UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Darryl E. Bickham

v. Civil No. 07-cv-0064-PB

New Hampshire State Prison, Warden

O R D E R

Pro se petitioner Darryl E. Bickham requests this Court to

lift the stay of proceedings and review his amended petition for

a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, in

which he challenges his New Hampshire state court conviction

(document nos. 1 and 5). 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 Bickham

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

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petition to demonstrate exhaustion of each claim before I will

direct that the petition be answered. He is further ordered to

demonstrate why Ground One of the petition should not be

dismissed as time-barred.

Background

Convicted in November 1996 by the New Hampshire Superior

Court (Strafford County) of four counts of aggravated felonious

sexual assault, Bickham was sentenced to a term of imprisonment. 

He is currently incarcerated at the New Hampshire State Prison

(“NHSP”). Following his conviction, Bickham filed a direct

appeal with the New Hampshire Supreme Court (“NHSC”) and raised

six claims, none of which sufficiently identify a federal claim

for purposes of federal habeas review. The NHSC affirmed his

conviction on October 21, 1998. 

In August of 1999, Bickham filed with the superior court a

motion to appoint counsel. Sven Weiberg was appointed as counsel

in September 1999 and represented Bickham through March 2000. 

Bickham subsequently filed a motion to dismiss Weiberg based on

his failure to respond to Bickham’s letters or telephone calls. 

Weiberg withdrew as counsel in March 2000. Philip Desfosses was

appointed as counsel on April 18, 2000 and represented Bickham

Case 1:07-cv-00064-JL Document 6 Filed 05/31/07 Page 2 of 15
1The record further reveals that a motion to preserve

evidence was filed on November 9, 2004. Bickham subsequently

discovered that in August 2002, the state investigating agency

destroyed certain exculpatory evidence consisting of a pair of

underwear worn by the victim. 

3

through December 5, 2001, at which time Desfosses was dismissed. 

Subsequently, Patrick Fleming was appointed as Bickham’s counsel. 

Despite the appointment of counsel, there is no indication that

any application for state post-conviction relief or other

collateral review was filed on Bickham’s behalf during the period

of March 2000 through August 25, 2004.

 On August 26, 2004 Bickham filed his first habeas corpus

petition with the superior court (Merrimack County) in which he

raised the following two claims:

(1) ineffective assistance of trial counsel in

violation of Bickham’s federally protected rights under

the Sixth and Fourteenth Amendments; and

(2) destruction of and/or failure to preserve

exculpatory evidence in violation of Bickham’s

federally protected right to due process.1

The superior court denied his petition on March 15, 2006 and

denied his motion for reconsideration on April 11, 2006. In May

2006, Bickham filed an appeal with the NHSC in which he raised

the following eight claims:

(1) denial of the right to due process when the state

destroyed forensic evidence without contacting Bickham

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or his appointed counsel;

(2) denial of due process when Bickham moved for

appointed counsel in August 1999 and notified the state

of the need to preserve forensic evidence;

(3) denial of due process when in its order of March

15, 2006 the state court found that the forensic

evidence was destroyed as part of customary practice

and pursuant to the County Attorney’s written

authorization;

(4) ineffective assistance of trial counsel;

(5) denial of due process when the state court denied

Bickham’s motion to subpoena correspondence from

appointed counsel, which allegedly would have

demonstrated Bickham’s diligence in attempting to

preserve forensic evidence;

(6) denial of due process when the state court ruled

on March 15, 2006 that trial counsel need not ask

Bickham if she should acquire more definitive forensic

evidence before unilaterally deciding to forego such

testing;

(7) denial of the right to due process and a jury

trial when the state court in its order of March 15,

2006 predicted the outcome of DNA testing that was

never performed; and

(8) denial of the right to due process when the state

court in its order of March 15, 2006 ruled that trial

counsel testified to Bickham’s admission that he likely

committed the offense. 

The NHSC declined his appeal on June 14, 2006 and denied his

motion for reconsideration on July 20, 2006.

