UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

William J. Carey

v. Civil No. 07-cv-380-SM

Larry Blaisdell, Warden,

Northern New Hampshire

Correctional Facility

O R D E R

Before the Court is William Carey’s petition for a writ of

habeas corpus (document no. 1), filed pursuant to 28 U.S.C. §

2254. The matter is before me for preliminary review to

determine whether or not the claims raised in the petition are

facially valid and may proceed. See Rule 4 of the Rules

Governing Section 2254 cases in the United States District Courts

(“§ 2254 Rules”); United States District Court District of New

Hampshire Local Rule (“LR”) 4.3(d)(2) (authorizing magistrate

judge to preliminarily review pro se prisoner filings pursuant to

28 U.S.C. § 1915A).

Standard of Review

Under this Court’s local rules, when an incarcerated

plaintiff commences an action pro se and in forma pauperis, the

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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, however inartfully pleaded. 

See Erickson v. Pardus, ___ U.S. ___, 127 S. Ct. 2197, 2200

(2007) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and

Haines v. Kerner, 404 U.S. 519, 520-21 (1972) 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.” See

Castro v. United States, 540 U.S. 375, 381 (2003) (noting that

courts may construe pro se pleadings so as to avoid

inappropriately stringent rules and unnecessary dismissals of

claims); Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). 

All of the factual assertions made by a pro se plaintiff and

inferences reasonably drawn therefrom must be accepted as true. 

See id. This review ensures that pro se pleadings are given fair

and meaningful consideration.

Background

William Carey was convicted of stalking, after a jury trial

in which he eschewed the representation of counsel and instead

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1The claims as identified herein will be considered to be

the claims raised in the petition for all purposes. If Carey

objects to the identification of the claims here, he must do so

by objecting to this Report and Recommendation or by properly

moving to amend his petition.

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represented himself. Carey was sentenced to serve 3 1⁄2 - 7 years

in the New Hampshire State Prison. 

Carey appealed his conviction, and the denial of his

pretrial and post-conviction motions, to the New Hampshire

Supreme Court (“NHSC”). Although he filed a pro se notice of

appeal after his conviction, Carey was provided with courtappointed counsel for his appeal. Carey’s appellate attorney

briefed two issues on appeal, although, Carey claims, thirty-four

meritorious issues had been preserved at trial and listed in

Carey’s notice of appeal. Carey moved to supplement his

attorney’s brief with a brief containing thirteen additional

issues. The NHSC granted Carey’s motion in part, allowing Carey

to file a pro se supplemental brief on four issues. The NHSC

affirmed Carey’s conviction on October 12, 2007. 

Carey now brings this petition, raising fifteen claims for

relief:1

1. Carey’s Fifth, Sixth, and Fourteenth Amendment rights 

to due process were violated by the prosecution’s 

failure to provide him with requested exculpatory 

discovery in that they failed to turn over the 

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existence and identity of a witness to the alleged 

crime;

2. Carey’s Fifth, Sixth, and Fourteenth Amendment rights 

to due process were violated by the prosecution’s 

failure to provide him with requested exculpatory 

discovery regarding the complainant’s history of 

psychological difficulties that impacted her 

credibility;

3. Carey’s Fourth Amendment rights were violated when he 

was convicted by use of evidence that was seized 

pursuant to an unconstitutionally general warrant;

4. Carey’s Sixth Amendment right to an impartial jury was 

denied when prejudicial and nonprobative evidence of 

Carey’s private writings, that preceded the alleged 

offense by four years, was presented to the jury to 

demonstrate that the complainant was afraid of Carey, 

although that was not an element of the offense with 

which Carey was charged;

5. Carey’s Sixth Amendment right to an impartial judge was

denied when the trial judge failed to recuse himself, 

despite Carey having previously filed a complaint 

against the trial judge with the judicial conduct 

committee, and the trial judge having been a colleague 

of another judge who had been recused from Carey’s 

case;

6. Carey’s Sixth Amendment right to an impartial judge was

denied when the trial judge denied Carey’s motions 

without a hearing;

7. Carey’s Sixth Amendment right to an impartial judge was

denied when the trial judge made comments evincing bias

against Carey during the trial;

8. Carey’s Sixth Amendment right to an impartial judge was

denied because the trial judge did not hear most of the

testimony in the case due to his hearing impairment;

