UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Paul Blackmer

v. Civil No. 05-cv-340-PB

Warden, Northern New Hampshire

Correctional Facility

REPORT AND RECOMMENDATION

Pro se petitioner Paul Blackmer has filed a petition for a

writ of habeas corpus and amendments thereto, pursuant to 28

U.S.C. § 2254, challenging his state court conviction and

confinement (document nos. 1, 3-4, 11-18 and 33). The petition

is before me for preliminary review. See Rule 4 of the Rules

Governing Section 2254 Proceedings (requiring initial review to

determine whether the petition is facially valid and may be

served); United States District Court for the District of New

Hampshire Local Rules 4.3(d)(authorizing the magistrate judge to

preliminarily review pro se pleadings). 

I previously ordered Blackmer to amend his petition to

demonstrate exhaustion of Grounds 1-4, 6-7, 9-12, 14-20 and 22-25

(document no. 26). I further recommended dismissal of Grounds 5,

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1I recommended dismissal of Grounds 10 and 15 only in part.

My report and recommendation was approved by the United States

District Court Judge (Barbadoro, J.) on June 21, 2006 (document

no. 30).

2

8, 10, 13, 15, 21 and 261 (document no. 25). Blackmer now amends

his petition and objects to the dismissal of the aforementioned

grounds. 

For the reasons stated below, I recommend that the petition

be served upon the respondent as to Grounds 1-4, 6-7, 9-12, 14-

17, 19 and 22-25. As to Grounds 5, 8, 10, 13, 15, 21 and 26, the

amended petition does not alter my analysis set forth in the

previous report and recommendation and order, recommending

dismissal of those grounds. Accordingly, I adopt my

recommendation there (document nos. 25 & 26). Grounds 18 and 20

fail to state a claim upon which federal habeas corpus relief may

be granted, therefore, I recommend they be dismissed.

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,

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3

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).

Background

Blackmer was convicted in New Hampshire Superior Court

(Belknap County) on October 3, 1997 on charges of possession of

marijuana with intent to sell and conspiracy to possess marijuana

with intent to sell. He was again convicted on March 11, 1999 on

a charge of conspiracy to possess marijuana with intent to sell

and was sentenced on May 5, 1999. The underlying facts and

procedural history regarding Blackmer’s convictions are set

forth, in part, at State v. Blackmer, 149 N.H. 47, 48, 816 A.2d

1014, 1016 (2003):

In April 1994, the police arrested the defendant after

observing him retrieve two packages, containing

approximately fifty pounds of marijuana, from a United

Parcel Service (UPS) office in Laconia. In June 1994,

a grand jury indicted the defendant for possession of

marijuana with the intent to sell and conspiracy to

possess marijuana with the intent to sell. In October

1994, the grand jury reindicted the defendant for

possession of marijuana with intent to sell, subsequent

offense, and conspiracy to possess marijuana with

intent to sell, subsequent offense. The October 1994

indictments replaced the June 1994 indictments; the

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State later nol prossed all of these indictments.

In May 1996, a grand jury reindicted the defendant for

possession of marijuana with intent to sell and

conspiracy to possess marijuana with intent to sell

based upon the 1994 UPS incident. In 1997, he was

tried and convicted of these charges and sentenced to

prison.

In May 1996, the defendant was also indicted for

conspiracy to possess marijuana with the intent to sell

stemming from alleged activities between December 1995

and January 1996. This conspiracy charge was severed

from the charges based upon the 1994 incident and is

the charge at issue in this appeal.

Id. at 48, 816 A.2d at 1016.

Blackmer alleges that the instant federal habeas corpus

petition pertains solely to his 1999 conviction (see document

nos. 21-1 at ¶2 and 23-1 at ¶2), therefore, it is clear that his

petition is not successive. The following facts pertain to that

conviction.

