UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Otis Daniels

v. Civil No. 05-cv-348-PB

Larry Blaisdell, Warden, et al.

O R D E R

Before the Court is Otis Daniels’ petition for a writ of

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

1). The petition 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); 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).

Standard of Review

Under this Court’s local rules, when an incarcerated

plaintiff commences an action pro se, the magistrate judge is

directed to conduct a preliminary review and to prepare a report

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and recommendation determining whether the action or any portion

thereof should be dismissed because:

(i) the allegation of poverty is untrue, the 

action is frivolous, malicious, or fails to state 

a claim upon which relief may be granted, or seeks 

monetary relief from a defendant who is immune 

from such relief under 28 U.S.C. § 1915A(b); or

(ii) it fails to establish subject matter 

jurisdiction under Fed. R. Civ. P. 12(b)(1).

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

construes pro se pleadings liberally. See Ayala Serrano v.

Lebron Gonzales, 909 F.2d 8, 15 (1st Cir. 1990) (following

Estelle v. Gamble, 429 U.S. 97, 106 (1976) 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.” Ahmed

v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997), cert. denied,

Ahmed v. Greenwood, 522 U.S. 1148 (1998).

At this preliminary stage of review, all factual assertions

made by the plaintiff and inferences reasonably drawn therefrom

must be accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3

(1st Cir. 1996) (stating the “failure to state a claim” standard

of review and explaining that all “well-pleaded factual

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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. Dir. of C.I.A., 843

F.2d 46, 49 (1st Cir. 1988).

Background

Daniels is an inmate at the Northern New Hampshire

Correctional Facility. He was convicted on September 25, 2002 of

felonious sexual assault and sentenced to three and a half to

seven years in prison. Daniels’ conviction was affirmed by the

New Hampshire Supreme Court (“NHSC”) on November 24, 2004. The

appeal to the NHSC contained one issue regarding the failure of

the trial court to suppress out of court identification of

Daniels by the complaining witnesses, in violation of Daniels’

due process rights. Petitioner now alleges a number of

additional federal constitutional issues, including ones that

were ripe for appellate review and raised in the notice of appeal

but not briefed in his appeal to the NHSC. The issues raised in

this petition are as follows:

- Daniels was denied due process rights guaranteed by the

Fifth and Fourteenth Amendments when the trial court 

failed to suppress the out-of-court identification of 

him using a suggestive photographic line-up;

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- Daniels was denied due process rights guaranteed by the

Fifth and Fourteenth Amendments when he was denied 

court funds to consult with and utilize an expert in 

suggestive identification, cross-racial identification 

and eyewitness identification in contesting the 

admissibility of the out-of-court identification made 

pursuant to the allegedly suggestive photographic lineup;

- Daniels was denied his Sixth Amendment right to 

confrontation when he was denied the use of documentary

and testimonial impeachment evidence;

- Daniels was denied his Fifth and Fourteenth Amendment 

rights to due process as well as his Sixth Amendment 

right of confrontation when the trial court denied his 

request for a mistrial when the prosecution withheld 

exculpatory impeachment evidence;

- Daniels was denied his Fifth and Fourteenth Amendment 

rights to due process as well as his Sixth amendment 

right of confrontation when the trial court refused to 

strike the testimony of a witness that petitioner was 

not able to fully impeach;

- Daniels was denied his Fifth Amendment right to be 

indicted by a grand jury when he was tried on an 

indictment brought by the prosecutor that was not 

presented to the grand jury;

- Daniels was denied his Sixth Amendment right to the 

effective assistance of trial counsel when his attorney

failed to object to the indictment brought that was not

presented to the grand jury;

- Daniels was denied his Sixth Amendment right to the 

effective assistance of trial counsel when his attorney

“failed to give the state’s case against him a 

meaningful adversarial challenge”;

- Daniels was denied his Sixth Amendment right to the 

effective assistance of appellate counsel when his 

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attorney omitted significant and meritorious issues 

from his appellate brief that were raised in his notice

of appeal or otherwise preserved in the record;

- Daniels was denied his Fifth and Fourteenth Amendment 

rights to due process when he was subjected to a 

malicious prosecution.

