UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Gerard Joseph Bean

v. Civil No. 07-cv-328-JL

Warden, Northern New Hampshire

Correctional Facility

O R D E R

Pro se petitioner Gerard Joseph Bean has filed a petition

for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254,

challenging his New Hampshire state court conviction (document

nos. 8-10). The petition is before me for preliminary review. 

See Rule 4 of the Rules Governing § 2254 Proceedings (“Habeas

Rules”) (requiring initial review to determine whether the

petition is facially valid); see also United States District

Court for the District of New Hampshire Local Rule (“LR”)

4.3(d)(2) (authorizing the magistrate judge to preliminarily

review pro se pleadings). Also filed is a motion to amend the

petition, which is hereby granted (document no. 17).

For the reasons stated below, I find that the petition does

not at this time make a facially sufficient showing that Bean is

entitled to relief. I therefore order him to amend the petition

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to demonstrate exhaustion of each claim before I will direct that

the petition be answered.

Background

On October 13, 2002, Bean was arrested for attempted

kidnapping of an eight-year-old girl. Following a mistrial in

December 2003, he was re-tried and convicted in April 2004 by the

New Hampshire Superior Court (Rockingham County) of attempted

kidnapping. He was sentenced to a term of imprisonment and is

currently incarcerated at the Northern New Hampshire Correctional

Facility (“NCF”). Bean filed a direct appeal of his conviction

with the New Hampshire Supreme Court (“NHSC”) in which he raised

the following claims:

(1) the trial court’s instructions to the jury

impermissibly amended the indictment, which was itself

insufficient;

(2) the trial court (a) improperly permitted the State

to refresh the victim’s recollection and (b) improperly

admitted hearsay evidence concerning Bean’s alleged

statements to the victim; and

(3) the trial court erred by failing to grant Bean’s

motion for a directed verdict when there was

insufficient evidence to convict.

See State v. Bean, 153 N.H. 380, 82, 879 A.2d 946, 948 (2006).

The NHSC affirmed Bean’s conviction on April 25, 2006. See id.

at 380, 879 A.2d at 946.

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1The instant petition does not include a ground raised by

Bean in his state court appeal: that the trial court’s

3

Subsequently, Bean filed a petition for a writ habeas corpus

with the New Hampshire Superior Court (Coos County) in which he

raised the following requests and claims:

(1) request to appoint an investigator to examine the

ethics of the child advocacy center on the basis that

testimony damaging to his case was elicited through

improper suggestive interviewing techniques;

(2) request to digitally enhance a surveillance video,

used to corroborate Bean’s alleged criminal behavior,

on the basis that a higher resolution video would

refute testimony and impeach the credibility of several

witnesses;

(3) request for release from incarceration on the

basis of the following broadly-alleged constitutional

violations that ostensibly occurred during his criminal

trial:

(a) perjured testimony;

(b) unlawful detention by police during his arrest;

(c) physical abuse by police;

(d) insufficient indictment;

(e) unfair introduction of evidence;

(f) ineffective assistance of trial counsel;

(g) ineffective assistance of appellate counsel;

(h) prosecutorial misconduct; and

(I) judicial misconduct.

The superior court denied his petition on January 16, 2007. 

There is no indication that Bean sought further appellate review. 

Bean now brings the instant petition, which I liberally

construe to allege the following eleven grounds1 for federal

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instructions to the jury impermissibly amended his indictment,

which allegedly was insufficient. To the extent he wishes to

raise this ground, he should amend his federal petition

accordingly.

2In amending his petition, Bean is cautioned that habeas

corpus relief is not available on a Fourth Amendment claim where

the petitioner had a full and fair opportunity to raise the claim

in state court. See Stone v. Powell, 428 U.S. 465, 494 (1976)

(“[W]here the State has provided an opportunity for full and fair

litigation of a Fourth Amendment claim, a state prisoner may not

be granted federal habeas corpus relief on the ground that

evidence obtained in an unconstitutional search or seizure was

introduced at his trial.”). 