Direct Appeal 

Following Blackmer’s 1999 conviction, his counsel, Glenn

Geiger, filed a notice of appeal with the New Hampshire Supreme

Court (“NHSC”) on August 5, 1999. In the appeal and accompanying

brief, Blackmer alleged the following claims relevant to this

action:

(1) whether the trial court erred in denying his

Motion for a Bill of Particulars where the

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indictment was insufficient because it lacked

specificity as to notice of the offense charged

and acts committed by Blackmer;

(2) whether the trial court erred in denying his

Motion to Suppress I where evidence was seized

pursuant to Blackmer’s non-arrest or unlawful

arrest in California and admitted into evidence at

trial in violation of his Fourth Amendment rights;

(3) whether the trial court erred in denying his

Motion to Suppress II where the video and audio

surveillance of Blackmer’s hotel room in

California violated his Fourth Amendment rights;

(4) whether the trial court erred in partially denying

his Motion in Limine and whether the court

violated the New Hampshire Rules of Evidence by

(a) admitting into evidence prior bad acts and

“evidence of other matters that were severed” from

Blackmer’s case and (b) admitting into evidence

portions of a transcript pertaining to

conversations between Blackmer and an undercover

police officer; 

(5) whether the trial court erred in denying his

Motion to Dismiss for Lack of a Speedy Trial where

Blackmer was denied the right to a speedy trial in

violation of his Sixth and Fourteenth Amendment

rights;

(6) whether the trial court erred in denying his

Motion to Dismiss at the conclusion of evidence

where there was no agreement or meeting of the

minds to constitute conspiracy because Kenneth

May, an undercover government agent, never

intended to bring or possess marijuana in the

State of Massachusetts;

(7) whether the trial court erred in denying his

Motion to Dismiss at the conclusion of evidence

where there was no agreement or meeting of the

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2RSA 629:3 I provides:

I. A person is guilty of conspiracy if, with a

purpose that a crime defined by statute be committed,

he agrees with one or more persons to commit or cause

the commission of such crime, and an overt act is

committed by one of the conspirators in furtherance of

the conspiracy.

3RSA 625:4 I(d) provides:

I. Except as otherwise provided in this section, a

person may be convicted under the laws of this state

for any offense committed by his own conduct or by the

conduct of another for which he is legally accountable

if:

. . .

(d) Conduct occurring within this state would

constitute complicity in the commission of, or an

attempt, solicitation or conspiracy to commit an

offense in another jurisdiction which is also an

6

minds when an individual conspires to violate the

law with only one other person and that person is

a government agent (citing United States v.

Escobar de Bright, 742 F.2d 1196, 1999 (9th Cir.

1984)(holding that “‘as it takes two to conspire,

there can be no indictable conspiracy with a

government informer who secretly intends to

frustrate the conspiracy.’”) (quoting Sears v.

United States, 343 F.2d 139, 142 (5th Cir. 1965));

(8) whether the trial court erred in denying his

Motion to Dismiss at the conclusion of evidence

where the crime of conspiracy under N. H. Rev.

Stat. Ann. (“RSA”) 629:32 requires that an overt

act be committed in the State of New Hampshire;

(9) whether the trial court erred in denying his

Motion to Dismiss at the conclusion of evidence

because RSA 625:4(d)3 is unconstitutional; a

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offense under the law of this state.

4RSA 629:3 IV provides in relevant part:

IV. The penalty for conspiracy is the same as that

authorized for the crime that was the object of the

conspiracy. . .

7

conspiracy to commit an offense in another

jurisdiction is not a crime in the State of New

Hampshire;

(10) whether the trial court erred in denying his

requested jury instruction on the charge of

general conspiracy; to establish conspiracy, an

overt act must have been committed in New

Hampshire, and there must have been an intent to

distribute marijuana in New Hampshire;

(11) whether the trial court erred in denying his

requested jury instruction on the charge of

possession with intent to distribute a controlled

drug; to establish such crime, there must have

been an intent to possess and intent to distribute

marijuana in the State of New Hampshire;

(12) whether the trial court erred in denying his

Motion to Set Aside Verdict and Grant New Trial

where the verdict was against the weight of

evidence, and the prosecution’s chief witness

testified that he never intended to bring

marijuana to the State of Massachusetts for sale

and that was never any agreement or meeting of the

minds essential to establish Blackmer’s guilt;

