process 

rights were violated when the trial court admitted in 

evidence firearms, weapons, and ammunition that was 

found in Ayer’s truck even though the items were not 

used in the commission of the crime, were highly 

prejudicial, and were not introduced for a legitimate 

purpose; and

10. Ayer’s Sixth and Fourteenth Amendment right to confront

the witnesses against him was violated when the trial 

court erroneously admitted certain testimonial 

statements made by Ayer’s wife, who did not testify, 

through another witness, as excited utterances.

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Discussion

I. Custody and Exhaustion

To be eligible for habeas relief, Ayer must show that he is

both in custody and has exhausted all State court remedies or

that he is excused from exhausting those remedies because of an

absence of available or effective State corrective processes. 

See 28 U.S.C. § 2254(a) & (b); see also Adelson v. DiPaolo, 131

F.3d 259, 261 (1st Cir. 1997) (citing authority to explain the

exhaustion principle). Ayer has satisfied the first requirement,

as he is currently incarcerated. 

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 claims. See Lanigan v. Maloney, 853 F.2d 40, 42

(1st Cir. 1988) (“habeas corpus petitioner must have presented

the substance of his federal constitutional claim[s] to the State

appellate courts so that the State had the first chance to

correct the claimed constitutional error”); see also Picard v.

Connor, 404 U.S. 270, 275 (1971) (requiring petitioner to have

fairly presented the federal nature of his claims to the State

courts to give them the first opportunity to remedy the claimed

constitutional error). However, Ayer’s petition does not

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demonstrate satisfaction of the exhaustion requirement for each

of the claims raised.

II. Disposition of Claims

A. Fourth Amendment Claim (Claim #8)

Where State courts have provided an opportunity to a federal

habeas petitioner for full and fair litigation of a Fourth

Amendment claim, the petitioner cannot obtain habeas corpus

relief on the grounds that evidence obtained as a result of an

unconstitutional search or seizure was introduced at his trial. 

See Stone v. Powell, 428 U.S. 465, 482 (1976); Sanna v. DiPaolo,

265 F.3d 1, 8 (1st Cir. 2001) (“a federal habeas court ordinarily

cannot revisit a State court’s disposition of a prisoner’s Fourth

Amendment claims.”). Ayer alleges, in claim 8 as enumerated

above, that his Fourth Amendment rights were violated when a

search warrant was improperly issued, the search made pursuant to

that warrant yielded incriminating evidence, and the State courts

failed to suppress the evidence. Ayer’s petition indicates that

he was provided with the opportunity to litigate his Fourth

Amendment issues in the State courts and that he did, in fact,

fully litigate the issues. Accordingly, I find that under Stone

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and Sanna, the Fourth Amendment claim in this petition is not

cognizable, and I recommend that it be dismissed.

B. Exhausted Claims

After trial, Ayer appealed his conviction to the NHSC,

raising a number of issues, including the federal constitutional

nature of those issues, to that court for consideration. A

review of the NHSC’s opinion affirming Ayer’s conviction, dated

December 7, 2006, as well as Ayer’s subsequent motions to the

NHSC, demonstrate exhaustion of the claims numbered 1, 3-7, 9 and

10 above. Accordingly, I find that those claims are able to

proceed at this time, but, as fully explained below, will be

stayed in an Order issued simultaneously with this Report and

Recommendation (the “Simultaneous Order”).

C. Unexhausted Claims (Claims #2a-2h) 

In his petition, Ayer concedes that his claims alleging that

his court-appointed attorneys provided him with ineffective

assistance of counsel have not been exhausted. Ayer asserts that

raising these claims in his State appeal would have presented a

conflict of interest. Ayer does not allege that he was denied

conflict-free representation on appeal, or that he attempted to

seek the withdrawal or replacement of his appellate counsel in

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4I presume that the conflict alleged by Ayer existed because

trial counsel and appellate counsel were both employed by the New

Hampshire Public Defender, and that therefore, appellate counsel

could not present a conflict-free argument regarding the

ineffective assistance of trial counsel. Such a conflict,

however, if it exists, is easily resolved by petitioning the NHSC

for new appellate counsel. Because Ayer has not demonstrated the

denial of such a motion by the NHSC, or that he was somehow

prevented from raising this issue in the State courts, I find

that Ayer has not alleged that he was denied access to the State

courts or denied effective State court remedies for his claims

alleging ineffective assistance of counsel.

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order to avoid any conflict that may have arisen. Further,

appellate counsel, upon discovering a conflict of interest, would

have been obligated to withdraw from the matter.4 

I find that Ayer has failed to exhaust his State court

remedies for his ineffective assistance of counsel, numbered 2a -

2h above. Accordingly, in my Simultaneous Order, I will direct

Ayer to amend his complaint to demonstrate exhaustion of those

claims. See Smith v. Digmon, 434 U.S. 332, 333 (1978) (listing

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 order to do so, Ayer will have

to return to the State trial court to litigate the claims and, if

he is unsuccessful there, will have to appeal the matter to the

NHSC to give that court the opportunity to rule on the federal

constitutional issues raised. I will grant a stay of the

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exhausted cognizable claims in this action to allow Ayer the

opportunity to return to the State courts if he wishes to

eventually present his ineffective assistance of counsel claims

here.

D. Mixed Petition

“[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, 131 F.3d at 261 (emphasis added). As

Ayer’s petition contains both exhausted and unexhausted claims,

if he were to press his petition without first exhausting all of

the claims contained therein, I would have to recommend dismissal

of the entire petition. See Nowaczyk v. Warden, N.H. State

Prison, 299 F.3d 69, 75 (1st Cir. 2002) (citing Rose v. Lundy,

455 U.S. 509, 513-21 (1982)). Where a petition contains both

exhausted and unexhausted claims, the proper course of action is

to stay the petition pending the exhaustion of all of the claims

contained therein. See Rhines v. Weber, 544 U.S. 269, 278 (2005)

(a district court should stay a mixed petition containing both

exhausted and unexhausted claims if the petitioner “had good

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cause for his failure to exhaust, his unexhausted claims are

potentially meritorious, and there is no indication that the

petitioner engaged in intentionally dilatory litigation

tactics.”). Accordingly, to pursue the claims raised in this

Court, Ayer must exhaust his claims alleging ineffective

assistance of counsel. I will direct, in my Simultaneous Order,

that this matter be stayed in order to allow Ayer the opportunity

to return to the State courts to complete exhaustion.

It should be noted that Ayer has the option of foregoing his

unexhausted claims and requesting that this Court proceed

promptly with consideration of only his exhausted claims. Ayer

should be advised, however, that if he does forego any of his

claims, he will likely waive ever having the foregone claims

considered by this Court due to the prohibition against second or

successive federal habeas petitions. See 28 U.S.C. § 2244; Pratt

v. United States, 129 F.3d 54, 56-58 (1st Cir. 1997).

Conclusion

As stated above, I recommend that claim 8, alleging a

violation of Ayer’s Fourth Amendment rights, be dismissed from

this petition. In my Simultaneous Order, I will direct that the

exhausted claims, numbered 1, 3-7, 9 and 10, be stayed pending

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the exhaustion of claims 2a-2h and the filing of an amendment to

Ayer’s petition demonstrating complete exhaustion of those

claims, or pending Ayer’s notice to this Court that he has

elected to forego his unexhausted claims. 

Any objections to this Report and Recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

Law Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992);

United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: November 7, 2007

cc: Daniel E. Ayer, Sr., pro se

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