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9. Carey’s Sixth Amendment right to an impartial judge was

denied when the trial judge, at Carey’s sentencing, 

evinced bias against Carey by allowing the complainant 

to testify from a position where she would not have to 

look at Carey, and because, after hinting at a 

probation-only disposition, sentenced Carey to a term 

of incarceration;

10. Carey was denied his Sixth Amendment right to the 

effective assistance of trial counsel when he was 

forced to discharge his court-appointed attorney and 

proceed pro se because the prosecution coerced Carey’s 

attorney into hiding the existence and identity of a 

witness to the alleged crime;

11. Carey was denied his Sixth Amendment right to the 

effective assistance of appellate counsel because 

Carey’s appellate attorney failed to make a meaningful 

effort to pursue Carey’s rights on appeal when he 

failed to appeal a properly preserved Fourth Amendment 

claim;

12. Carey was denied his Sixth Amendment right to the 

effective assistance of appellate counsel because 

Carey’s appellate attorney failed to challenge the 

misrepresentation of documents to the jury by 

prosecutors at trial;

13. Carey was denied his Sixth Amendment right to the 

effective assistance of appellate counsel when Carey’s 

appellate attorney inaccurately portrayed the facts in 

his brief, in order to prejudice the NHSC against 

Carey;

14. Carey was denied his Fourteenth Amendment right to be 

convicted with sufficient evidence when the complainant

in the case could not identify the item that Carey was 

alleged to have sent to her, when sending the items was

the act that was alleged to have constituted an 

essential element of the stalking charge;

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15. Carey was denied his Fourteenth Amendment right to due 

process when he was subjected to a malicious 

prosecution in which the prosecutors encouraged and 

abetted perjury by a witness and presented testimony of

the complainant which was contrary to testimony the 

complainant had offered in an earlier trial.

Discussion

I. Custody and Exhaustion

To be eligible for habeas relief, Carey must show that he is

both in custody and has exhausted all of his State court

remedies, or that he is excused from exhausting those remedies

because of an absence of available or effective State corrective

processes. See 28 U.S.C. § 2254(a) & (b); see also Adelson v.

DiPaola, 131 F.3d 259, 261 (1st Cir. 1997) (citing authority to

explain the exhaustion principle). Carey is presently

incarcerated and thus satisfies the custody requirement of the

statute.

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 claims. See Lanigan v. Maloney, 853 F.2d 40, 42

(1st Cir. 1988) (“habeas corpus petitioner must have presented

the substance of his federal constitutional claim[s] to the state

appellate courts so that the state had the first chance to

correct the claimed constitutional error”); see also Picard v.

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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). “In order to exhaust a claim, the

petitioner must ‘present the federal claim fairly and

recognizably’ to the state courts, meaning that he ‘must show

that he tendered his federal claim in such a way as to make it

probable that a reasonable jurist would have been alerted to the

existence of the federal question.’” Clements v. Maloney, 485

F.3d 158, 162 (1st Cir. 2007) (quoting Casella v. Clemons, 207

F.3d 18, 20 (1st Cir. 2000) (internal citations omitted)). 

In order to satisfy the requirement to “fairly present” his

federal claim to the State courts, a petitioner must have “fairly

presented” the claim to the State courts “in such a way that ‘a

reasonable jurist’ would have recognized ‘the existence of the

federal question.’” Josselyn v. Dennehy, 475 F.3d 1, 3 (1st Cir.

2007) (quoting Casella, 207 F.3d at 20). A petitioner may fairly

present a claim by: (1) citing a provision of the federal

constitution, (2) presenting a federal constitutional claim in a

manner that fairly alerts the State court to the federal nature

of the claim, (3) citing federal constitutional precedents, (4)

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2All of the documents attached to Carey’s petition will be

considered to be part of the petition. See Fed. R. Civ. P. 10(c)

(requiring that written instruments attached to a pleading be

construed as part of the pleading “for all purposes”).

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claiming violation of a right specifically protected in the

federal constitution, or, in some circumstances, (5) citing to

State court decisions that rely on federal law or articulation of

a State claim that is indistinguishable from one arising under

federal law. Clements, 485 F.3d at 162 (citing Gagne v. Fair,

835 F.2d 6, 7 (1st Cir. 1987) and Nadworny v. Fair, 872 F.2d

1093, 1099-1100 (1st Cir. 1989)); cf. Martens v. Shannon, 836

F.2d 715, 717 (1st Cir. 1988) (finding that simply reciting facts

underlying a State claim, where those facts might support either

a State or federal claim, without more, is clearly inadequate to

constitute fair presentation of a federal claim to State court). 

