UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Daniel E. Ayer, Sr.

 v. Civil No. 07-cv-304-SM 

Richard Gerry, Warden,

New Hampshire State Prison

REPORT AND RECOMMENDATION

Before the court is Daniel Ayer’s motion (doc. no. 56) to 

withdraw and forego the unexhausted claims asserted in this 

habeas action, filed in response to the court’s April 25, 2014, 

order (doc. no. 53). Respondent has not filed any objection to 

that motion. 

If the district judge grants Ayer’s motion (doc. no. 56),

Ayer’s amended petition, comprised of the factual allegations 

contained in the pleadings docketed in this case as Docket Nos. 

1, 50, 52, and 56, will include only the following claims:

1. Ayer was denied his Fifth, Sixth, and Fourteenth 

Amendment rights to represent himself at trial when 

the trial court “forced” him to have court-appointed 

counsel; 

2. Ayer’s Sixth and Fourteenth Amendment right to confront 

the witnesses and evidence against him was violated when 

the trial court admitted testimony of a witness who had 

died between Ayer’s first and second trials, and whose 

testimony was recorded at the first trial; 

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3. Ayer’s Fifth, Sixth, and Fourteenth Amendment rights 

to Due Process and a fair trial were violated when the 

trial court denied Ayer the ability to present certain 

defenses to the jury for consideration; 

4. Ayer’s Fifth, Sixth, and Fourteenth Amendment 

rights to due process and a fair trial were violated 

when the trial court refused to instruct the jury 

regarding the lesser offense of provocation 

manslaughter; 

5. Ayer’s Fifth and Fourteenth Amendment rights to 

due process and not to incriminate himself were 

violated when his statements were admitted at trial 

even though he had not voluntarily waived the rights 

afforded to him by Miranda v. Arizona, 396 U.S. 868 

(1969); 

6. Ayer’s Fifth and Fourteenth Amendment rights to 

due process and not to incriminate himself were 

violated when his statements were admitted at trial 

even though he had invoked his right to counsel prior 

to questioning, but was not afforded counsel at that 

time; 

7. Ayer’s Fifth and Fourteenth Amendment due process 

rights were violated when the trial court admitted in 

evidence firearms, weapons, and ammunition found in 

Ayer’s truck even though the items were not used in 

the commission of the crime, were highly prejudicial, 

and were not introduced for a legitimate purpose;

8. Ayer’s Sixth and Fourteenth Amendment right to 

confront the witnesses against him was violated when 

the trial court erroneously admitted certain 

statements made by Ayer’s wife through another 

witness, as excited utterances, where Ayer’s wife 

did not testify; and

9. Ayer was denied his Sixth and Fourteenth Amendment right 

to the effective assistance of counsel when his appointed 

trial counsel suggested Ayer’s guilt to the jury by 

focusing on a mental state defense rather than a defense 

asserting that Ayer did not engage in the conduct alleged 

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to be criminal.

The motion to withdraw and forego the unexhausted claims, 

numbered 2(a) – 2(h) in the April 25, 2014 Order, should be 

granted, and the district judge should issue the order set forth 

in the conclusion of this Report and Recommendation. 

Conclusion

For the foregoing reasons, the court recommends that the 

district judge issue the following three-part order:

1. The motion to withdraw and forego (doc. no. 56)

certain claims is GRANTED, rendering the petition, as 

amended, inclusive of only Claims 1-9, as identified in the 

magistrate judge’s July 2014 report and recommendation.

2. The respondent is directed to file an answer or 

other response to the amended petition, as to Claims 1-9, 

within thirty days of the date of the order approving the 

magistrate judge’s July 2014 report and recommendation.

3. Within sixty days of serving its answer to the 

amended petition, the respondent shall file either: (a) a 

summary judgment motion, in accordance with LR 7.4, or (b) 

a statement representing that an evidentiary hearing is 

necessary to resolve disputed issues of material fact.

Any objections to this Report and Recommendation must be 

filed within fourteen days of receipt of this notice. See Fed. 

R. Civ. P. 72(b)(2). Failure to file objections within the 

specified time waives the right to appeal the district court’s 

order. See United States v. De Jesús-Viera, 655 F.3d 52, 57 

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(1st Cir. 2011); Sch. Union No. 37 v. United Nat’l Ins. Co., 617 

F.3d 554, 564 (1st Cir. 2010) (only issues fairly raised by 

objections to magistrate judge’s report are subject to review by 

district court; issues not preserved by such objection are 

precluded on appeal).

______________________________

Andrea K. Johnstone

United States Magistrate Judge

July 7, 2014

cc: Daniel E. Ayer, Sr., pro se

Susan P. McGinnis, Esq.

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