UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Philip Geary

v. Civil No. 07-cv-116-PB

Richard M. Gerry, Interim Warden,

New Hampshire State Prison

O R D E R

Before the Court for preliminary review is Philip Geary’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

Geary has sufficiently demonstrated the facial validity of his

petition to allow it to proceed at this time. 

Standard of Review

Under this court’s local rules, when an incarcerated

plaintiff commences an action pro se and in forma pauperis, the

magistrate judge is directed to conduct a preliminary review and

to prepare a report and recommendation advising the district 

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Geary v. NH State Prison, Interim Warden Doc. 5

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judge 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).

United States District Court for the District of New Hampshire

Local Rule (“LR”) 4.3(d)(2). In conducting a 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 petitioner 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

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

F.2d 46, 49 (1st Cir. 1988). Applying this standard, the facts

alleged by Geary are as follows.

Background

Geary was convicted of six counts of felony sexual assault

and one count of felony witness tampering for engaging in sexual

acts with a minor over the course of two years, and then telling

the victim not to say anything about the assaults. During his

trial on these charges, evidence was admitted of a recorded phone

conversation between the victim and Geary. During the recorded

conversation, Geary admitted to one act of felonious sexual

assault and told the victim not to say anything about the

assaults. 

In preparing for trial, Geary alleges that his attorney did

not file motions important to his defense, including a motion to

suppress the recording of the phone conversation with the victim,

a motion for a bill of particulars, or a motion to sever the

charges against Geary. Geary further alleges that his attorney

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1Geary received four consecutive 10 - 30 year sentences, two

concurrent prison sentences, and one suspended prison sentence. 

Accordingly, Geary was sentenced to actually serve 40 - 120 years

in prison.

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failed to properly investigate and challenge the prosecution’s

case. In addition, Geary states that, without Geary’s consent,

his attorney had conceded during opening argument that, Geary had

admitted to one count of sexual assault during the recorded phone

conversation. 

The prosecutor also referred to Geary’s admission during the

State’s opening argument. Further, in closing, the prosecutor

made derogatory comments about Geary, specifically, calling him a

“liar.” 

Geary was convicted after trial in November of 2003. On

February 5, 2004, Geary was sentenced to 40 - 120 years at the

New Hampshire State Prison.1 After the imposition of his

sentence, Geary requested that his trial counsel appeal his

conviction to the New Hampshire Supreme Court. Trial counsel did

not file an appeal, as he believed there were no appealable

issues in the case. Geary filed a pro se notice of appeal in

August of 2004, but the appeal was denied as untimely on April 7,

2005. 

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Geary returned to the trial court and filed a motion for a

new trial on October 1, 2005, alleging that the ineffective

assistance of trial counsel and prosecutorial misconduct had

violated his rights under both State and federal law. Prior to

the hearing on his motion for a new trial, Geary sought to have

his post-conviction counsel, who was appointed by the court,

removed and to have new counsel appointed. The motion was denied

and the hearing proceeded in August of 2006, with previouslyappointed post-conviction counsel. The motion for a new trial

was denied on December 6, 2006. A notice of appeal was filed in

the New Hampshire Supreme Court by counsel on January 8, 2007. 

On March 5, 2007, Geary filed a supplemental pro se notice of

appeal in the New Hampshire Supreme Court, raising the issue that

his motion for new counsel had been improperly denied, as the

trial court failed to conduct a proper inquiry into Geary’s

legitimate concerns regarding his counsel, in violation of

Geary’s rights under State and federal law. The second notice of

appeal was accepted as a supplement to the first. However, the

New Hampshire Supreme Court declined the consolidated appeal on

April 2, 2007. This petition followed.

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2The claims as identified in this Order will be considered

to be the claims raised in the petition for all purposes. If

Geary disagrees with the identification of the claims herein, he

must properly move to amend his petition.

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Discussion

I. The Claims2

Geary raises the following claims in his petition before

this Court:

A. Denial of the Effective Assistance of Trial Counsel in 

Violation of the 6th and 14th Amendment Rights to the 

Effective Assistance of Counsel and to Due Process

1. Geary was denied the effective assistance of 

counsel when his attorney improperly stated to the

jury in his opening statement that Geary admitted 

that he was guilty of one offense, without Geary’s

consent;

2. Geary was denied the effective assistance of 

counsel when his attorney failed to conduct 

adequate pretrial investigation;

3. Geary was denied the effective assistance of 

counsel when his attorney failed to properly 

object to or impeach the state’s evidence against 

him; 

4. Geary was denied the effective assistance of 

counsel when his attorney failed to file motions 

on Geary’s behalf, specifically, a motion to 

suppress the recording of a phone conversation 

between Geary and the victim, a motion for a bill 

of particulars, and a motion to sever the charges;

5. Geary was denied the effective assistance of 

counsel when his attorney failed to file a notice 

of appeal on Geary’s behalf;

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B. Prosecutorial Misconduct in Violation of the 5th, 6th 

and 14th Amendment Rights to a Fair Trial, to an 

Impartial Jury, to not be Required to Incriminate 

Oneself, and to Due Process

1. The prosecution in Geary’s case engaged in 

misconduct by improperly obtaining a recording of 

a phone conversation between Geary and the victim;

2. The prosecution in Geary’s case engaged in 

misconduct by advising the jury in its opening

statement, without Geary’s consent, that the 

evidence would include an admission of guilt by 

Geary, prior to the proper introduction of such 

evidence;

3. The prosecution in Geary’s case engaged in 

misconduct by making improper remarks to the jury 

in its summation, designed to appeal to the 

jurors’ emotions, specifically, by calling Geary a

“liar”; 

C. Denial of Motion for New Counsel in Violation of the 

6th and 14th Amendment Rights to the Effective 

Assistance of Counsel, a Fair Trial and Due Process

The trial court, in denying Geary’s request for new 

counsel without sufficient inquiry into the legitimacy 

of the basis for the request, denied Geary due process,

a fair trial, and the effective assistance of counsel.

II. Custody and Exhaustion

To be eligible for habeas relief, Geary 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

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F.3d 259, 261 (1st Cir. 1997) (citing authority to explain the

exhaustion principle). A petitioner’s remedies in New Hampshire

are exhausted when the petitioner’s federal claims have been

presented to the State’s highest court “fairly and recognizably,”

so that the State courts have an opportunity to rule on the

claims. Clements v. Maloney, No. 05-2411, 2007 WL 1241253, at *3

(1st Cir. Apr. 30, 2007); 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). 

As to the first requirement, petitioner is in custody, as he

is serving a State prison sentence pursuant to the convictions in

question in this case. Regarding the second requirement, Geary

has submitted, with his petition, the motion for a new trial, the

motion seeking new counsel, and all the pleadings related

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thereto, that were presented to the trial court, as well as the

two notices of appeal filed after the denial of those motions. A

careful review of the documents that the New Hampshire Supreme

Court had before it for consideration demonstrates that, for the

claims raised here, Geary has fairly presented each claim,

including the federal nature of the claim, to the New Hampshire

Supreme Court for review. See Clements, 2007 WL 1241253 at *3

(following Gagne v. Fair, 835 F.2d 6, 7 (1st Cir. 1987) and

setting out ways in which a habeas petitioner may fairly present

a federal claim to the State courts for exhaustion purposes). I

find, therefore, that the claims presented here have been

properly exhausted in the State courts to allow petitioner’s

federal habeas action to proceed at this time.

Conclusion

I direct that Geary’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

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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,

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: May 2, 2007

cc: Philip Geary, pro se

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