1Campney is incarcerated at the Bare Hill Correctional

Facility in Malone, New York, serving concurrent sentences for

convictions in both New York and New Hampshire.

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Randy S. Campney

v. Civil No. 06-cv-297-JD

Bare Hill Correctional

Facility, Superintendent

O R D E R

Randy S. Campney, proceeding pro se, seeks habeas corpus

relief, pursuant to 28 U.S.C. § 2254, from his conviction in

Grafton County Superior Court on charges of burglary and theft by

unauthorized taking. The Superintendent of Bare Hill

Correctional Facility (“Superintendent”) moves for summary

judgment.1 Campney objects. 

Discussion

On preliminary review, the magistrate judge found that

Campney’s petition did not show that his claims had been

exhausted and gave him an opportunity to amend his petition to

demonstrate exhaustion, or, if the claims had not been exhausted,

to either withdraw his claims or to notify the court that he was

Case 1:06-cv-00297-JD Document 62 Filed 08/26/08 Page 1 of 4
2

proceeding in state court to exhaust. Campney notified the court

that he was proceeding in state court to exhaust his claims. 

He filed a motion in Grafton County Superior Court to vacate

the verdict and to dismiss the indictments against him, which was

denied, but the court stated that the grounds he raised could

support a motion for a new trial. Campney appealed the denial of

his motion to vacate to the New Hampshire Supreme Court and also

filed a motion for a new trial. The New Hampshire Supreme Court

declined his appeal of the decision denying his motion to vacate. 

Campney notified this court of the resolution of his motion to

vacate but failed to mention his motion for a new trial. 

The magistrate judge reviewed the petition in light of the

state court’s decision on Campney’s motion to vacate the verdict

and to dismiss the indictments. The magistrate concluded that

Campney had exhausted eight of the twelve claims he raised in

support of his habeas petition and recommended dismissal of the

remaining four claims. No objection was filed, and the report

and recommendation was approved on May 18, 2007.

In his motion for summary judgment, the Superintendent

contends that Campney failed to exhaust his claims because he has

a pending motion for a new trial in Grafton County Superior

Court. The Superintendent argues, persuasively, that because

that motion could grant Campney the relief he is seeking here,

Case 1:06-cv-00297-JD Document 62 Filed 08/26/08 Page 2 of 4
2Campney did not file an order or decision on the motion for

a new trial.

3

this court should not consider Campney’s habeas petition until

the state court proceeding is concluded. Campney states,

however, that he filed the motion for a new trial, which is

captioned for the Grafton County Superior Court, in the New

Hampshire Supreme Court. He says that the supreme court chose

not to consider his motion for a new trial.2 

The status of Campney’s motion for a new trial is unclear. 

If Campney’s motion is pending in superior court, as the

Superintendent contends, this court will not consider his habeas

petition until that action is resolved. If, on the other hand,

Campney filed the motion with the supreme court and that court

denied the motion, the motion is no longer pending. The court

will not consider Campney’s claims until the issue, of whether a

motion for a new trial is pending, is resolved. 

The Superintendent also contends that Campney procedurally

defaulted most of his claims by waiving them on direct appeal. 

Procedural default has become a frequent issue in habeas

proceedings in this court. See, e.g., Pelletier v. Warden, 2008

WL 3200730, at *3-*4 (D.N.H. Aug. 6, 2008); Belton v. Blaisdell,

--- F. Supp. 2d ---, 2008 WL 925153, at *10-*11 (D.N.H. Apr. 2,

2008); Gray v. Cattell, 2008 WL 649234, at *3 (D.N.H. Mar. 4,

Case 1:06-cv-00297-JD Document 62 Filed 08/26/08 Page 3 of 4
4

2008). If the superior court addresses Campney’s claims in his

motion for a new trial on the merits, those claims may not be

procedurally defaulted. See, e.g., Belton 2008 WL 925153, at

*11-*12. Therefore, the issue of procedural default cannot be

considered until the motion for a new trial is resolved.

Conclusion

For the foregoing reasons, the respondent’s motion for

summary judgment (document no. 58) is denied without prejudice.

On or before September 5, 2008, the respondent shall file

and serve on the petitioner a report as to the current status of

the motion for a new trial. If the motion has been resolved and

no related matters are pending in state court, a copy of the

relevant order or orders shall be filed. If the motion is

pending, the respondent shall file a detailed statement about the

current status of the motion. Thereafter, the respondent shall

file a status report on the first day of each month until the

pending motion is resolved. 

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

August 26, 2008

cc: Randy S. Campney, Sr., pro se

Stephen D. Fuller, Esquire

Case 1:06-cv-00297-JD Document 62 Filed 08/26/08 Page 4 of 4