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habeas corpus relief:

1. violation of the Fourth Amendment right to be free

from unreasonable searches and seizures when

police officers arrested Bean without probable

cause and without a warrant;2

2. violation of the Fifth Amendment right to remain

silent and Miranda v. Arizona, 384 U.S. 436 (1966)

(holding that police officers must inform a

suspect of his Fifth Amendment privilege against

self-incrimination prior to initiating a custodial

interrogation) when the arresting police officers

failed to inform Bean of his privilege against

self-incrimination prior to initiating a custodial

interrogation;

3. the trial court erred by (a) improperly permitting

the State to refresh the victim’s recollection and

(b) improperly admitting hearsay evidence

concerning Bean’s alleged statements to the

victim;

4. the trial court erred by failing to appoint an

investigator to examine the ethics of the child

advocacy center on the basis that testimony

damaging to Bean’s case was elicited through

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improper suggestive interviewing techniques;

5. denial of the Sixth Amendment right to effective

assistance of trial counsel arising from counsel’s

failure to:

a. move to suppress testimony and/or false

statements made by two police officers;

b. move to suppress inculpatory statements made

by Bean;

c. interview the victim witness;

d. adequately cross-examine the victim witness;

e. move for a court-appointed investigator to

question the child victim;

f. investigate false statements made by the

arresting police officers, witnesses and a

detective;

g. raise certain objections at trial;

h. preserve issues for appeal;

i. call witnesses, including expert witnesses,

at trial;

j. conduct adequate cross-examinations at trial;

k. follow-up on Bean’s sentence review;

l. correct false arrest reports in Bean’s state

and federal criminal records;

m. investigate and depose certain witnesses who

allegedly made false statements;

n. move for a change of venue in light of the adverse

publicity of Bean’s criminal proceedings;

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3In amending his petition, Bean is cautioned that perceived

errors of state law generally are not cognizable under federal

habeas review. See Pulley v. Harris, 465 U.S. 37, 41 (1984) (“A

federal court may not issue the writ on the basis of a perceived

error of state law.”)

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o. move to digitally enhance a surveillance video,

used to corroborate Bean’s alleged criminal

behavior, on the basis that a higher resolution

video would refute testimony and impeach the

credibility of several witnesses; and

p. interrogate the jurors with regard to the verdict

against Bean.

6. denial of the Sixth Amendment right to effective

assistance of appellate counsel arising from

counsel’s failure to raise certain issues on

direct appeal;

7. denial of the Sixth Amendment right to a speedy

trial when Bean was arrested in October 2002 on a

charge of attempted kidnapping but was not

indicted for that offense until February 4, 2003;

8. prosecutorial misconduct arising from the

prosecution’s use of false and/or perjured

testimony and failure to admit into evidence a

transcript of the interview conducted by the child

advocacy center, which Bean alleges contained

exculpatory evidence; 

9. violation of the New Hampshire Rules of

Professional Conduct when the prosecution (a)

prosecuted a charge not supported by reasonable

evidence, (b) failed to ensure that Bean was

advised of his rights, (c) failed to timely

disclose exculpatory information and evidence and

(d) failed to exercise reasonable care with regard

to extrajudicial statements;3

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10. violation of the Fourteenth Amendment right to due

process when Bean’s conviction was obtained by

perjured and/or false testimony and statements by

certain witnesses, police officers and a

detective; and

11. judicial misconduct arising from the trial court’s

failure to declare a mistrial on the basis that

two child witnesses were incompetent to testify.

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,

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).

Discussion

I. Custody and Exhaustion

To be eligible for habeas relief, Bean must show that he is

in custody and has exhausted all state court remedies (or that he

falls within a narrow category of cases in which exhaustion is

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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 NCF and

thus is in custody. However, Bean fails to satisfy the second

requirement because the petition does not demonstrate that he has

fully exhausted his state remedies with regard to each claim. 

Nor has he alleged any facts to suggest that effective state

court remedies are unavailable to him.

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, 29 (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

powers of discretionary review, thereby alerting that court to

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4Although Bean’s federal petition includes one claim raised

in his state court appeal (alleging trial court error regarding

refreshing the victim’s recollection and admitting hearsay

evidence), he has not identified the federal nature of his claim.

