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UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Christopher M. Palermo

v. Civil No. 08-cv-127-JL

Superintendent, Merrimack County

Department of Corrections

O R D E R

Pro se petitioner Christopher M. Palermo has filed a

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

(document no. 1). Because he challenges his pre-trial detention

and does not attack the validity of a conviction or sentence, I

construe the petition to be filed pursuant to 28 U.S.C. § 2241. 

See Yellowbear v. Wyoming Attorney General, No. 06-8064, 2006 WL

748367 at *2 (10th Cir. March 21, 2008) (citations omitted)

(holding that Section 2241 is a vehicle for challenging pre-trial

detention or attacking the execution of a sentence, whereas

Section 2254 is the proper avenue for attacking the validity of a

conviction or sentence); accord Jackson v. Coalter, 337 F.3d 74,

79 (1st Cir. 2003); Dickerson v. Louisiana, 816 F.2d 220, 224

(5th Cir. 1987). 

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The petition is before me for preliminary review. See

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 Palermo is entitled to relief. 

I therefore order him to amend the petition to demonstrate

exhaustion of state remedies before I will direct that the

petition be answered.

Background

Palermo alleges that he is currently incarcerated as a pretrial detainee at the Merrimack County Department of Corrections

(“MCDOC”). He has filed the instant federal petition without

clearly identifying the basis of his pre-trial detention and

without providing this Court with copies of pleadings, orders or

other relevant documents regarding his state court proceedings

and confinement. The following facts are derived from his onepage petition. On August 30, 2007, Palermo allegedly was

arrested and charged with three counts of “false report of

explosives each being a class B felony.” The record is silent as

to the circumstances surrounding his arrest. 

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He now brings the instant petition in which he broadly

alleges the following three grounds for federal habeas corpus

relief:

1. violation of the Eighth Amendment right to be free

from cruel and unusual punishment on the basis that the

trial court imposed excessive bail; 

2. denial of the Sixth Amendment right to a speedy

trial on the basis that Palermo was arrested on August

30, 2007 and has not been brought to trial as of this

date; and

3. denial of the Sixth Amendment right to confront

witnesses on the basis that the delay in trial

prevented Palermo from conducting interviews of certain

witnesses.

Palermo has not alleged that he is in custody pursuant to a state

court judgment and conviction, and the record is silent as to

whether he has been convicted or sentenced since the filing of

the instant federal habeas petition. 

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

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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

Section 2241 extends habeas relief to a prisoner who “is in

custody in violation of the Constitution or laws or treaties of

the United States.” 28 U.S.C. § 2241(c)(3); see also Stringer v.

Williams, 161 F.3d 259, 262 (5th Cir. 1998). “Although § 2241

does not include a statutory exhaustion requirement comparable to

that found at § 2254(b), federal courts have consistently

recognized that the principles of comity and federalism require

state pre-trial detainees to present their constitutional claims

in state court before seeking federal habeas corpus relief under

§ 2241.” See Politano v. Miller, No. 08-238 (PJS/FLN), 2008 WL

906300, slip op. at *3 (D. Minn. March 31, 2008)(citing

Dickerson, 816 F.2d at 225 (“Despite the absence of an exhaustion

requirement in the statutory language of section 2241(c)(3), a

body of case law has developed holding that although section 2241

establishes jurisdiction in the federal courts to consider preCase 1:08-cv-00127-JL Document 6 Filed 05/15/08 Page 4 of 9
1In amending his petition, Palermo should clarify his dates

of confinement at the MCDOC and the Coos County Department of

Corrections.

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trial habeas corpus petitions, federal courts should abstain from

the exercise of that jurisdiction if the issues raised in the

petition may be resolved either by trial on the merits in the

state court or by other state procedures available to the

petitioner.”)). 

Accordingly, to be eligible for habeas relief, Palermo must

show that he is in custody, see 28 U.S.C. § 2241(c)(3), and that

he has exhausted all state court remedies, see Stringer, 161 F.3d

at 262, Dickerson, 816 F.2d at 225. See also Duncan v. Henry,

513 U.S. 364, 365 (1995)(explaining the exhaustion requirement). 

He satisfies the first requirement as he is currently confined at

the MCDOC1 and thus is in custody. However, Palermo fails to

satisfy the second requirement because the petition does not

demonstrate that he has fully exhausted his state remedies with

regard to the claims in his petition.

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.

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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

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, Palermo raises three grounds for

federal habeas corpus relief. There is no indication that he

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

New Hampshire superior court or to the New Hampshire Supreme

Court for review. Accordingly, I will afford him an opportunity

to amend his petition to demonstrate exhaustion. 

To demonstrate exhaustion, Palermo must provide this Court

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with copies of any motions, petitions, notices of appeal, briefs

and any other 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). To the

extent his claims are unexhausted, he may need to return to the

state courts to fully present his unexhausted claims and the

federal nature of the claims 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

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

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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”). For the foregoing

reasons, and because it is unclear whether Palermo was convicted

and sentenced after he filed the instant federal habeas petition, 

I will order the proceedings stayed and the petition held in

abeyance pending his complete exhaustion of state remedies.

Conclusion

For the reasons stated above, I will allow Palermo an

opportunity to amend his petition to demonstrate exhaustion of

state remedies. The Clerk’s Office is directed to provide the

him with a copy of the Court’s pro se manual to assist him in

preparing an amended petition. 

Should Palermo decide to proceed in state court, he must

commence the state court proceedings within thirty (30) days of

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the date of this order. I will order the proceedings stayed and

the petition held in abeyance pending his complete exhaustion of

state remedies. The stay will be issued under the following two

conditions:

1. Palermo is ordered to contact this Court every

90 days, beginning from the date of entry of this

order, and inform the 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, Palermo 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: May 15, 2008

cc: Christopher M. Palermo, pro se

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