UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Vernon Gray

v. Civil No. 07-cv-077-SM

Bruce Cattell, Warden,

New Hampshire State Prison

O R D E R

Before the Court for preliminary review is Vernon Gray’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

Gray 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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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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1A Richards hearing is a pretrial hearing in a criminal case

in New Hampshire, in which the trial judge inquires about Fifth

Amendment concerns of a witness who may have to incriminate

himself in order to testify fully and truthfully at trial. See

State v. Richards, 129 N.H. 669, 673-74 (1987). The trial court

hears evidence regarding the proposed testimony, and the

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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 Gray are as follows.

Background

During 2002 and 2003, Gray’s wife, Bonnie, had an affair

with a man named Matthew Collier. In May of 2003, Collier

accused Gray of pointing a gun at a car in which Collier was a

passenger. Gray was charged with reckless conduct, first degree

assault, and attempted murder. Gray alleges that Collier had

driven at Gray in a threatening way, and that Gray, who was

armed, fell onto the pavement in an attempt to avoid Collier’s

car. Gray claims his gun discharged upon hitting the pavement. 

He raised the affirmative defense of self-defense at trial.

Prior to Gray’s trial, a “Richards hearing” was held in the

trial court.1 At that hearing, Gray alleges that his trial

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potential for self-incrimination, and weighs the witness’ rights

against the defendant’s right to present all proofs favorable to

his defense. In this manner, the trial court obtains the

information necessary to making rulings concerning the management

of the testimony of the relevant witness or witnesses at trial.

2The claims as identified in this Order will be considered

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

Gray disagrees with the identification of the claims herein, he

must properly move to amend his petition.

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counsel failed to properly introduce evidence that, Gray

believes, would have resulted in a weakening of the State’s

potential evidence. Gray further alleges that the weakening of

evidence was sufficient that the case against him would have

likely been dismissed.

Vernon Gray was convicted by a jury of reckless conduct in

May of 2005 and sentenced on July 20, 2005. Gray’s counsel

failed to file a timely direct appeal on his behalf. Gray filed

a petition for a writ of habeas corpus in the New Hampshire

Superior Court at Merrimack County on March 7, 2006. That

petition was denied on November 13, 2006. Gray filed a notice of

appeal in the New Hampshire Supreme Court on November 17, 2006. 

The appeal was denied on March 2, 2007. This petition followed.

The Claims2

Gray challenges his trial counsel’s effectiveness at trial. 

Gray alleges that his counsel was ineffective at trial because he

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failed to properly impeach the State’s central witness with

available impeachment evidence, that he failed to object to the

exclusion of impeachment evidence by the trial judge, and that he

failed to introduce evidence in his possession that would have

both impeached the credibility of the State’s witnesses and

proven exculpatory to Gray. As a result, Gray argues that his

trial counsel failed to challenge the State’s case effectively

and failed to properly introduce Gray’s self defense theory to

the jury. Gray alleges that his trial counsel denied him the

effective assistance of counsel and right to confront the

evidence against him guaranteed by the Sixth and Fourteenth

Amendments. 

Next, Gray alleges that the trial judge in the case erred in

ruling that the key State’s witness did not have potential

criminal liability that would require his testimony to be

excluded under the Fifth Amendment, and that therefore the

testimony of the witness was admissible at trial, as it would not

cause the witness to incriminate himself. Further, the trial

court abused its discretion in not allowing the defense to

introduce certain impeachment evidence that, Gray alleges, was

admissible, relevant, and material to the success of his case. 

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Accordingly, Gray alleges that the trial court violated his

Fifth, Sixth and Fourteenth Amendment rights to due process and a

fair trial.

Gray affirmatively states that the arguments raised in this

petition have been raised before the State Superior Court in his

petition for a writ of habeas corpus, and to the New Hampshire

Supreme Court in his notice of appeal filed after the State

habeas petition was denied. Gray has not filed any documentation

indicating precisely how the arguments were raised in the State

courts, but liberally construing the complaint, as I must, I find

that Gray alleges that the arguments presented here, which

include arguments based on both State law and the federal

constitution, were presented to the State Superior and Supreme

Courts.

Discussion

To be eligible for habeas relief, Gray 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

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exhaustion principle). 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 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 is in custody, serving a State prison sentence

pursuant to the conviction in question in this case. As I

previously noted, Gray has alleged sufficient facts to

demonstrate that he has previously raised his claims, including

the federal nature of the claims, in the State courts. 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.

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Conclusion

I direct that Gray’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.

/s/ James R. Muirhead 

James R. Muirhead

United States Magistrate Judge

Date: April 17, 2007

cc: Vernon Gray, pro se

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