UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Donald Koehler

v. Civil No. 06-cv-036-SM

State of New Hampshire

O R D E R

Donald Koehler has filed a pro se petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is

entitled to release from the custody of the New Hampshire State

Prison (“NHSP”) (document no. 1). Koehler alleges that his

conviction and sentence were imposed pursuant to a guilty plea

that was not knowingly, intelligently, and voluntarily entered,

and that his incarceration pursuant to that plea therefore

violates his rights. The petition is before me for preliminary

review to determine whether or not Koehler has made a facially

sufficient claim under § 2254 to direct that the petition be

answered at this time. See Rule 4 of the Rules Governing § 2254

Proceedings (“§ 2254 Rule”) (requiring initial review to

determine whether the petition is facially valid and may be

served); see also United States District Court for the District

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of New Hampshire Local Rules (“LR”) 4.3(d)(2) (authorizing the

magistrate judge to preliminarily review pro se pleadings). As

explained fully herein, because Koehler is in custody and has

adequately alleged exhaustion of his claims, I order the petition

to be served on the Respondent. 

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 determining whether the

complaint 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).

LR 4.3(d)(2). In conducting the 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

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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

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 CIA, 843 F.2d

46, 49 (1st Cir. 1988).

Background

On April 14, 2004, Koehler was sentenced to 11⁄2 - 4 years in

the NHSP for one count of felony theft, and to a concurrent

sentence for violating his parole on a different sentence. As

part of his sentence, Koehler was placed on probation for five

years following his release from prison. Due to the

particularities of the cases, the sentence on the theft charge

was set to expire prior to the concurrent sentence he received on

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1A probationary term can be more onerous for a convicted

felon than a term of parole because if parole is violated, the

person can be made to serve only the maximum sentence imposed by

the judge, which may be less than the statutory maximum for the

crime of which the individual was convicted. If a convicted

person violates probation, however, he may be sentenced up to the

maximum sentence permitted by statute. See State v. White, 131

N.H. 444 (1989).

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his parole violation. Because of the expiration of the theft

sentence before the expiration of the parole violation sentence,

Koehler alleges that he sincerely believed that the five-year

term of probation was null and void. Koehler further alleges

that the attorney who represented him at his plea and sentencing

did not explain the implications of the probation term and that

he would not have agreed to a term of probation had he been aware

that it would extend beyond his release from incarceration.1

Koehler filed a pro se motion to clarify his sentence in the

state sentencing court, which he has attached to his petition. 

That motion, though improperly named, argues that the sentence is

ambiguous and that because he did not comprehend the extent of

the sentence imposed, the sentence should be “clarified” to

remove the term of probation. The court denied the motion. 

Koehler appealed to the New Hampshire Supreme Court, and between

November of 2005 and the filing of this petition, that Court

summarily denied his appeal. 

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Discussion

1. Custody and Exhaustion

To be eligible for habeas relief, Koehler 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 Duncan v. Kennedy, 513 U.S. 364,

365 (1995) (per curiam). Koehler satisfies the first requirement

as he is currently serving a New Hampshire prison sentence and is

thus in custody. 

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

correct the claimed constitutional error”); see also Baldwin v.

Reese, 541 U.S. 27 (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

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powers of discretionary review, thereby alerting that court to

the federal nature of the claim)).

Koehler claims here that his plea was not knowingly and

voluntarily made because he was misinformed and misunderstood the

penalty that could be imposed pursuant to his plea. Koehler

alleges here that his conviction and sentence pursuant to that

plea therefore violate his due process rights. A defendant

entering a guilty plea waives a number of constitutional rights,

including his Sixth Amendment right to trial by jury. McCarthy

v. United States, 394 U.S. 459, 466 (1969). For this waiver to

be valid under the Due Process Clause of the Fourteenth

Amendment, it must be “‘an intentional relinquishment or

abandonment of a known right or privilege.’” Id., citing Johnson

v. Zerbst, 304 U.S. 458, 464 (1938). If a defendant’s guilty

plea is not voluntarily and knowingly made, it violates due

process and is therefore void. McCarthy, 394 U.S. at 466.;

United States v. Santo, 225 F.3d 92, 97-98 (1st Cir. 2000)

(sentencing court is obligated to advise defendant of maximum

sentence prior to accepting a guilty plea). 

The narrative of Koehler’s notice of appeal does not

specifically cite to any federal law upon which Koehler’s claim

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is based. Koehler’s motion to clarify, however, was appended to

that notice of appeal. The motion to clarify cites to Santobello

v. New York, 404 U.S. 257 (1971), a federal case dealing with,

among other things, the necessity that a guilty plea be knowingly

and voluntarily entered. 404 U.S. at 261. Accordingly, I find

that Koehler raised the federal nature of his claim in the state

courts in a manner sufficient to exhaust his claim.

Conclusion

Accordingly, I order the petition to be served on the

Respondent. See Rule 4 of the Rules Governing § 2254 Proceedings

(“§ 2254 Rules”). 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). 

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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: March 17, 2006

cc: Donald Koehler, pro se

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