UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Jammadriteal Dunn

v. Civil No. 08-cv-178-PB

Warden, Northern New Hampshire

Correctional Facility

REPORT AND RECOMMENDATION

Before the Court is Jammadriteal Dunn’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

magistrate judge is directed to conduct a preliminary review. LR

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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

Jammadriteal Dunn was convicted, after a jury trial, of one

count of Attempted Theft by Unauthorized Taking and one count of

Theft by Deception. Dunn was sentenced to serve 4-10 years in

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the New Hampshire State Prison. At his sentencing hearing, Dunn

filed a motion to set aside the verdict on the grounds that his

convictions violated his right not to be subjected to double

jeopardy. The motion was denied on August 8, 2006.

After he was convicted, Dunn appealed his conviction to the

New Hampshire Supreme Court (“NHSC”), on the grounds that: (1)

his conviction violated his right not to be subjected to double

jeopardy; (2) the evidence at trial was insufficient to convict

him; and (3) the indictments were duplicative. The NHSC affirmed

Dunn’s conviction in July of 2007. 

Dunn also filed a petition for a writ of habeas corpus in

the Coos County Superior Court claiming that: (1) The trial court

failed to properly instruct the jury regarding alternative

theories of prosecution; (2) his right not to be subjected to

double jeopardy was violated by his conviction on two charges for

a single offense; and (3) the trial court, in its instructions to

the jury, impermissibly amended the indictments returned against

him by the grand jury. The Coos County Superior Court denied the

habeas petition on February 5, 2008. Dunn appealed that denial

to the NHSC. His appellate counsel refused to brief either of 

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1The claims, as described here, will be considered to be the

claims raised in Dunn’s petition for all purposes. If Dunn

disagrees with this identification of the claims, he must do so

by properly moving to amend his petition, or by objecting to this

Report and Recommendation.

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the issues raised, however, and so Dunn proceeded pro se in that

appeal. His appeal was denied.

Dunn now brings the following claims in his federal petition

for a writ of habeas corpus1:

1. The trial court violated his Fifth Amendment right not 

to be subjected to double jeopardy by failing to 

properly instruct the jury regarding alternative 

theories of prosecution, resulting in his conviction on

two alternative counts of attempted theft;

 2. The trial court’s instructions to the jury 

impermissibly amended the indictments returned by the 

grand jury by adding an element that was not charged by

the grand jury, to wit, that Dunn acted with a “purpose

to deprive another of property or to keep or use 

property in such a way that a substantial portion or 

economic value would be lost;”

3. Dunn was denied the effective assistance of appellate 

counsel when his appellate attorney refused to brief 

either issue presented to the NHSC after Dunn’s 

petition for habeas relief was denied in the Superior 

Court, forcing Dunn to file the brief pro se.

Discussion

I. Claim Alleging Ineffective Assistance of Post-Conviction 

Appellate Counsel

Dunn alleges that counsel in his post-conviction case

refused to brief issues on appeal. There is no constitutional

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right, however, to have an attorney in state post-conviction

proceedings. See Coleman v. Thompson, 501 U.S. 722, 752 (1991). 

Where there is no constitutional right to the effective

assistance of counsel, there is no constitutional violation for

the deprivation of the effective assistance of counsel. See id.

(citing Wainwright v. Torna, 455 U.S. 586, 587 (1982)). 

Therefore, even if Dunn’s assertion, that his attorney improperly

refused to brief his post-conviction appeal, is true, such a

claim is not cognizable in a federal habeas petition, as it is

not grounded on the deprivation of a right found in the federal

constitution or other federal law. See 28 U.S.C. § 2254(a);

Coleman, 501 U.S. at 752; Wainwright, 455 U.S. at 587; see also

Beauchamp v. Murphy, 52 F.3d 309, 1995 WL 221483, *2 n.1 (1st

Cir. 1995). Accordingly, I recommend that this claim be

dismissed from the habeas petition.

II. Claims Alleging Constitutional Violations at Trial

Dunn’s remaining two claims, alleging that he was

unconstitutionally subjected to double jeopardy, and that the

trial court’s instructions to the jury impermissibly amended the

grand jury’s indictments, both arise out of alleged errors at

trial. Dunn alleges that both of these issues have been

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litigated to some extent in the state courts, and he now asserts

them here, seeking federal habeas relief.

A. Custody and Exhaustion

To be eligible for habeas relief, Dunn 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). Dunn 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.

Connor, 404 U.S. 270, 275 (1971) (requiring petitioner to have

fairly presented the federal nature of his claims to the State

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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)). 

“[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). 

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

federal claims to the state courts, a petitioner must have

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

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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)

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).

Dunn states that he raised his double jeopardy claim in his

motion to set aside the verdict in the Rockingham County Superior

Court, in his direct appeal to the NHSC, and in his habeas

petition before the Coos County Superior Court, which was also

appealed to the NHSC. Similarly, Dunn asserts that his

indictment claim was raised in his Coos County Superior Court

habeas petition, which was appealed to the NHSC. However, Dunn

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has attached neither pleadings, notices of appeal, briefs, or

other documents filed in the state courts, nor any state court

order which demonstrates that the precise claims raised in this

petition, including the federal nature of those claims, have each

been presented to the NHSC. Accordingly, at this juncture, Dunn

has failed to allege sufficient facts to demonstrate exhaustion

of his claims. However, as Dunn’s petition indicates that the

claims may, in fact, have been exhausted, I will give Dunn the

opportunity to amend his petition to demonstrate exhaustion. In

an Order issued simultaneously with this Report and

Recommendation, I will direct Dunn to amend his petition to

demonstrate exhaustion of his double jeopardy and jury

instruction claims.

B. Stay

If Dunn has not yet exhausted his claims, including the

federal nature of those claims, in the state courts, I will allow

him the opportunity to return to the state courts to exhaust

those claims. In my Order issued simultaneously with this report

and recommendation, I will direct Dunn that, if he notifies this

Court that he intends to return to the state courts to exhaust

his federal claims, I will stay this action to allow him the

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opportunity to return to the state courts to complete exhaustion

of his claims.

Conclusion

For the foregoing reasons, I recommend dismissal of the

ineffective assistance of counsel claims. In a separate Order, I

will direct Dunn to amend his petition to demonstrate exhaustion

of his remaining claims.

 Any objections to this report and recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

Law Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992);

United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: June 24, 2008

cc: Jammadriteal Dunn, pro se

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