Bickham filed a second habeas corpus petition on September

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5, 2006 in which he raised the following claims relevant to this

action:

(1) failure to disclose potentially exculpatory

evidence, including newly discovered laboratory notes

that were not disclosed at trial, in violation of

Bickham’s Fourteenth Amendment right to due process 

and Brady v. Maryland, 373 U.S. 83 (1963) and its

progeny (holding that prosecution’s suppression of

evidence favorable to an accused violates due process

where the evidence is material either to guilt or to

punishment); and

(2) ineffective assistance of counsel arising from the

failure to test and preserve potentially exculpatory

forensic evidence, in violation of Bickham’s Fifth,

Sixth and Fourteenth Amendment rights.

The superior court denied the petition on September 13, 2006 and

denied his motion for reconsideration on October 20, 2006. There

is no indication that Bickham filed a subsequent appeal.

On March 7, 2007, Bickham filed the instant petition in

which he alleges the following three grounds for federal habeas

corpus relief:

(1) violation of the Fifth Amendment prohibition

against double jeopardy when: 

a. Bickham was subjected to multiplicious

indictments; 

b. appointed counsel failed to file a timely

motion to quash the indictments; and

c. Bickham was convicted of multiple unsustained

counts and received multiple sentences

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(Ground One);

(2) denial of the Sixth Amendment right to effective

assistance of counsel at pretrial, trial and post-trial

proceedings (Ground 2); and

(3) violation of the Fourteenth Amendment right to due

process arising from the failure to compel, present and

preserve exculpatory evidence (Ground 3).

He now requests this Court to lift the stay of proceedings and

preliminarily review his federal petition.

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).

Discussion

I. Statute of Limitations

Ground One of the petition appears to be barred from

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consideration due to Bickham’s failure to file within the oneyear statutory limitations period. Grounds Two and Three

allegedly arise from newly discovered facts, therefore, I

conclude that they fall within a statutory exception to the

limitations period and thus are not time-barred.

The Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), enacted on April 24, 1996, requires that prisoners

file applications for writs of habeas corpus within one year from

the date on which the challenged judgment becomes final. 28

U.S.C. § 2244(d)(1)(A). This limitation period begins to accrue

from the date of the final disposition of any direct appeal to

the state court of last resort and the conclusion of certiorari

review by the United States Supreme Court, or the running of the

ninety-day period in which to seek such review. 28 U.S.C. §

2244(d)(1)(A).

“Statutory exceptions exist where the state impeded relief,

new constitutional rights were created by the Supreme Court, or

newly discovered facts underpin the claim.” David v. Hall, 318

F.3d 343 (1st Cir. 2003)(citing Section 2244(d)(1)(B)-(D)). The

limitations period may be tolled during the pendency of a

properly filed application for state post-conviction relief or

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other collateral review in state court, and may be equitably

tolled in appropriate circumstances. 28 U.S.C. § 2244(d)(2). 

See also Neverson v. Farquharson, 366 F.3d 32, 41 (1st Cir.

2004). In the AEDPA context, equitable tolling is the exception

rather than the rule and is deemed justified only in

extraordinary circumstances. Id.

Here, Bickham challenges a conviction that became final when

his direct appeal was affirmed on October 21, 1998. Absent

tolling, he had until January 21, 1999 to file a federal habeas

corpus petition. He filed his first federal petition on March 7,

2007, more than eight years after the AEDPA grace period had

expired. His federal petition, therefore, is time-barred unless

he can demonstrate that an application for state post-conviction

relief or other collateral review tolled the limitations period

or that he falls within a statutory exception to the one-year

limitations period. 

Although Bickham filed additional state court appeals

beginning in August 2004, they were not filed during the AEDPA

limitations period therefore their pendency is not relevant to

the tolling provisions. He appears to allege an exception to the

one-year limitations period on the basis that he obtained newly

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discovered evidence in 2004 and/or 2005. That evidence allegedly

was obtained through discovery and consisted of potentially

exculpatory laboratory notes that were not disclosed at trial. 

Bickham’s state court appeals filed in 2004 through 2006 raise

claims similar to Grounds Two and Three in the instant federal

petition. While it is not clear whether the statute of

limitations is implicated from the time of discovery until the

filing of the instant federal petition, for purposes of

preliminary review I conclude that Grounds Two and Three of the

petition are not time-barred. 