(13) whether the trial court erred in sentencing

Blackmer under RSA 629:3 IV4, because the object

for the conspiracy was to possess more than five

pounds of marijuana with intent to distribute in

the State of Massachusetts and the maximum term of

that object of the conspiracy under the Controlled

Substance Act of the State of Massachusetts, see

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Mass. Gen. Laws Ann. ch. 94c, § 32C(a), was two

years;

(14) whether the indictment was fatally flawed

where it was legally impossible to conspire

with a government agent or informant who

intended to frustrate the conspiracy, in

violation of Blackmer’s Sixth and Fourteenth

Amendment rights; Kenneth May, an undercover

government agent, intended to frustrate the

conspiracy, thus there was no agreement or

meeting of the minds to constitute a

conspiracy (citing United States v. Kelly,

888 F.2d 732, 740 (11th Cir. 1989) (holding

that a defendant’s conversations with a

government undercover agent did not

constitute a conspiracy because it was

legally impossible to conspire with a

government agent or informant who aims to

frustrate the conspiracy)); 

(15) whether disclosure of exculpatory evidence

provided new evidence that required the

reversal of Blackmer’s conviction; and

whether his conviction was obtained by the

prosecution’s failure to disclose exculpatory

evidence in violation of Brady v. Maryland,

373 U.S. 83 (1963), including the failure to

disclose perjured testimony of Drug

Enforcement Agent Michael Connolly; and

(16) whether the trial court lacked jurisdiction

to sentence Blackmer because RSA 629:3 is

unconstitutional and no New Hampshire judge

has authority to impose a sentence in

accordance with Massachusetts law.

While the appeal was pending on August 12, 1999, Blackmer

filed an “objection to court ordered filing of notice of appeal”,

arguing that the appeal inadequately addressed the issues raised. 

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Construed liberally, the objection raised the following claims

relevant to this action:

(1) conviction obtained by a defective indictment

that failed to give notice of the offense

charged and failed to establish the element

of agreement under the conspiracy charge

(citing Escobar de Bright, 742 F.2d at 1196

(holding there is no agreement or meeting of

the minds when an individual conspires to

violate the law with only one other person

and that person is a government agent));

(2) conviction obtained by the prosecution’s

failure to disclose exculpatory evidence in

violation of Brady, 373 U.S. 83, including

the failure to disclose testimony of Drug

Enforcement Agent Michael Connolly;

(3) conviction obtained by evidence seized pursuant to

an unlawful search and seizure, in violation of

Blackmer’s Fourth Amendment right to be free from

unreasonable search and seizure; and

(4) trial court lacked jurisdiction to impose the sentence;

the crime that was the object of the conspiracy was to

be committed in Massachusetts, therefore, the trial

court was required to sentence Blackmer under

Massachusetts law but lacked jurisdiction to do so.

Although the record is silent as to the NHSC’s ruling on

Blackmer’s objection, the record reflects that the NHSC reviewed

only three claims raised in the appeal:

(1) whether Blackmer was denied the right to a

speedy trial in violation his rights under

the Sixth and Fourteenth Amendments when the

State failed to disclose testimony of Special

Agent Michael Connolly; 

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(2) whether the fact that an alleged coconspirator was a police officer who never

intended to possess or sell marijuana negated

the crime of conspiracy (citing Escobar de

Bright, 742 F.2d at 1999 and Sears, 343 F.2d

at 142); and

(3) whether the trial court lacked jurisdiction

to sentence Blackmer and whether the New

Hampshire sentencing statute applied where

the crime that was the object of the

conspiracy was to be committed in

Massachusetts. 

