UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Kenneth Violette

v. Civil No. 07-cv-047-PB

New Hampshire State Prison, Warden

O R D E R

Pro se petitioner Kenneth Violette has filed a petition for

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

challenging consecutive sentences imposed by the New Hampshire

Superior Court (document nos. 1 and 5). 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). 

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

not at this time make a facially sufficient showing that Violette

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

petition to demonstrate exhaustion of each claim before I will

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direct that the petition be answered. Violette also moves to

certify this action as a class on behalf of himself and fiftyfive other inmates incarcerated at the NHSP (document no. 3). 

For the reasons stated below, his motion for class certification

is denied.

Background

Violette was convicted on July 1, 1998 by the New Hampshire

Superior Court (Hillsborough County) of four counts of aggravated

felonious sexual assault pursuant to N.H. Rev. Stat. Ann. (“RSA”)

632-A:2 and one count of attempted aggravated felonious sexual

assault pursuant to RSA 629:1. He was sentenced to a term of

imprisonment, which he is currently serving at the New Hampshire

State Prison (“NHSP”). He did not file a direct appeal of his

conviction.

Subsequently, Violette filed with the superior court a

petition to correct illegal sentence. Although he has not

provided this Court with a copy of the petition, he allegedly

raised the following claims: (1) imposition of consecutive

sentences must be expressly authorized under New Hampshire law;

(2) constitutional fair notice requires that consecutive

sentences be explicit within the statutes; (3) “design of

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cumulative punishments, not expressly authorized by statute,

intrudes on legislative substantive lawmaking powers;” (4)

“judicial distortion of legislatively designed and

constitutionally mandated proportional punishments results in

disproportionate punishments;” and (5) “since the N.H. Criminal

Code lacks any consecutive sentencing authorization, it is

ambiguous and subject to lenity.” The superior court denied the

petition on April 19, 2006.

Violette subsequently filed an appeal with the New Hampshire

Supreme Court (“NHSC”). He has not provided this Court with a

copy of the appeal, and the record is silent as to the precise

issues raised therein. The record indicates, and Violette

concedes, that the NHSC deferred ruling upon his appeal pending

the court’s decision in Duquette v. Warden, NH State PrisonM, No.

2006-079, 2007 WL 120602 (N.H. Jan. 19, 2007).

 In the instant petition, Violette alleges the following two

grounds for federal habeas corpus relief:

1. Imposition of consecutive sentences under New

Hampshire law violates federal due process where: 

(a) fair notice is not provided regarding the 

risk of imposition of consecutive sentences; 

(b) ambiguities in the New Hampshire criminal

statutes are not construed in a defendant’s 

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1The precise issue raised in Ground Two is unclear. 

Accordingly, Violette is ordered to amend Ground Two of the

petition to identify his claim and the federal nature of his

claim.

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favor, in violation of the rule of lenity; and

(c) consecutive sentences are not authorized under

New Hampshire law (Ground One); and 

2. “Judicial use of UNGRANTED substantive punishment

design powers violated federal Due Process by

subjecting citizens to punishments that are

neither authorized nor Legislatively designed” 

(Ground Two).1

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).

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Discussion

I. Custody and Exhaustion

To be eligible for habeas relief, Violette 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

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 NHSP and

thus is in custody. However, Violette 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

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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

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, Violette raises two grounds for

federal habeas corpus relief. Although he alleges that the

claims and the federal nature of the claims were presented to the

NHSC for review, he has not provided this Court with a copy of

his state court appeal. Moreover, the record indicates, and

Violette concedes, that the NHSC deferred ruling upon his appeal

pending the court’s decision in Duquette v. Warden, NH State

Prison, No. 2006-079, 2007 WL 120602 (N.H. Jan. 19, 2007). 

Accordingly, he has failed to demonstrate exhaustion of state

remedies as to claims raised in his federal petition.

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To demonstrate exhaustion of his claims, Violette 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, he should provide this Court with a copy of the

notice of appeal filed with the NHSC. Violette is further

instructed to clarify Ground Two of the petition as his claim and

federal nature of his claim are unclear. He 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

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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

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”). Accordingly,

because it is clear that Violette is attempting to exhaust his

claims in state court, I will order the proceedings stayed and

the petition held in abeyance pending his complete exhaustion of

state remedies. 

III. Class Certification

Pursuant to Fed. R. Civ. P. 23, Violette moves to certify

this action as a class on behalf of himself and fifty-five other

inmates incarcerated at the NHSP (document no. 3). The proposed

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members of the class seek federal habeas corpus relief on the

basis that their consecutive sentences were imposed unlawfully. 

For the reasons stated below, Violette’s motion to certify the

class is denied.

It is well-established that pro se litigants are not

permitted to appear for others in federal courts. See HerreraVenegas v. Sanchez-Rivera, 681 F.2d 41, 42 (1st Cir. 1982) (“The

federal courts have consistently rejected attempts at third-party

lay representation.”). By law an individual may appear in

federal court only pro se or by legal counsel. Id. (citing 28

U.S.C. § 1654). With regard to class representation, “[a] pro se

plaintiff may not possess the knowledge and experience necessary

to protect the interests of the class as required by Rule

23(a)(4).” Avery v. Powell, 695 F. Supp. 632, 643 (D.N.H. 1988)

(denying pro se plaintiff’s motion for class certification

because of his inability to fairly and adequately protect the

interests of the class). Consequently, courts have declined to

certify a class where a pro se litigant will act as the

representative of the class. Id. This is particularly true

where, as here, a pro se prisoner requests certification to

represent a class of prisoners. See Oxendine v. Williams, 509

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F.2d 1405, 1407 (4th Cir. 1975) (holding that “it is plain error

to permit [an] imprisoned litigant who is unassisted by counsel

to represent his fellow inmates in a class action.”); Awala v.

Fed. Pub. Defender, 176 Fed. Appx. 334, 335 (3d Cir. 2006)

(unpublished) (declining to certify a class because a prisoner

acting pro se would not be able to adequately represent the

interests of the prisoners he sought to represent as a class);

Fowler v. Lee, 18 Fed. Appx. 164, 165 (4th Cir. 2001)

(unpublished) (holding that “it is plain error for a pro se

inmate to represent other inmates in a class action). In light

of the foregoing, Violette’s motion to certify this action as a

class (document no. 3) is denied. This denial is without

prejudice to his motion being renewed should he subsequently

retain counsel and seek class certification.

Conclusion

For the foregoing reasons and because the claims raised in

Violette’s petition have not been exhausted, I will allow him 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

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NHSC and any other relevant state court pleadings, orders or

decisions within thirty (30) days. 

 The proceedings will be stayed and the petition held in

abeyance, pending Violette’s complete exhaustion of state

remedies. The stay will be issued under the following two

conditions:

1. Violette is ordered to contact this Court

every 90 days, beginning from the date of entry of

this order, and inform this 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, Violette 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: April 6, 2007

cc: Kenneth Violette, pro se

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