UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

David Jerome Clough, Jr.

v. Civil No. 08-cv-114-JL

Warden, New Hampshire State Prison

REPORT AND RECOMMENDATION

Pro se petitioner David Jerome Clough, Jr. 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 no. 1). 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

recommend that the petition be dismissed without prejudice to

refiling.

Background

Convicted on March 29, 2006 by the New Hampshire Superior

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Court (Strafford County) of aggravated felonious sexual assault,

Clough was sentenced to a term of imprisonment. He is currently

incarcerated at the New Hampshire State Prison (“NHSP”). 

Clough filed a direct appeal of his conviction with the New

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

claim: the trial court erred by denying his motion for a thirtyday continuance so that he could retain the services of an expert

in the field of parental alienation syndrome. In an unpublished

order dated June 29, 2007, the NHSC affirmed his conviction. See

New Hampshire v. Clough, No. 06-0465, slip op. at 1 (June 29,

2007). The NHSC reasoned that “[w]hether to grant or deny a

continuance is within the trial court’s sound discretion.” Id.

(citing State v. Saucier, 128 N.H. 291, 295 (1986)). The court

added that “[h]aving reviewed the record before us, including the

trial court’s discussion with counsel in which it articulated its

reasons for denying the request and agreed to defense counsel’s

proposal to use the expert funding to confer with an additional

expert, we find no error.” Id. Clough did not seek further

appellate review.

He now brings the instant petition in which he raises only

one ground for federal habeas corpus relief: the trial court

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erred by denying his motion for a thirty-day continuance so that

he could retain the services of an expert in the field of

parental alienation syndrome. The claim raised in his federal

petition is identical to the claim raised in his state court

appeal.

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, Clough 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 NHSP and

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

requirement because the petition does not demonstrate that he has 

exhausted state remedies with regard to the federal nature of the

claim, if any, raised in his federal petition. 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

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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, Clough raises only one ground for

federal habeas corpus relief. The essence of his claim is that

the trial court failed to grant his motion for a continuance so

that he could retain an expert. While Clough presented his claim

to the NHSC for review, he failed to identify and present the

federal nature of the claim. Consequently, his claim is not

fully exhausted for purposes of federal habeas review. For the

reasons stated above, I recommend that the petition be dismissed,

but without prejudice to re-filing should Clough wish to exhaust

the federal nature of his claim in the New Hampshire state

courts.

Should Clough proceed in the state courts, he must identify

and present the federal nature of his claim; for example, if he

intends to allege a violation of his Sixth and Fourteenth

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1The Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), enacted on April 24, 1996, requires that prisoners

file applications for writs of habeas corpus within one year from

the date on which the challenged judgment becomes final. 28

U.S.C. § 2244(d)(1)(A). This limitation period begins to accrue

from the date of the final disposition of any direct appeal to

the state court of last resort and the conclusion of certiorari

review by the United States Supreme Court, or the running of the

ninety-day period in which to seek such review. 28 U.S.C. §

2244(d)(1)(A).

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Amendment rights, he should identify such claims in his state

court appeal. He is further instructed to comply with the oneyear statute of limitations and is cautioned to proceed

immediately if he elects to exhaust state remedies.1

Conclusion

For the reasons stated above, I recommend that Clough’s

habeas corpus petition be dismissed without prejudice to

refiling.

If this Report and Recommendation is approved, the claims as

identified herein will be considered for all purposes to be the

claims raised in the petition. If the petitioner disagrees with

the identification of the claims herein, he must do so by

objection filed within ten (10) days of receipt of this Report

and Recommendation, or he must properly move to amend the

petition. 

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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 Committee 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: June 12, 2008

cc: David Jerome Clough, Jr., pro se

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