The NHSC declined to review the remaining claims on the basis

that they were not preserved, were not fully developed for

appellate review or were not properly raised in the notice of

appeal. See Blackmer, 149 N.H. at 48, 816 A.2d at 1016. In a

published decision, the NHSC affirmed Blackmer’s conviction on

January 10, 2003 and subsequently denied his motion for

reconsideration on March 14, 2003. See id. While his appeal was

pending on October 22, 1999, Blackmer filed a petition for

mandamus with the NHSC, which was denied on February 7, 2002; the

record is silent as to the issues raised. The record further

reflects that a mandate was issued on March 18, 2003.

Miscellaneous State Court Filings

Blackmer filed a motion for new trial with the New Hampshire

Superior Court (Belknap County) on November 17, 2003 which was

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5Although the superior court denied his motions on July 2,

2004, the notice of decision is dated August 12, 2004, and

Blackmer allegedly received notice on August 13, 2004. 

11

denied on December 30, 2003. He also filed a motion for court

appointed counsel and a motion to “serve notice on the

proceedings” on November 17, 2003. The record is silent as to

the disposition of the motions. He then filed a “motion for

expansion of time to move for reconsideration” on January 2,

2004, a “motion for hearing and to reconsider order denying

motion for new trial” on January 7, 2004 and a “demand for formal

findings of fact and rulings of law” on January 7, 2004. The

superior court denied his motions on or about August 12, 2004.5

On February 9, 2004, Blackmer filed a “demand in accordance with

RSA 91:A; the record is silent as to the disposition of the

demand. 

State Court Habeas Corpus Petition

 On August 30, 2004, Blackmer filed a petition for a writ of

habeas corpus and supporting documents with the New Hampshire

Superior Court (Merrimack County). Construed liberally, the

petition raises the following claims relevant to this action:

(1) the New Hampshire jury instruction pertaining

to conspiracy erroneously described a

bilateral theory of conspiracy, and Blackmer

was tried under a unilateral theory of

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conspiracy; attached as an exhibit to the

state court habeas petition is a copy of

Escobar de Bright, 742 F.2d at 1196 (where

defendant alleged that the district court

erred in refusing to instruct the jury that

she could not be found guilty of conspiracy

if she conspired only with a government

agent);

(2) denial of the right to a speedy trial when

Blackmer was arrested in January 1996 and

tried in March 1999 and where the delay was

caused by the prosecution’s failure to

disclose exculpatory evidence;

(3) conviction obtained by a defective indictment

that failed to give notice of the offense

charged and failed to establish the element

of agreement under the conspiracy charge;

attached as an exhibit to the state court

habeas petition is a copy of Escobar de

Bright, 742 F.2d at 1196 (holding there is no

agreement or meeting of the minds when an

individual conspires to violate the law with

only one other person and that person is a

government agent);

(4) conviction obtained under the unilateral

theory of conspiracy when Blackmer was

convicted under the bilateral theory of

conspiracy in related criminal maters, in

violation of his rights under the Fourth,

Fifth, Sixth and Fourteenth Amendments;

(5) denial of the right to effective assistance

of counsel on direct appeal when the NHSC

granted appellate counsel’s withdrawal on

December 19, 2000, failed to appoint

alternate counsel and ordered Blackmer to

proceed pro se, in violation of the Fifth,

Sixth and Fourteenth Amendments (citing

Evitts v. Lucey, 469 U.S. 387 (1985)(holding

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that the Due Process Clause of the Fourteenth

Amendment guarantees a criminal defendant

effective assistance of counsel on his first

appeal as of right));

(6) the NHSC lacked jurisdiction over Blackmer’s

case when it denied him the Sixth Amendment

right to effective assistance of counsel and

Blackmer did not waive that constitutional

right (citing Johnson v. Zerbst, 304 U.S.