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the federal nature of the claim)). “[T]he exhaustion principle

holds, in general, that a federal court will not entertain an

application for habeas relief unless the petitioner first has

fully exhausted his state remedies in respect to each and every

claim contained within the application.” Adelson v. DiPaola, 131

F.3d 259, 261 (1st Cir. 1997). 

In the instant petition, Bean raises eleven grounds for

federal habeas corpus relief. As to each ground raised in the

petition, there is no indication that he presented the claims and

the federal nature of the claims to the NHSC for review.4

Accordingly, Bean has failed to demonstrate exhaustion of state

remedies as to claims raised in his federal petition. To

demonstrate exhaustion of his claims, he must provide this Court

with copies of any motions, petitions, notices of appeal, briefs

and orders and/or final judgments pertaining to his state court

proceedings. See Smith v. Digmon, 434 U.S. 332, 333 (1978)

(discussing documents which would enable a federal court to

determine whether the grounds supporting the habeas petition had

been presented for review in the state courts). In particular,

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he should provide this Court with a copy of each notice of appeal

filed with the NHSC, his habeas corpus petition filed with the

superior court and any subsequent appeal. Bean may need to

return to the state courts to fully present his unexhausted

claims and the federal nature of each claim before he can make

the required amendment to his federal petition. 

II. Stay

The Supreme Court has held that a district court should stay

a habeas corpus petition if the petitioner has good cause for his

failure to exhaust, his unexhausted claims are potentially

meritorious, and there is no indication that he engaged in

intentionally dilatory litigation tactics. See Rhines v. Weber,

544 U.S. 269, 278-79 (2005) (permitting a federal district court

to stay a federal habeas action and hold the petition in abeyance

while the petitioner exhausts claims in state court). See also

Duncan v. Walker, 533 U.S. 167, 182-83 (2001) (Stevens, J.,

concurring) (district court may retain jurisdiction over a

meritorious claim and stay further proceedings pending the

complete exhaustion of state remedies). Staying unexhausted

claims may be the only appropriate course in cases in which an

outright dismissal threatens to imperil the timeliness of a

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collateral attack. Neverson v. Bissonnette, 261 F.3d 120, 126

n.3 (1st Cir. 2001); see also Delaney v. Matesanz, 264 F.3d 7, 15

n.5 (1st Cir. 2001) (recommending staying exhausted claims where

“there is a realistic danger that a second petition, filed after

exhaustion has occurred, will be untimely”). Because Bean may

need to return to the state courts to exhaust his unexhausted

claims, I will order the proceedings stayed and the petition held

in abeyance pending his complete exhaustion of state remedies. 

Conclusion

For the reasons stated above and because the claims raised

in the petition have not been exhausted, I will allow Bean an

opportunity to amend his petition to demonstrate exhaustion of

state remedies with regard to his claims and the federal nature

of those claims. To make this showing, he is instructed to

provide the court with a copy of his notice(s) of appeal to the

NHSC and any other relevant state court pleadings, orders or

decisions within thirty (30) days. 

 In the event he chooses to exhaust in state court, Bean must

commence the state court proceedings within thirty (30) days of

the date of this order. I will order the proceedings stayed and

the petition held in abeyance, pending complete exhaustion of

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state remedies. The stay will be issued under the following two

conditions:

1. Bean is ordered to contact this Court every 90

days, beginning from the date of entry of this

order, and inform the court of the status and

pendency of his state court proceedings, if any,

and the disposition of any appeal or related

matter. 

2. Within 30 days following any ruling and/or

notification by the New Hampshire Supreme Court on

the claims at issue, and the exhaustion of such

claims, Bean must notify this Court of the ruling

and submit all briefs or other pleadings filed in

the state court proceedings; he must also file a

request with this Court, stating that his state

court matter has been disposed of and that he

wishes to terminate the stay and have this Court

further consider his petition.

Failure to comply with either condition may result in

dismissal of the petition without prejudice.

SO ORDERED.

____________________________________

James R. Muirhead 

United States Magistrate Judge

Date: February 7, 2008

cc: Gerard Joseph Bean, pro se

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