Carey has filed a number of documents attached to his

petition.2 The only submitted documents that shed any light on

whether not the claims raised here have been exhausted, are: (1)

a single page of Carey’s pro se notice of appeal, filed in the

NHSC after Carey’s trial, (2) “Defendant’s Proposed Addendum to

Appellate Defender Brief,” filed by Carey in the NHSC, (3)

“Motion To File ‘Pro Se’ Supplemental Brief,” filed by Carey in

the NHSC, (4) pages 4-6 of “Defendant’s ‘Pro Se’ Supplemental

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3The notice of appeal form directs appellants to state

“specific questions to be raised on appeal, expressed in terms

and circumstances of the case, but without unnecessary detail.”

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Brief,” filed by Carey in the NHSC, and (5) “Defendant’s Motion

for Reconsideration,” filed by Carey in the NHSC.

The submitted page of Carey’s notice of appeal lists the

following 34 questions to be considered by the NHSC3:

1. Did the Court err, as a matter of law, in denying 

Motion to Quash Defective Indictment? 

2. Did the Court err, as a matter of law, in denying 

Defendant’s Notice of Alibi?

3. Did the Court err in denying Defendant’s Motion to 

Dismiss for Lack of Jurisdiction?

4. Did the Court err, as a matter of law, in denying 

Interlocutory Appeal of jurisdictional issue?

5. Did the Court err, as a matter of law, in denying 

Defendant’s motions en masse without hearing?

6. Did the Court err, as a matter of law, in extending 

deadlines for State’s motions to object?

7. Did the Court err, as a matter of law, in denying 

Defendant “Missing Witness” jury instruction on 

Winguay, as well as “Laudable Motive” jury instruction?

8. Did the Court err, as a matter of law, in denying 

Motion to Dismiss for Lack of Evidence?

9. Did the Court err, as a matter of law, in denying 

Defendant’s Motion to Dismiss for Lack of Speedy Trial?

10. Did the Court err in denying In Camera Review of MPD 

Officer Steven Olson’s personnel file?

11. Did the court err in denying Defendant’s Motion for 

Psych. Eval. of State’s Witness Kristi Eglody?

12. Did the Court err in denying Defendant’s Motion for 

Additional Law Library Time?

13. Did the Court err in impermissibly coercing Defendant 

to choose amongst constitutional rights?

14. Was Defendant’s constitutional right to Compulsory 

Process for Obtaining Witnesses violated?

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15. Was Defendant’s constitutional right to Confrontation 

violated?

16. Was Defendant’s constitutional right to Effectiveness 

of Counsel violated?

17. Was Defendant’s constitutional right to be free from 

Excessive Bail violated?

18. Was Defendant’s constitutional right to be free from 

Cruel and Unusual Punishment violated?

19. Was Defendant’s constitutional right to be free from 

Double Jeopardy violated?

20. Were Defendant’s rights regarding res judicata and 

collateral estoppel violated?

21. Was Defendant’s constitutional right to Due Process 

violated?

22. Was Defendant’s constitutional right to Equal 

Protection violated?

23. Was Defendant’s constitutional right to Fair Trial 

violated?

24. Was Defendant’s constitutional right to an Impartial 

Judge violated?

25. Was Defendant’s constitutional right to an Impartial 

Jury violated?

26. Was Defendant’s constitutional right to be free from 

Malicious Prosecution violated?

27. Was Defendant’s constitutional right to be free from 

Selective Prosecution violated?

28. Did the Court violate Defendant’s N.H. Constitutional 

right to “present all proofs favorable?”

29. Did the Court violate N.H. Rules of Evidence 402 and 

403?

30. Did the Court err in making jury aware of Defendant’s 

incarceration at jury selection?

31. Did the Court err in allowing into trial Prosecution’s 

“evidence of Defendant’s” prior bad acts but NOT 

allowing in Defendant’s documentation of criminal acts 

committed by the [Manchester Police Department and the 

Merrimack County Attorney’s Office]?

