UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Juan Acosta

v. Civil No. 06-cv-471-PB

Warden, New Hampshire State Prison

O R D E R

Juan Acosta has filed a petition for a writ of habeas corpus

(document no. 1), pursuant to 28 U.S.C. § 2254, challenging his

New Hampshire criminal conviction and sentence. The petition is

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

Governing § 2254 Cases in the United States District Courts (“§

2254 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). As discussed herein, I find that the

petition does not at this time make a facially sufficient showing

that Acosta is entitled to relief. I order, therefore, that

Acosta amend his petition to demonstrate that each of the claims

therein has been properly exhausted. See LR 4.3(d)(2)(B).

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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

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

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1Acosta’s petition states that Acosta received three

concurrent ten to twenty year sentences.

2Acosta has provided no specific information as to what he

was charged with or what constituted the factual basis of the

charges.

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meaningful consideration. See Eveland v. Dir. of C.I.A., 843

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

Background

In March of 2004, Acosta was sentenced to serve ten to

twenty years in the New Hampshire State Prison after a jury

trial.1 Acosta claims that his conviction was unconstitutional

because the Court failed to instruct the jury that, with regard

to one of the charges against Acosta, the jury had to agree

unanimously as to what action constituted the factual predicate

for the conspiracy offense charged.2 Acosta alleges that the

failure to instruct the jury properly allowed the jury to convict

even if the jurors did not agree on what action on Acosta’s part

constituted commission of a crime. Acosta alleges that the issue

of the unanimity of the jury was appealed to the New Hampshire

Supreme Court, which affirmed Acosta’s conviction.

Acosta further claims that his trial counsel was ineffective

for failing to object to the admission of testimony from a known

drug addict, because her testimony was in all likelihood made

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when she was under the influence of heroin. Moreover, Acosta

claims that soliciting the testimony of a witness under the

influence of heroin was an act of prosecutorial misconduct. 

Finally, Acosta alleges that the judge abused his discretion in

imposing an invalid sentence and allowing an invalid conviction

to stand.

Discussion

1. Custody and Exhaustion

To be eligible for habeas relief, Acosta must show that he

is both in 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. § 2241 and § 2254(a) & (b); see 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). Acosta satisfies the first requirement as he is currently

incarcerated. However, the petition does not establish

satisfaction of the exhaustion requirement.

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.

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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

state courts to give them the first opportunity to remedy the

claimed constitutional error). 

Acosta has not demonstrated that he exhausted his claim

alleging a violation of his right to a unanimous jury verdict. 

Acosta states that the claim was raised in his direct appeal to

the New Hampshire Supreme Court, but does not provide any

indication that the federal nature of the claimed right was

raised in that court. Acosta has not stated whether or not his

other claims, including the federal nature of those claims, were

raised in the state courts at all. Accordingly, in order to

proceed with this petition, Acosta must amend his petition to

demonstrate exhaustion of all of the claims he has raised here.

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2. Mixed Petition

“[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). If Acosta’s petition contains both

exhausted and unexhausted claims, and Acosta were to press his

petition without first exhausting all of the claims contained

therein, I would have to recommend dismissal of the entire

petition. See Nowaczyk v. Warden, N.H. State Prison, 299 F.3d

69, 75 (1st Cir. 2002) (citing Rose v. Lundy, 455 U.S. 509, 513-

21 (1982)). If the petition contains both exhausted and

unexhausted claims, the proper course of action would be to stay

this petition pending the exhaustion of all of the claims and

compliance with this Order. See Rhines v. Weber, 544 U.S. 269,

278 (2005) (a district court should stay a mixed petition

containing both exhausted and unexhausted claims if the

petitioner “had good cause for his failure to exhaust, his

unexhausted claims are potentially meritorious, and there is no

indication that the petitioner engaged in intentionally dilatory

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litigation tactics.”). At this time, I cannot determine whether

or not any of the claims have been properly exhausted in the

state courts. Accordingly, Acosta must amend his petition as

directed in order to properly advise this Court as to the

exhaustion status of each of his claims.

It should be noted that Acosta has the option of foregoing

his unexhausted claims, if any of his claims are in fact

unexhausted, and requesting that the Court proceed promptly with

consideration of only his exhausted claims, if he has exhausted

one or more of his current claims. Acosta should be advised that

if he does forego any of his claims, he will likely waive ever

having the foregone claims considered by this Court due to the

prohibition against second or successive federal habeas

petitions. See 28 U.S.C. § 2244; Pratt v. United States, 129

F.3d 54, 56-58 (1st Cir. 1997), cert. denied, 523 U.S. 1123

(1998).

3. Demonstration of Exhaustion

Acosta has alleged that his claim based on his right to a

unanimous jury verdict was presented to the New Hampshire Supreme

Court for consideration. Acosta has not provided motions,

notices of appeal or other pleadings brought in the state courts

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which demonstrate that the federal nature of this claim has been

fairly presented to, and thereby exhausted in, the state courts. 

As to the other claims raised in the petition: ineffective

assistance of trial counsel, improper sentence, and prosecutorial

misconduct, the petition is silent as to whether or how these

claims, including the federal nature of the claims, were

presented in the state courts. In order to demonstrate

exhaustion of all of his claims, Acosta must amend his petition

by submitting to this Court copies of all of the pleadings

presented to the state courts regarding the claims raised in this

petition, so that this Court can determine whether or not the

state courts have been given a fair opportunity to rule on the

claims raised here, including the federal nature of the claims,

to allow this action to proceed. 

Conclusion

Acosta is ordered to amend his petition within thirty days

of the date of this Order to notify this Court as to whether (1)

he has already exhausted any of his claims and to demonstrate

exhaustion here of any such claims, or (2) he intends to return

to the state court to complete exhaustion prior to amending his

petition to demonstrate exhaustion here, or (3) that he chooses

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to forego any currently unexhausted claims and proceed only on

those claims for which he can demonstrate exhaustion. If Acosta

chooses to exhaust his unexhausted claims prior to filing his

amended petition, he must commence state court action to exhaust

all of the unexhausted federal claims within thirty days of the

date of this Order. 

If Acosta notifies the Court that he intends to commence a

state court action to complete exhaustion of his claims, the

petition will be stayed pending exhaustion of Acosta’s

unexhausted claims. Once the petition is stayed to allow Acosta

to exhaust his claims, Acosta is ordered to contact this Court

every 90 days while seeking exhaustion of his claims, beginning

90 days from the date of the Order staying his petition, to

notify the Court that the matter is still pending in the state

courts and has not been decided, or to report any change in the

status of the state court proceedings. When the New Hampshire

Supreme Court has ruled on his federal constitutional claims, and

the claims are thus exhausted, Acosta must, within 30 days of

being notified of the Supreme Court’s final ruling, notify this

Court of that ruling, submit to this Court the New Hampshire

Supreme Court’s ruling, as well as all briefs or other pleadings

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3If this petition were to be dismissed for failing to

demonstrate exhaustion, the dismissal would be without prejudice

as it would be procedural and not based on the merits of Acosta’s

claims. See Slack v. McDaniel, 529 U.S. 473 (2000).

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filed in that court, and file a request that this Court further

consider his petition. If Acosta fails to comply with this

Order, I will recommend that his petition be dismissed for

failure to demonstrate exhaustion.3 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: January 4, 2007

cc: Juan Acosta, pro se

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