UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

David Jerome Clough, Jr.

v. Civil No. 08-cv-114-JL

Warden, New Hampshire State Prison

ORDER

Before the court is a request to lift the stay (doc. no. 18-

2) pending in this petition for writ of habeas corpus under 28

U.S.C. § 2254, and a motion for leave to file an amended § 2254

petition (doc. no. 18), filed by David Jerome Clough, Jr., naming

the New Hampshire State Prison (“NHSP”) Warden as the respondent. 

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 for the District of New Hampshire

Local Rule (“LR”) 4.3(d) (authorizing magistrate judge to conduct

preliminary review of pro se pleadings). As explained more fully

below, I grant the motion, order the stay lifted, and direct

service upon the respondent Warden, Richard M. Gerry. 

Standard of Review

Under LR 4.3(d)(2), when an incarcerated plaintiff or

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petitioner commences an action pro se, the magistrate judge

conducts a preliminary review. In a preliminary review, pro se

pleadings are construed liberally, however inartfully pleaded. 

See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)

(following Estelle v. Gamble, 429 U.S. 97, 106 (1976), 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.” Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st

Cir. 1997); see also Castro v. United States, 540 U.S. 375, 381

(2003) (courts may construe pro se pleadings to avoid

inappropriately stringent rules and unnecessary dismissals). 

This review ensures that pro se pleadings are given fair and

meaningful consideration.

To determine if a pleading filed pro se should be dismissed

for failing to state a claim on which relief could be granted,

the Court must consider whether the allegations, construed

liberally, Erickson, 551 U.S. at 94, “contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, ___ U.S. ___, ___,

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129 S. Ct. 1937, 1949 (2009) (citation omitted). “A claim has

facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. Inferences

reasonably drawn from the plaintiff’s factual allegations must be

accepted as true, but the Court is not bound to credit legal

conclusions, labels, or naked assertions, “devoid of ‘further

factual enhancement.’” Id. (citation omitted). Determining if

the pleadings state a viable claim is a “context-specific task

that requires the reviewing court to draw on its judicial

experience and common sense.” Id. at 1950 (citation omitted). 

Background

Convicted in 2006 of one count of aggravated felonious

sexual assault, Clough was sentenced to a term of imprisonment. 

He is currently incarcerated at the New Hampshire State Prison.

Clough filed a direct appeal of his conviction with the New

Hampshire Supreme Court (“NHSC”). The NHSC affirmed his

conviction. 

Thereafter, Clough filed a petition for writ of habeas

corpus under 28 U.S.C. § 2254 in this Court. Clough’s original

section 2254 petition (doc. no. 1) raised only one ground for

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1The identification of the claims set forth herein shall be

considered for all purposes to be the claims raised in the § 2254

petition. If Clough disagrees with this identification of the

claims, he must move for reconsideration of this aspect of the

Order or move to amend the petition. 

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federal habeas corpus relief: the trial court erred by denying

his motion for a thirty-day continuance so that he could retain

the services of an expert in the field of parental alienation

syndrome. Finding that the NHSC had not been alerted to the

federal nature of the claim, this Court stayed the petition on

August 18, 2008, pending Clough’s exhaustion of his state court

remedies. See Order (doc. no. 8). The Order staying the

petition directed Clough to notify this Court after the NHSC

issued a ruling on his claims. See id. Clough filed his motion

to amend his petition (doc. no. 18) in response to that Order. 

Clough has notified this Court that he has elected to forego

his claim for habeas corpus relief based on the trial court’s

failure to grant a 30-day continuance. See Ltr. to Clerk (doc.

no. 18-2). The amended petition, filed with Clough’s motion

(doc. no. 18), sets forth the following new claims for federal

habeas corpus relief1:

1. Defense counsel’s failing to provide Clough with a copy

of all discovery, so that he could better assist in his

defense, violated Clough’s Sixth Amendment right to the

effective assistance of counsel.

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2. Defense counsel’s mentioning in his opening statement

that he worked for the Office of the Public Defender

violated Clough’s Sixth Amendment right to the effective

assistance of counsel.

3. Defense counsel’s introduction of prejudicial evidence

of prior bad acts violated Clough’s Sixth Amendment right to

the effective assistance of counsel.

4. Defense counsel’s failure to investigate and produce

alibi witnesses violated Clough’s Sixth Amendment right to

the effective assistance of counsel.

5. The prosecutor engaged in misconduct in violation of

Clough’s right to due process and a fair trial under the

Fifth and Fourteenth Amendments by repeatedly using the term

“we” in his closing argument to vouch for witnesses by

asserting the power and prestige of his office. 

Discussion

To be eligible for habeas relief, Clough must show for each

claim: (1) that he is in custody; and (2) that he has either

exhausted all of his state court remedies or 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). Clough’s incarceration satisfies the custody requirement. 

Furthermore, the record before me indicates that Clough has

exhausted his state court remedies as to each claim asserted in

the amended petition. 

Conclusion

I hereby grant Clough’s motion for leave to file an amended

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§ 2254 petition (doc. no. 18). I order the stay entered on

August 18, 2008 (doc. no. 8) lifted. I direct that the amended

petition be served upon Richard M. Gerry, NHSP Warden. The

respondent shall file an answer, motion, or other response to the

allegations made therein. See § 2254 Rule 4 (requiring reviewing

judge to order response to petition). 

The Clerk’s office shall serve copies of this Order and the

amended habeas petition (doc. no. 18) upon the New Hampshire

Office of the Attorney General, as provided in the Agreement on

Acceptance of Service. Respondent shall file an answer, motion,

or other response 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 answer). 

Upon receipt of the response, the Court will determine

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

circumstances under which 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’

attorney(s). 

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SO ORDERED. 

_______________________________

James R. Muirhead

United States Magistrate Judge

Date: December 7, 2009

cc: David Jerome Clough, Jr., pro se

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