458, 468 (1938) (holding that if an accused

is not represented by counsel and has not

competently and intelligently waived his

constitutional right, the jurisdiction of the

trial court is lost, the judgment of

conviction pronounced by the court is void

and release from imprisonment may be obtained

by habeas corpus));

(7) trial court failed to compel the disclosure

of exculpatory evidence (citing in the motion

for reconsideration United States v. Basurto,

497 F.2d 781, 785-86 (9th Cir. 1974) (holding

that “the Due Process Clause of the Fifth

Amendment is violated when a defendant has to

stand trial on an indictment that is based

partially on perjured testimony, when the

perjured testimony is material, and when

jeopardy has not attached.”) and United

States v. Munoz-Franco, 123 F. Supp. 2d 45,

52-53 (D.P.R. 2000) (same));

(8) trial counsel failed to defend Blackmer under

a unilateral theory of conspiracy in

violation of his rights under the Fourth,

Fifth, Sixth and Fourteenth Amendments;

(9) New Hampshire’s conspiracy statute, N.H. Rev.

Stat. Ann. § 629:3, is void for vagueness and

ambiguous, in violation of Blackmer’s right

to due process under the Fifth and Fourteenth

Amendments; and

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(10) conviction obtained by evidence seized

pursuant to a non-arrest and unlawful search

and seizure, in violation of Blackmer’s

Fourth Amendment right to be free from

unreasonable search and seizure.

The superior court denied his petition without a hearing on

November 17, 2004. On November 26, 2004, Blackmer filed a motion

for reconsideration which was denied on December 16, 2004. On

November 26, 2004, he filed a motion for hearing with the NHSC,

requesting the court to reconsider the superior court’s dismissal

of his state court habeas petition, and a “demand for formal

findings and rulings of law.” He also filed a “demand to be

placed before the court” on or about November 30, 2004. The

record is silent as to the disposition of his motion and demands. 

On December 2, 2004, Blackmer filed with the NHSC a “motion to

amend motion for hearing and to reconsider dismissal of petition

under RSA 534 for writ of habeas corpus.” The record is silent

as to the disposition of the motion.

Discretionary Appeal

Blackmer filed a discretionary appeal with the NHSC on

January 11, 2005. In his appeal and amendment thereto, he

challenged the superior court’s dismissal of his habeas corpus

petition and raised the following claims relevant to this action: 

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6I generously construe Blackmer’s additional allegation,

that the NHSC denied him assistance of counsel and “squandered

its jurisdiction in the first/direct court accepted #99-308

appeal,” as a Sixth Amendment claim for denial of the right to

counsel on direct appeal.

15

(1) denial of the Sixth Amendment right to effective

assistance of counsel when trial counsel defended

Blackmer under a bilateral theory of conspiracy

and he was prosecuted, convicted and sentenced

under a unilateral theory of conspiracy (citing

Sears, 343 F.2d at 142 (holding that “as it takes

two to conspire, there can be no indictable

conspiracy with a government informer who secretly

intends to frustrate the conspiracy”));

(2) trial court improperly sentenced Blackmer

under the unilateral theory of conspiracy

when he was defended under the bilateral

theory of conspiracy (citing Escobar de

Bright, 742 F.2d at 1196 (holding there is no

agreement or meeting of the minds when an

individual conspires to violate the law with

only one other person and that person is a

government agent) and Sears, 343 F.2d at 142

(holding that “as it takes two to conspire,

there can be no indictable conspiracy with a

government informer who secretly intends to

frustrate the conspiracy”));

(3) denial of the Sixth Amendment right to effective

assistance of counsel on direct appeal6;

(4) New Hampshire’s conspiracy statute, N.H. Rev.

Stat. Ann. § 629:3, is void for vagueness and

ambiguous in violation the Fifth, Fourth and

Eighth Amendments and Blackmer’s rights to due

process and equal protection;

(5) Blackmer incorporated and attached as an appendix

all claims raised in his motion for new trial and

habeas corpus petition and filed with the superior

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7Because the instant petition challenges Blackmer’s 1999

conviction, I construe the newly amended Ground 23 to allege

denial of the Sixth Amendment right to effective assistance of

16

court; and

(6) conviction obtained by the prosecution’s failure

to disclose exculpatory evidence in violation of

Brady, 373 U.S. 83, including the failure to

disclose testimony of Drug Enforcement Agent

Michael Connolly.

