UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Lucio Eduardo Fernandez

v. Civil No. 06-cv-281-SM

Bruce W. Cattell, Warden,

New Hampshire State Prison

O R D E R

Lucio Eduardo Fernandez, through counsel, has filed a

petition for a writ of habeas corpus (document no. 1) pursuant to

28 U.S.C. § 2254. The matter is before me for preliminary

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

(requiring initial review to determine whether the petition is

facially valid). As discussed herein, I find that the petition

is not facially valid as it does not demonstrate exhaustion of

all of the federal claims raised in his petition. 

Background

Fernandez was convicted of one count of second degree murder

on November 4, 2003 in the New Hampshire Superior Court at

Rockingham County. On January 30, 2004, he was sentenced to the

New Hampshire State Prison for a term of forty years to life. He

appealed his conviction to the New Hampshire Supreme Court

raising seven grounds for relief. On May 23, 2005, the New

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Hampshire Supreme Court affirmed Fernandez’s conviction. See

State v. Fernandez, 152 N.H. 233 (2005). Fernandez now presents

the following six claims:

1. The conviction was obtained in violation of Fernandez’s

right to due process and a fair trial when the trial 

court denied Fernandez’s request for jury instructions 

regarding racial and geographic bias;

2. The conviction was obtained in violation of Fernandez’s

right to due process and a fair trial when the trial 

court refused to conduct voir dire of the only juror of

color, before designating her as an alternate, when she

was alleged to have been sleeping during closing 

arguments;

3. The conviction was obtained in violation of Fernandez’s

right to due process and a fair trial when the trial 

court allowed the prosecutor to refer to the 

petitioner’s actions as “murder” during the trial and 

to elicit the term “murder” from testifying witnesses 

to describe the defendant’s actions;

4. The conviction was obtained in violation of Fernandez’s

right to due process and a fair trial when the trial 

court allowed evidence to be introduced at trial that 

Fernandez, after leaving the jurisdiction where the 

crime was committed, appeared on a national television 

show about people wanted by the police;

5. The conviction was obtained in violation of Fernandez’s

right to due process and a fair trial when the trial 

court allowed a duffel bag and its contents, which were

guns allegedly owned by the petitioner, to be 

introduced as evidence at trial;

6. The conviction was obtained in violation of Fernandez’s

right to due process and a fair trial when the trial 

court allowed the medical examiner to testify that in 

his expert opinion various knife wounds on the deceased

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were evidence of “torture” or “taunting” injuries.

Discussion

Under 28 U.S.C. § 2254, the federal courts are authorized to

“entertain an application for a writ of habeas corpus in behalf

of a person in custody pursuant to a judgment of a state court

only on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.” To be

eligible for habeas relief, Fernandez 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. § 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). 

Fernandez satisfies the first eligibility requirement as he is

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

at this time, the petition neither demonstrates that Fernandez

has fully exhausted his state remedies, nor that effective state

remedies are unavailable to him.

A petitioner’s remedies in New Hampshire are exhausted when

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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, Maloney

v. Lanigan, 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 fairly presented the federal nature of his claims to the

state courts to give them the first opportunity to remedy the

claimed constitutional error). “[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) (emphasis added). Because

Fernandez’s petition contains claims for which exhaustion of the

federal claim has not been demonstrated, as discussed herein,

were Fernandez to press his petition without first exhausting all

of the claims contained therein, I would have to recommend

dismissal of the entire petition. See Novaczyk v. Warden, N.H.

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

Lundy, 455 U.S. 509, 513-21 (1982)).

Fernandez has neither asserted in his petition that he has

exhausted the federal constitutional claims that he has raised

nor attached to his petition any notice of appeal, brief, or

other pleading to demonstrate that exhaustion has occurred. The

only clue to the status of exhaustion presented by Fernandez in

his petition is reference to the decision in his direct appeal. 

A review of that decision demonstrates that as to his first claim

before this Court, that he was denied jury voir dire on issues

connected to his race, the New Hampshire Supreme Court opinion

makes clear that Fernandez presented a federal constitutional

argument to that court in support of the claim. However, while

the other claims were presented to the state appellate court for

consideration, the court’s opinion does not reference a federal

claim or decide any federal issue with regard to any of those

claims. Thus, I cannot now find that the petition demonstrates

that the federal constitutional claims raised here, numbered 2-6

above, have been exhausted in the state courts. Accordingly, I

find that the proper course of action is to stay this petition

pending the exhaustion of all of the claims and compliance with

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this Order. See Rhines v. Weber, 125 S.Ct. 1528, 1535 (2005) (a

district court should stay a mixed petition containing both

exhausted and unexhausted claims if the petitioner “had 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.”).

It should be noted that Fernandez has the option of

foregoing his unexhausted claims and requesting that the Court

proceed promptly with consideration of his sole exhausted claim. 

Fernandez should be advised that if he does, however, he will

likely waive ever having his other issues 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), cert. denied, 523 U.S. 1123

(1998).

Conclusion

Fernandez is ordered to amend his petition within thirty

days of the date of this Order to notify this Court as to whether

(1) he has already exhausted all of his claims and to demonstrate

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

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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 exhausted claim. If

Fernandez chooses to exhaust his unexhausted claims prior to

filing his amended petition, he must commence state court action

to exhaust all of the unexhausted federal claims within thirty

days of the date of this Order. 

If Fernandez 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 Fernandez’s

unexhausted claims. Once the petition is stayed to allow

Fernandez to exhaust his claims, Fernandez 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 federal

constitutional claims, and the claims are thus exhausted,

Fernandez must, within 30 days of being notified of the Supreme

Court’s final ruling, notify this Court of that ruling, submit to

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1Fernandez 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.

2If 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

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

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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.1 Failure

to amend his petition to notify the Court of his intentions as to

how he wishes to proceed with his unexhausted claims, failure to

proceed promptly in the state court if Fernandez chooses to

exhaust 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.2

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: September 18, 2006

cc: Paul J. Haley, Esq.

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