Only one of these issues, the issue as to whether or not

Daniels’ due process rights were violated by the trial court’s

denial of his motion to suppress the photographic lineup, was

presented to the NHSC in Daniels’ appellate brief and considered

by that Court on appeal. Four of these issues, those alleging a

denial of expert funds, a denial of impeachment evidence, the

withholding of exculpatory evidence, and the denial of Daniels’

trial motion to strike testimony, were raised in the notice of

appeal but not argued in the brief and therefore waived. The

remaining issues presented were not raised in the notice of

appeal or on direct appeal in any fashion. Daniels’ petition is

silent as to whether any of the remaining issues were raised

before the state courts in any post-conviction litigation. 

Accordingly, it appears that those issues have not been

exhausted.

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Discussion

To be eligible for habeas relief, Daniels 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 process. See

28 U.S.C. § 2241 and § 2254(a) & (b); see also Braden v. 30th

Jud. Cir. Ct. of Ky., 410 U.S. 484, 489-92 (1973); Benson v.

Super. Ct. Dep’t of Trial Ct. of Mass., 663 F.2d 355, 358-59 (1st

Cir. 1981). Daniels satisfies the first requirement as he is

currently serving his sentence and is thus in custody. However,

the petition does not establish satisfaction of the exhaustion

requirement at this time.

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

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

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1Daniels asserts generally that any failure to exhaust is

the result of a lack of available state corrective processes. As

Daniels offers no specifics to support this assertion, has made a

direct appeal of his conviction and presents no reason why he

could not avail himself of post-conviction avenues of relief such

as a new trial motion or petition for a writ of habeas corpus in

the state court, I will not consider that assertion further.

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fairly presented the federal nature of his claims to the state

courts to give them the first opportunity to remedy the claimed

constitutional error).

To date, it does not appear that Daniels has exhausted most

of the claims in his petition.1 Rather than dismiss the

petition entirely for failing to demonstrate exhaustion of each

claim, I will direct Daniels to amend his petition to include,

for each claim presented in his petition, documentation,

including motions, petitions, notices of appeal, briefs, or other

pleadings showing that the issues presented here, including the

precise federal nature of the issues, were in fact presented to

the state courts for consideration. 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). Daniels may have to return to the state courts to fully 

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present these claims in those courts before he can make the

required amendment to his current petition. 

2. Stay

The Supreme Court has recently decided that a district court

should stay a mixed petition containing both exhausted and

unexhausted claims if the petitioner “has good 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.” Rhines v.

Weber, 125 S.Ct. 1528, 1535 (2005); see also Duncan v. Walker,

533 U.S. 167, 182-83 (2001) (Stevens, J., concurring) (“There is

no reason why a district court should not retain jurisdiction

over a meritorious claim and stay further proceedings pending the

complete exhaustion of state remedies.”). Staying unexhausted

claims is “the preferable course in many cases involving ‘mixed’

petitions - and it may be the only appropriate course in cases in

which an outright dismissal threatens to imperil the timeliness

of a collateral attack.” Neverson v. Bissonnette, 261 F.3d 120,

126 n.3 (1st Cir. 2001); see also Delaney v. Matesanz, 264 F.3d

7, 14 n.5 (1st Cir. 2001) (recommending staying exhausted claims 

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where “there is a realistic danger that a second petition, filed

after exhaustion has occurred, will be untimely”). 