On June 13, 2005, the NHSC held that to the extent Blackmer

intended to appeal the superior court decision denying his motion

for a new trial his appeal was dismissed as untimely. The NHSC

further held that to the extent Blackmer intended to appeal the

superior court decision denying his petition for a writ of habeas

corpus his appeal was declined. The NHSC denied his motion for

reconsideration on September 15, 2005.

Federal Habeas Corpus Petition 

Blackmer now brings the instant amended habeas corpus

petition, which I liberally construe to allege the following

twenty-six grounds for relief: 

(1) denial of the Sixth Amendment right to

effective assistance of trial counsel when:

a. trial counsel defended Blackmer under a bilateral

theory of conspiracy when he was prosecuted,

convicted and sentenced under a unilateral theory

of conspiracy, pursuant to N.H. Rev. Stat. Ann. §

629:3, I (Grounds 1, 22 and 237); and

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trial counsel during those proceedings.

8Blackmer has failed to identify any Fourth or Eighth

Amendment claim relating to the N.H. Rev. Stat. Ann. § 629:3,

therefore, I construe his claim to allege only a Fourteenth

Amendment violation.

17

b. trial counsel misconstrued the New Hampshire

conspiracy statute, N. H. Rev. Stat. Ann. § 629:3,

I (Ground 2);

(2) denial of the Sixth Amendment right to a

speedy trial when Blackmer was arrested in

January 1996 and tried in March 1999 (Grounds

3 and 14);

(3) N.H. Rev. Stat. Ann. § 629:3 is void for

vagueness and ambiguous, in violation of

Blackmer’s Fourteenth Amendment right to due

process (Ground 4).8

(4) conviction obtained by a defective indictment

that failed to give notice of the offense

charged, in violation of Blackmer’s Fifth

Amendment right to due process; Blackmer

further asserts that his conviction was

obtained under the unilateral theory of

conspiracy when he was convicted under the

bilateral theory of conspiracy in related

criminal maters (Ground 11);

(5) conviction obtained by evidence seized

pursuant to a non-arrest (Ground 5) and

unlawful search and seizure (Grounds 8 and

13), in violation of Blackmer’s Fourth

Amendment right to be free from unreasonable

search and seizure;

(6) conviction obtained by prosecution’s failure

to disclose exculpatory evidence in violation

of Brady, 373 U.S. 83 (Grounds 6-7 and 9),

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including the failure to disclose memoranda

from witness Jane Young (Ground 6), perjured

testimony of Drug Enforcement Agent Michael

Connolly (Ground 7) and the identity of

Grafton County Deputy Sheriff Kenneth May

(Ground 9); 

(7) denial of the Sixth Amendment right to

appellate counsel (Grounds 10 and 15),

including denial of counsel on direct appeal

(Ground 15);

(8) punishment imposed for violation of marijuana

laws in violation of Blackmer’s Eighth

Amendment right to be free from cruel and

unusual punishment, as the punishment is

unduly severe for the crime charged (Ground

12);

(9) conviction obtained by prosecution’s

interference with the attorney-client

relationship, in violation of Blackmer’s

Sixth Amendment right to counsel (Ground 16);

(10) denial of the right to a fair trial, in

violation of Blackmer’s Fourteenth Amendment

right to due process, where the New Hampshire

jury instruction pertaining to conspiracy

erroneously described a bilateral theory of

conspiracy and Blackmer was tried under a

unilateral theory of conspiracy (Ground 17);

(11) trial court lacked jurisdiction to impose the

sentence because:

a. the crime that was the object of

the conspiracy was to be committed

in Massachusetts, therefore, the

trial court was required to

sentence Blackmer in accordance

with Massachusetts law (Ground 18)

and

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b. under New Hampshire conspiracy law,

Blackmer was to be sentenced in

accordance with Massachusetts or

California conspiracy law with

regard to the issue of intent to

possess and sell marijuana (Ground

20);

(12) interference with Blackmer’s Sixth Amendment

right to counsel when (a) the trial court

ordered counsel to file a notice of appeal

that was inadequate and resulted in the NHSC

declining to review seventeen of twenty

claims raised in that appeal and (b) when the

prosecution failed to disclose exculpatory

evidence (Ground 19);