32. Did the Court err in trying Defendant for a FELONY with

Motions for New Trial STILL pending on the PRIOR 

misdemeanor conviction WHICH ALLOWED ENHANCEMENT OF 

INSTANT CHARGE TO FELONY?

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33. Did the Court err, as a matter of law, in denying 

Defendant’s Motion to Set Aside Jury Verdict and 

Redirect Verdict for the Defendant?

34. Did the Court err, as a matter of law, in denying 

Defendant’s Motion for New Trial?

“Defendant’s Proposed Addendum to Appellate Defender Brief,” sets

out the federal constitutional basis for Carey’s claim that

evidence at trial had been unconstitutionally seized from him

based on a violation of the Fourth Amendment. Carey’s “Motion To

File ‘Pro Se’ Supplemental Brief” sets out an argument in support

of Carey’s right to an impartial judge, citing a State case that

relies on federal caselaw, to wit, State v. Ayer, 150 N.H. 14,

35-36, 834 A.3d 277, 296-96 (2003), which cites federal cases to

explain when recusal by a trial judge is or is not warranted in

order to protect the impartiality of the trial court. That

motion also specifically presents a Sixth Amendment argument in

support of Carey’s claim that he was denied the right to an

impartial jury. “Defendant’s Pro Se Supplemental Brief,”

containing Carey’s argument objecting to the trial court’s denial

of Carey’s subpoenas, denial of a psychiatric evaluation of the

complaint, and denial of defense witnesses, cited the Fifth,

Sixth, and Fourteenth Amendments to the United States

Constitution, and also raised a federal constitutional argument

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concerning the prosecution’s alleged failure to provide Carey

with exculpatory discovery materials in a timely fashion.

In “Defendant’s Motion For Reconsideration,” Carey argues

that his appellate counsel failed to provide him with

constitutionally sufficient representation. The pleading,

however, did not specifically cite the federal or State

constitutional right to the effective assistance of counsel, but

rather described appellate counsel’s efforts on Carey’s behalf as

“unconstitutionally” weak.

Carey has also submitted portions of the trial transcript

which indicate that, at trial, Carey asserted his federal

constitutional right to confront the witnesses against him, and

his federal due process right to present exculpatory evidence. 

It can be presumed that the NHSC, in conducting it’s review of

the trial in this case, was aware of the contents of the trial

transcripts.

A. Exhausted Claims

Comparing the fifteen constitutional claims raised in this

petition with what Carey has demonstrated that he filed in the

NHSC, I find that Carey has clearly and specifically exhausted

the claims in this petition numbered 1, 2, 4 & 5 by arguing the

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specific constitutional provisions raised here to the NHSC,

either in his motion seeking permission to file a pro se

supplemental brief, or in the pro se supplemental brief itself. 

Accordingly, I find that those four claims have been exhausted.

As to the claims numbered 7 - 13 and 15, Carey, in his

notice of appeal, listed these claims as “constitutional” issues,

but did not specify, at least in the documents provided to the

Court thus far, whether the constitutional violations were

federal or State constitutional violations, or, if federal, what

specific constitutional provision he was invoking. It is not

clear that this was the only information presented to the NHSC

for these claims. It may well be that the notice of appeal or

other pleadings filed clarified that issue. At this time,

exhaustion of claims 7-13 and 15 is, at best weakly demonstrated. 

However, construing the pleadings liberally and in the light most

favorable to the petitioner, and applying the standard set out

above for “fair presentation” of an issue to the NHSC, I find

that Carey has alleged the minimum facts necessary to show that

he presented his constitutional issues to that Court in such a

way that it is “probable that a reasonable jurist would have ben

alerted to the existence of the federal question” posed. See

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Clements, 485 F.3d at 162. I find, therefore, that Carey has

demonstrated that claims 7-13 and 15 have been exhausted for

purposes of preliminary review.

B. Unexhausted Claims

Carey has failed to allege sufficient facts, however, to

demonstrate exhaustion of two of his claims. Claims 6 and 14

were both raised in the notice of appeal, but not as

constitutional issues. Nothing in Carey’s federal habeas

petition demonstrates that the NHSC has been alerted to the

federal nature of these claims. Accordingly, I will give Carey

the opportunity to amend his complaint to either demonstrate that

claims 6 and 14 have been exhausted or to voluntarily dismiss

claims 6 and 14 from this action.