If Daniels has not engaged in any state court litigation

challenging his conviction and sentence since the NHSC affirmed

his conviction on November 24, 2004, the dismissal of this

petition may well imperil the timeliness of Daniels’ properly

exhausted claim regarding the suppression of the photographic

lineup. Further, liberally construing the petition as I must, I

find that while petitioner has not at this time made a specific

showing of good cause for his failure to exhaust all of his

claims, he has demonstrated a substantial effort to exhaust his

claims in state court and, being a pro se litigant, it stands to

reason that Daniels may simply not have realized the necessity of

raising each ground presented here in the state courts within the

limitations period. See Rhines, 125 S.Ct. at 1536 (Stevens, J.,

concurring) (the “good cause” requirement should not be read “to

impose the sort of strict and inflexible requirement that would

trap the unwary pro se prisoner.” (internal citation omitted));

see also id. (Souter, J., concurring) (pro se habeas petitioners

do not come well trained to address tricky exhaustion

determinations). It may also be the case that Daniels has raised

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some or all of his claims in state court pleadings that have not

yet been brought to the attention of this Court.

Further, I cannot conclude at this stage of the proceedings

that Daniels’ claims, if true, could not present meritorious

challenges to his conviction and/or sentence. I further find

that there is nothing before the Court to indicate that “the

petitioner engaged in intentionally dilatory litigation tactics”

either in pursuing his claims in the state courts or in this

Court. Rhines, 125 S.Ct. at 1535. Under these circumstances,

the proper course of action is to stay this petition pending the

exhaustion of all of the claims and compliance with this Order. 

Daniels also has the option of foregoing his unexhausted

claims and proceeding promptly with his sole exhausted claim. 

Daniels should be advised that in doing so, he will likely waive

ever having his other issues considered by this Court due to the

prohibition against second or successive habeas petitions. See

28 U.S.C. § 2244; Pratt v. United States, 129 F.3d 54, 56-58 (1st

Cir. 1997).

Conclusion

Daniels is ordered to amend his petition within thirty days

of the date of this Order to notify this Court as to whether (1)

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he has already exhausted all of his claims and to demonstrate

exhaustion here, or (2) he intends to return to the state court

to complete exhaustion prior to amending his petition to

demonstrate exhaustion here, or (3) that he chooses to forego his

unexhausted claims and proceed only on his single exhausted

claim. If Daniels chooses to exhaust his unexhausted claims

prior to filing his amended petition, he must commence state

court action to exhaust the unexhausted claims within thirty days

of the date of this Order. 

If Daniels notifies the Court that he intends to commence a

state court action to complete exhaustion of his claims, the

petition will be stayed pending exhaustion of Daniels’

unexhausted claims. If the petition is stayed to allow Daniels

to exhaust his claims, Daniels is ordered to contact this Court

every 90 days while seeking exhaustion of his claims, beginning

90 days from the date of the Order staying his petition, to

notify the Court that the matter is still pending in the state

courts and has not been decided, or to report any change in the

status of the state court proceedings. When the New Hampshire

Supreme Court has ruled on his claims, and the claims are thus

exhausted, Daniels must, within 30 days of being notified of the

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2Daniels would be well-advised to submit all of the relevant

pleadings, notices of appeal, court decisions and other documents

relevant to each of his claims demonstrating that the claims and

the federal nature of the claims were in fact presented to the

state courts as alleged in his amended petition notifying this

Court that exhaustion has been completed.

3If this petition were to be dismissed for failing to

demonstrate exhaustion, the dismissal would be without prejudice

as it would be procedural and not based on the merits of Daniels’

claims. See Slack v. McDaniel, 529 U.S. 473 (2000).

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Supreme Court’s final ruling, notify this Court of that ruling,

submit to this Court the New Hampshire Supreme Court’s ruling, as

well as all briefs or other pleadings filed in that court, and

file a request that this Court further consider his petition.2

Failure to amend his petition to demonstrate timeliness and to

notify the Court of his intentions as to how he wishes to proceed

with his unexhausted claims, or failure to comply with the

notification requirements of this Order may result in the

dismissal of the petition for failing to demonstrate exhaustion

of all of the claims presented.3

SO ORDERED.

__________________________________

James R. Muirhead

United States Magistrate Judge

Date: October 17, 2005

cc: Otis Daniels, pro se

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