(13) conviction obtained in violation of

Blackmer’s Fourteenth Amendment right to due

process, whereby Grafton County Deputy

Sheriff Kenneth May committed the necessary

overt acts in New Hampshire in order to

establish a conspiracy claim against Blackmer

(Ground 21); 

(14) interference with Blackmer’s Sixth Amendment

right to effective assistance of counsel when

trial court denied his motion for a mistrial

despite prosecution’s introduction of

suppressed evidence (Ground 24);

(15) denial of the Sixth Amendment right to trial

counsel (Ground 25); and 

(16) denial of meaningful access to the courts

arising from inadequate law library

facilities (Ground 26).

Discussion

I. Custody and Exhaustion

To be eligible for habeas relief, Blackmer must show that he

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20

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 Northern

New Hampshire Correctional Facility and thus is in custody. For

the reasons discussed below, he satisfies the exhaustion

requirement but only as to Grounds 1-4, 6-7, 9-12, 14-17, 19 and

22-25. 

“Barring certain exceptional circumstances not present here,

a habeas petitioner in state custody may not advance his or her

constitutional claims in a federal forum unless and until the

substance of those claims has been fairly presented to the

state’s highest court.” Barresi v. Maloney, 296 F.3d 48, 51 (1st

Cir. 2002). The exhaustion requirement, codified at 28 U.S.C. §§

2254(b) & (c), is grounded in comity and affords states a full

opportunity to correct constitutional violations before federal

courts consider the issues. See O’Sullivan v. Boerckel, 526 U.S.

838, 845 (1999). “The petitioner bears the heavy burden of

demonstrating satisfaction of the exhaustion requirement.” 

Barresi, 296 F.3d at 51. 

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In order to “fairly present” a claim to a state’s highest

court, a petitioner must alert the state court “to the federal

nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29

(2004)(citations omitted). As the Supreme Court has held:

A litigant wishing to raise a federal issue can easily

indicate the federal law basis for his claim in a

state-court petition or brief, for example, by citing

in conjunction with the claim the federal source of law

on which he relies or a case deciding such a claim on

federal grounds, or by simply labeling the claim

‘federal.’”

Id., 541 U.S. at 32. Similarly, the First Circuit has enumerated

several ways in which a petitioner might satisfy his obligation

to fairly present a federal constitutional issue to a state’s

highest court, including: “(1) citing a specific provision of the

Constitution; (2) presenting the substance of a federal

constitutional claim in such manner that it likely alerted the

state court to the claim’s federal nature; (3) reliance on

federal constitutional precedents; and (4) claiming a particular

right guaranteed by the Constitution.” See Goodrich v. Hall, 448

F.3d 45, 47-48 (1st Cir. 2006)(quoting Gagne v. Fair, 835 F.2d 6,

7 (1st Cir. 1987)). The exhaustion requirement can also be

satisfied where a claim arising under state law is

“indistinguishable from one arising under federal law,” the

federal issue may be deemed to have been “fairly presented” to

Case 1:05-cv-00340-PB Document 35 Filed 09/07/06 Page 21 of 26
9As noted above, Grounds 10 and 15 were dismissed only in

part.

22

the state court if the claim was originally couched in terms of

state law. Id. (quoting Nadworny v. Fair, 872 F.2d 1093, 1099

(1st Cir. 1989)).

In the instant petition, Blackmer raises twenty-six grounds

for federal habeas corpus relief. I previously ordered him to

amend the petition to demonstrate exhaustion of Grounds 1-4, 6-7,

9-12, 14-20 and 22-25 (document no. 26). I further recommended

dismissal of Grounds 5, 8, 10, 13, 15, 21 and 269 (document no.

25), and my report and recommendation was subsequently approved

by the United States District Court Judge. Blackmer now amends

his petition and objects to the dismissal of the aforementioned

grounds. 