C. Mixed Petition and Stay

“[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, 131 F.3d at 261 (emphasis added). As

Carey’s petition contains both exhausted and unexhausted claims,

if he were to press his petition without first exhausting all of

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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)). Where a petition contains both

exhausted and unexhausted claims, the proper course of action is

to stay the petition pending the exhaustion of all of the claims

contained therein. 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 litigation

tactics.”). Accordingly, to pursue any of the claims raised in

this Court, Carey must demonstrate exhaustion of claims 6 and 14. 

If Carey has not yet exhausted claims 6 and 14, including

the federal nature of those claims, I will allow him the

opportunity to return to the State court to exhaust those claims. 

To that end, I will direct that this matter be stayed in order to

allow Carey the opportunity to return to the State courts to

complete exhaustion, if Carey notifies the Court within thirty 

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days of the date of this Order that he will return to the State

courts to complete exhaustion of those claims.

It should be noted that Carey has the option of foregoing

his unexhausted claims and requesting that this Court proceed

promptly with consideration of his exhausted claims. Carey

should be advised, however, 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).

II. Fourth Amendment Claim

Carey raises one claim, number 3 above, that alleges that

his conviction was unconstitutional because it was obtained by

use of evidence that was seized in violation of Carey’s Fourth

Amendment rights. Where State courts have provided an

opportunity to a federal habeas petitioner for full and fair

litigation of a Fourth Amendment claim, the petitioner cannot

obtain habeas corpus relief on the grounds that evidence obtained

as a result of an unconstitutional search or seizure was

introduced at his trial. See Stone v. Powell, 428 U.S. 465, 482

(1976); Sanna v. DiPaolo, 265 F.3d 1, 8 (1st Cir. 2001) (“a

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federal habeas court ordinarily cannot revisit a state court’s

disposition of a prisoner’s Fourth Amendment claims.”). Carey

alleges in claim 3 that his Fourth Amendment rights were violated

when an impermissibly general search warrant was improperly

issued, the State courts failed to suppress the evidence, and the

evidence seized as a result of the search conducted pursuant to

that warrant was used to incriminate him at trial. Carey’s

petition indicates that he was provided with the opportunity to

litigate his Fourth Amendment issues in the State courts and that

he did, in fact, litigate the Fourth Amendment issue. 

Accordingly, I find that under Stone and Sanna, Carey’s Fourth

Amendment claim, numbered 3 in this petition, is not cognizable

in a federal habeas action. 

When Carey amends his petition to demonstrate exhaustion of

claims 6 and 14, he should, at that time, voluntarily dismiss the

Fourth Amendment claim. If he does not seek voluntary dismissal,

I will recommend dismissal of this claim when the amended

petition comes before me for preliminary review.

Conclusion

Carey is ordered to either: (1) forego his currently

unexhausted claims, (2) return to the State courts to exhaust his

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claims, and then (3) to amend his petition to demonstrate

exhaustion of his claims. Specifically, Carey is directed to:

1. Advise this Court within thirty (30) days of the date

of this Order if he chooses to forego his unexhausted claims. If

the Court receives this notice, the stay will be lifted and the

exhausted claims promptly considered.

 2. If Carey intends to return to the State courts to

exhaust his unexhausted claims so that they may be considered

here, he must so notify this court, and commence his State court

action, within thirty (30) days of the date of this Order. 

3. Carey must notify this Court in writing of the status

of the State court proceedings every ninety (90) days. 

4. When the claims are fully exhausted in the State

courts, Carey must, within thirty (30) days of receiving the

final NHSC decision, notify this Court that the State court

litigation is concluded and provide this Court with the

documentation of exhaustion of his claims at that time. To

satisfy this Order, Carey must provide this Court with complete

copies of documents filed in the Superior Courts and the NHSC,

showing that each of the presently unexhausted claims, including

the federal nature of those claims, has been raised and exhausted

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4If 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 Carey’s

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

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in those Courts. Carey should also provide this Court with

complete copies of any orders or opinions issued by the State

courts relative to these matters that have not previously been

submitted to this Court.

5. Should Carey fail to amend his complaint to demonstrate

that he has exhausted his State court remedies for each of the

grounds presented, or otherwise fails to comply with this Order,

the petition may be dismissed for failure to demonstrate

exhaustion.4 See 28 U.S.C. § 2254(b).

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: March 13, 2008

cc: William J. Carey, pro se

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