UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Jose A. Sanchez

v. Civil No. 07-cv-198-SM

Larry Blaisdell, Warden,

Northern New Hampshire

Correctional Facility

O R D E R

Before the Court is Jose Sanchez’s petition for a writ of

habeas corpus, filed pursuant to 28 U.S.C. § 2254. The matter is

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

Governing § 2254 proceedings (“§ 2254 Rule”) (requiring initial

review to determine whether the petition is facially valid). As

discussed herein, I find that the petition is facially valid and

I order that it be answered by respondent. 

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. 

See United States District Court for the District of New

Hampshire Local Rule 4.3(d)(2). In conducting the preliminary

review, the Court construes pro se pleadings liberally, however

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1For some reason, Sanchez’s narrative sets the plea and the

events preceding the plea in 1998 and 1999. The court documents

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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 an 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

On January 11, 2006, Jose Sanchez entered a guilty plea in

the New Hampshire Superior Court to selling more than five ounces

of cocaine while having a prior conviction for violating the

Massachusetts controlled substances act.1 Prior to his plea,

Case 1:07-cv-00198-JL Document 5 Filed 10/09/07 Page 2 of 7
submitted with his petition, however, indicate that the plea

actually occurred in 2006. I will consider the court documents

as presenting the correct dates in this matter for purposes of

preliminary review.

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neither he nor his attorney entered into any agreed upon

disposition or sentence with the prosecution. Sanchez claims

that he was induced to enter this plea by his attorney, who told

him that he had no defense at trial, and that he could receive a

maximum sentence of life for the offense, a result that was more

likely to occur after a trial than after a guilty plea. At the

plea and sentencing hearing, the judge sentenced Sanchez to

fifteen to thirty years in the New Hampshire State Prison. 

Sanchez’s attorney took no direct appeal of the sentence to the

New Hampshire Supreme Court.

Sanchez filed a petition for a writ of habeas corpus in the

Coos County Superior Court, making several constitutional

challenges to his conviction and sentence. His petition was

dismissed on April 7, 2007. On May 2, 2007, Sanchez filed a

timely notice of appeal in the New Hampshire Supreme Court, which

was declined on June 7, 2007. Sanchez now brings the instant

petition, raising the following claims, each of which was

presented to the New Hampshire Supreme Court in the May 2, 2007

notice of appeal:

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1. Petitioner was denied his Sixth Amendment right to the 

effective assistance of counsel when his attorney 

failed to investigate the criminal matter and a 

possible entrapment defense;

2. Petitioner was denied his Sixth Amendment right to the 

effective assistance of counsel when his attorney 

failed to confer with petitioner, or receive approval 

from petitioner, when he had the criminal matter 

removed from the trial docket and scheduled for a 

guilty plea;

3. Petitioner was denied his Sixth Amendment right to the 

effective assistance of counsel when his attorney 

failed to object to the sentence imposed by the 

Superior Court, or appeal that sentence;

4. Petitioner was denied his Sixth Amendment right to the 

effective assistance of counsel when his attorney 

failed to advise petitioner that he would receive an 

enhancement for a prior conviction, when petitioner 

believes that he had no prior conviction that would 

enhance his sentence;

5. Petitioner was denied his Sixth Amendment right to a 

jury trial prior to receiving a severe prison sentence;

6. Petitioner was denied his Fourteenth Amendment right to

due process when his case was taken off of the trial 

docket and scheduled for a guilty plea before 

petitioner had been fully apprised of his rights and 

the ramifications of waiving his trial rights.

Discussion

To be eligible for habeas relief, Sanchez 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 processes. 

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See 28 U.S.C. § 2254(a) & (b); see also Adelson v. DiPaolo, 131

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

exhaustion principle). A petitioner’s remedies in New Hampshire

are exhausted when the petitioner’s federal claims have been

presented to the State’s highest court “fairly and recognizably,”

so that the State courts have an opportunity to rule on the

claims. Clements v. Maloney, No. 05-2411, 2007 WL 1241253, at *3

(1st Cir. Apr. 30, 2007); see Lanigan v. 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[s] 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). 

As to the first requirement, petitioner is in custody, as he

is serving a State prison sentence pursuant to the conviction in

question in this case. Regarding the second requirement, Sanchez

has submitted, with his petition, the notice of appeal he filed

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in the New Hampshire Supreme Court, appealing the dismissal of

his habeas petition in the State Superior Court. My review of

these documents indicates that Sanchez presented each of the

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

to the New Hampshire Supreme Court for review. I find,

therefore, that the claims presented here have been properly

exhausted in the State courts, and that the petitioner’s federal

habeas action may therefore proceed.

Conclusion

I direct that Sanchez’s petition be served on the

Respondent. See § 2254 Rule 4. The Respondent shall file an

answer or other pleading in response to the allegations made

therein. See id. (requiring reviewing judge to order a response

to the petition). The Clerk’s office is directed to serve the

New Hampshire Office of the Attorney General, as provided in the

Agreement On Acceptance Of Service, copies of this Order and the

habeas petition (document no. 1). Respondent shall answer or

otherwise plead within thirty (30) days of the date of this

Order. The answer shall comply with the requirements of § 2254

Rule 5 (setting forth contents of the answer). 

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Upon receipt of the response, the Court will determine

whether a hearing is warranted. See § 2254 Rule 8 (providing

circumstances under which a hearing is appropriate). 

Petitioner is referred to Fed. R. Civ. P. 5, which requires

that every pleading, written motion, notice, and similar paper,

after the petition, shall be served on all parties. Such service

is to be made by mailing the material to the parties’ attorneys. 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: October 9, 2007

cc: Jose A. Sanchez, pro se

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