UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Philip Geary

v. Civil No. 06-cv-334-SM

Bruce Cattell, Warden,

Northern New Hampshire

Correctional Facility

REPORT AND RECOMMENDATION

Philip Geary has filed a petition for a writ of habeas

corpus (document no. 1) pursuant to 28 U.S.C. § 2254. The matter

is before me for preliminary review. See Rule 4 of the Rules

Governing § 2254 proceedings (requiring initial review to

determine whether the petition is facially valid). As discussed

herein, I find that the petition is not facially valid as it does

not demonstrate exhaustion of the claims raised in Geary’s

petition. 

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.

LR 4.3(d)(2). In conducting the preliminary review, the Court

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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 plaintiff 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 C.I.A., 843

F.2d 46, 49 (1st Cir. 1988). 

Background

On February 5, 2004, Geary was convicted of multiple

felonies after a jury trial in the Strafford County Superior

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1In his federal petition, Geary alleges five claims of

prosecutorial misconduct, six claims of ineffective assistance of

counsel, and one claim that his sentence is illegal. Geary has

not provided this Court with any pleadings filed in state court.

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Court. Geary was sentenced to four separate 10 - 30 year prison

terms and one 3 1⁄2 - 7 year prison term. His 10 - 30 year

sentences were imposed consecutively to one another such that

Geary’s total sentence is 40 - 120 years. Geary claims that

after trial, he requested that his attorney appeal his

conviction, but that his attorney never filed a notice of appeal. 

Geary attempted to file a pro se notice of appeal in April of

2004 which was ruled untimely by the New Hampshire Supreme Court. 

On October 1, 2005, Geary filed a motion for a new trial in the

state Superior Court. Geary admits that his motion for a new

trial, which he alleges contains the same claims as his petition

before this Court,1 is still pending in the state court.

Discussion

Under 28 U.S.C. § 2254, the federal courts are authorized to

“entertain an application for a writ of habeas corpus in behalf

of a person in custody pursuant to a judgment of a state court

only on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.” To be

eligible for habeas relief, Geary must show that he is both in

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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 also Braden v. 30th Jud. Cir. Ct. of Ky., 410

U.S. 484, 489-92 (1973); Benson v. Super. Ct. Dep’t of Trial Ct.

of Mass., 663 F.2d 355, 358-59 (1st Cir. 1981). Geary satisfies

the first eligibility requirement as he is currently serving his

sentence and is thus in custody. However, at this time, the

petition neither demonstrates that Geary has fully exhausted his

state remedies, nor that effective state 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, Maloney

v. Lanigan, 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

Picard v. Connor, 404 U.S. 270, 275 (1971) (requiring petitioner

to have fairly presented the federal nature of his claims to the

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state courts to give them the first opportunity to remedy the

claimed constitutional error). “[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) (emphasis added). 

Geary concedes that the claims are not yet exhausted, but

are all pending in the state trial court. It is not clear

whether or not Geary presented any of these claims to the New

Hampshire Supreme Court in his April 2004 attempt to proceed with

a pro se state court appeal. 

Additionally, Geary has not alleged facts sufficient to show

that the state corrective process was inadequate. Geary’s

efforts at appeal were denied as untimely, and his counsel failed

to file a notice of appeal, but nothing in the petition suggests

that state processes generally provided for seeking relief were

not available to Geary. Further, Geary is currently litigating

these issues by utilizing the state’s post-conviction corrective

processes. Accordingly, I find that Geary has not alleged facts 

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sufficient to demonstrate that he should be excepted from the

rule requiring exhaustion.

Because Geary concedes that he has not yet exhausted his

state court remedies, I recommend that this action be dismissed

without prejudice to refiling once the claims have been exhausted

in state court. This recommendation is in no way a comment on

whether or not the claims raised in the petition are

substantively meritorious or timely filed. If a new petition is

filed after the claims are fully exhausted, preliminary review

pursuant to § 2254 Rule 4 will be conducted. 

Conclusion

Any objections to this Report and Recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

Law Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992); United

States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: September 18, 2006 

cc: Philip Geary, pro se

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