UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Stephen Goupil

v. Civil No. 07-cv-058-SM

Bruce W. Cattell, Warden,

New Hampshire State Prison

O R D E R

Before the Court for preliminary review is Stephen Goupil’s

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

pursuant to 28 U.S.C. § 2254. See Rule 4 of the Rules Governing

Section 2254 Cases in the United States District Courts (“§ 2254

Rule”) (requiring initial review to determine whether the

petition is facially valid). As discussed below, I find that

Goupil has sufficiently demonstrated the facial validity of his

petition to allow it to proceed at this time. 

Background

Stephen Goupil was convicted by a jury of five counts of

aggravated felonious sexual assault and one count of theft. 

After the jury rendered its verdict in this matter, the

petitioner learned that the foreman of his jury, before, during,

and after the trial, had been composing a web log (or “blog”)

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that included, among other things, the foreman’s negative

impression of criminal defendants and the judicial process. 

Alleging that he was denied the right to an impartial jury,

petitioner sought to set aside the verdict. His motion was

denied. The post-trial issue was included in Goupil’s direct

appeal of his conviction to the New Hampshire Supreme Court. 

On September 28, 2006, the New Hampshire Supreme Court

affirmed Goupil’s convictions and the trial court’s denial of

petitioner’s motion to set aside the verdict. See State v.

Goupil, 908 A.2d 1256, 1268, ___ N.H. ___ (N.H. 2006). 

Petitioner then filed this federal habeas action alleging that

his conviction violates his right to a fair trial and impartial

jury as guaranteed by the Sixth and Fourteenth Amendments.

Discussion

To be eligible for habeas relief, Goupil 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). A petitioner’s remedies in New Hampshire

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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), cert. denied, Maloney v

Lanigan, 488 U.S. 1007 (1989) (“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). 

Petitioner has alleged that he is in custody, serving a

state prison sentence pursuant to the convictions in question in

this case. Also, a review of the New Hampshire Supreme Court’s

opinion reveals that petitioner raised his challenge to the

verdict in the state courts under provisions of the state and

federal constitutions. See Goupil, 908 A.2d at 1262. I find,

therefore that the claim presented here, including the federal

nature of the claim, has been properly exhausted in the state

courts to allow petitioner’s federal habeas action to proceed at

this time.

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Conclusion

Accordingly, I direct that Goupil’s petition be served on

the Respondent. See § 2254 Rule 4. The Respondent shall file an

answer or other pleading in response to the allegations made

therein. See id. (requiring reviewing judge to order a response

to the petition). The Clerk’s office is directed to serve the

New Hampshire Office of the Attorney General, as provided in the

Agreement On Acceptance Of Service, copies of this Order and the

habeas petition (document no. 1). Respondent shall answer or

otherwise plead within thirty (30) days of the date of this

Order. The answer shall comply with the requirements of § 2254

Rule 5 (setting forth contents of the answer). 

Upon receipt of the response, the Court will determine

whether a hearing is warranted. See § 2254 Rule 8 (providing

circumstances under which a hearing is appropriate). 

Petitioner is referred to Fed. R. Civ. P. 5, which requires

that every pleading, written motion, notice, and similar paper, 

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after the petition, shall be served on all parties. Such service

is to be made by mailing the material to the parties’ attorneys. 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: April 2, 2007

cc: Mark L. Sisti, Esq.

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