Ground One of the petition, however, appears to be timebarred. Bickham’s state court appeals filed after 2004 do not

raise any claim similar to Ground One in the federal petition. 

“The timeliness calculation under § 2244(d)(1)(D) requires

‘claim-by-claim consideration,’ meaning that, if applicable, the

provision would not make this habeas petition timely as to all

claims raised, but only as to claims based solely on the newly

discovered facts.” Gillum v. Norris, No. 5:06cv00064-JLH, 2007

WL 1442683 at *6 (E.D. Ark. May 16, 2007 (quoting Pacer v.

DiGuglielmo, 544 U.S. 408 n.6 (2005)). Because Ground One is not

premised upon newly discovered facts, Bickham is ordered to amend

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his petition to demonstrate why that claim should not be

dismissed as time-barred.

II. Custody and Exhaustion

To be eligible for habeas relief, Bickham 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 NHSP and

thus is in custody. However, as explained more fully below,

Bickham 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.

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

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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, Bickham raises three grounds for 

federal habeas corpus relief. As to Ground One, pertaining to

multiplicious indictments, there is no indication that he

presented the federal nature of the claim to the NHSC for review. 

Accordingly, he has failed to demonstrate exhaustion of state

remedies with regard this claim. As to Grounds Two and Three,

pertaining to ineffective assistance of counsel and due process

violations arising from the denial of exculpatory evidence, the

record reveals that Bickham raised both claims in his second

habeas corpus petition filed with the New Hampshire Superior

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Court. However, there is no indication that he filed a

subsequent appeal the NHSC and presented the claims to the NHSC

for review. Accordingly, I conclude that he has failed to

demonstrate exhaustion of state remedies with regard to Grounds

Two and Three. 

To demonstrate exhaustion of his claims, Bickham should

provide this Court with copies of any related motions, petitions,

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

pertaining to his state court proceedings. See Smith 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 the notice of appeal filed with the NHSC pertaining to his

second state court habeas corpus petition. He may need to return

to the state courts to fully present his unexhausted claims and

the federal nature of each claim before he can make the required

amendment to his federal petition. 

II. Stay

The Supreme Court has held that a district court should stay

a habeas corpus petition if the petitioner has good cause for his

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failure to exhaust, his unexhausted claims are potentially

meritorious, and there is no indication that he engaged in

intentionally dilatory litigation tactics. See Rhines v. Weber,

544 U.S. 269, 278-79 (2005) (permitting a federal district court

to stay a federal habeas action and hold the petition in abeyance

while the petitioner exhausts claims in state court). See also

Duncan v. Walker, 533 U.S. 167, 182-83 (2001) (Stevens, J.,

concurring) (district court may retain jurisdiction over a

meritorious claim and stay further proceedings pending the

complete exhaustion of state remedies). Staying unexhausted

claims 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, 15

n.5 (1st Cir. 2001) (recommending staying exhausted claims where

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

exhaustion has occurred, will be untimely”). Accordingly, I will

order the proceedings stayed and the petition held in abeyance,

pending complete exhaustion of state remedies. 

Conclusion

For the reasons stated above and because the claims raised

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

opportunity to amend his petition to demonstrate exhaustion of

state remedies with regard to his claims and the federal nature

of those claims. He is further instructed to amend his petition

to demonstrate why Ground One should not be dismissed as timebarred.

To demonstrate exhaustion, Bickham is instructed to provide

the court with a copy of his notice(s) of appeal to the NHSC and

any other relevant state court pleadings, orders or decisions

within thirty (30) days. He must commence the state court

proceedings within thirty (30) days of the date of this order. I

will order the proceedings stayed and the petition held in

abeyance, pending complete exhaustion of state remedies. The

stay will be issued under the following two conditions:

1. Bickham is ordered to contact this Court every

90 days, beginning from the date of entry of this

order, and inform the court of the status and

pendency of his state court proceedings, if any,

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 claims at issue, and the exhaustion of such

claims, Bickham must notify this Court of the

ruling and submit all briefs or other pleadings

filed in the state court proceedings; he must also

file a request with this Court, stating that his

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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: May 31, 2007

cc: Darryl E. Bickham, pro se

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