A. Dismissed Claims

As to Grounds 5, 8, 10, 13, 15, 21 and 26, the amended

petition does not alter my analysis set forth in the previous

report and recommendation and order, recommending dismissal of

those grounds. Accordingly, I adopt my recommendation there

(document nos. 25 & 26). In reaching this conclusion, I have

carefully considered Blackmer’s amendments to the grounds and his

objections to their dismissal.

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23

B. Noncognizable Claims

Grounds 18 and 20 of the petition challenge the trial

court’s jurisdiction to impose Blackmer’s sentence. Ground 18

alleges that the crime that was the object of the conspiracy was

to be committed in Massachusetts, therefore, the trial court was

required to sentence Blackmer in accordance with Massachusetts

law (Ground 18). Ground 20 alleges that under New Hampshire

conspiracy law, Blackmer was to be sentenced in accordance with

Massachusetts or California conspiracy law with regard to the

issue of intent to possess and sell marijuana.

It is well-established that “[a] federal court may not issue

the writ on the basis of a perceived error of state law.” Pulley

v. Harris, 465 U.S. 37, 41 (1984). Rather, in conducting habeas

review, a federal court is limited to deciding whether a

conviction violated the Constitution, laws or treaties of the

United States. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)

(holding that “it is not the province of a federal habeas court

to reexamine state-court determinations on state-law

questions.”). Because Grounds 18 and 20 raise issues of state

law and fail to identify a federal claim, I conclude that they

are not cognizable on federal habeas review and recommend they be

dismissed.

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24

C. Exhausted Claims

As to Grounds 1-4, 6-7, 9-12, 14-17, 19 and 22-25, I

conclude that Blackmer has demonstrated exhaustion of state

remedies. As evidenced by his direct appeal, state court habeas

corpus petition, discretionary appeal and supporting documents,

he has presented the substance of his claims to the New Hampshire

Supreme Court. In his discretionary appeal, he referred to his

federal claims, incorporated by reference the federal claims

raised in his state court habeas petition and attached a copy of

his state court habeas petition and supporting documents. While

Blackmer could have presented his federal constitutional issues

in a more direct and precise manner, his state court appeals,

when read in conjunction with his supporting documents, were

minimally sufficient to apprise the New Hampshire Supreme Court

of the federal constitutional dimension of his claims. For

purposes of preliminary review, I conclude that he presented the

substance of the federal constitutional claims in such manner

that it likely alerted the state court to the federal nature of

the claims. Accordingly, I conclude that Blackmer has

demonstrated exhaustion of state remedies as to Grounds 1-4, 6-7,

9-12, 14-17, 19 and 22-25.

Case 1:05-cv-00340-PB Document 35 Filed 09/07/06 Page 24 of 26
10As noted above, Grounds 10 and 15 were dismissed only in

part.

25

Conclusion

For the reasons stated above, and by separate order issued

simultaneously herewith, I recommend that the petition be served

upon the respondent as to Grounds 1-4, 6-7, 9-12, 14-17, 19 and

22-25. As to Grounds 5, 8, 10, 13, 15, 21 and 26, the amended

petition does not alter my analysis set forth in the previous

report and recommendation and order, recommending dismissal of

those grounds.10 Accordingly, I adopt my recommendation there

(document nos. 25 & 26). Grounds 18 and 20 fail to state a claim

upon which federal habeas corpus relief may be granted,

therefore, I recommend they be dismissed.

If this Report and Recommendation is approved, the claims as

identified herein will be considered for all purposes to be the

claims raised in the petition. If the petitioner disagrees with

the identification of the claims herein, he must do so by

objection filed within ten (10) days of receipt of this Report

and Recommendation, or he must properly move to amend the

petition. 

Any objections to this Report and Recommendation must be

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

Case 1:05-cv-00340-PB Document 35 Filed 09/07/06 Page 25 of 26
26

file objections within the specified time waives the right to

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

Law Committee 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: September 7, 2006

cc: Paul Blackmer, pro se

Case 1:05-cv-00340-PB Document 35 Filed 09/07/06 Page 26 of 26