UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Roland Chretien

v. Civil No. 07-cv-044-JM

Bruce W. Cattell, Warden,

New Hampshire State Prison

O R D E R

Currently before me for preliminary review is Roland

Chretien’s petition for a writ of habeas corpus filed pursuant to

28 U.S.C. § 2254. See Rule 4 of the Rules Governing § 2254

Proceedings (requiring initial review to determine whether the

petition is facially valid and may be served). As explained

below, Chretien has not demonstrated that he has exhausted his

available and effective state remedies as required by statute. 

See 28 U.S.C. § 2254(b)(1) (providing that the writ “shall not be

granted” unless petitioner has exhausted all available or

effective state remedies). I therefore order that Chretien amend

his petition to demonstrate exhaustion consistent with this

Order. 

Case 1:07-cv-00044-SM Document 2 Filed 02/22/2007 Page 1 of 9

Chretien v. NH State Prison, Warden Doc. 2

Dockets.Justia.com
2

Background 

Roland Chretien, an inmate at the New Hampshire State

Prison, was convicted after a bench trial of sexual assault and

felonious sexual assault. On January 28, 2005, Chretien was

sentenced to serve six to twelve years in the New Hampshire State

Prison. After trial, Chretien filed a motion for a new trial

which was denied. Chretien sought appellate review and the New

Hampshire Supreme Court (“NHSC”) affirmed his conviction on

August 11, 2006. In its Order affirming the conviction, the NHSC

determined that a number of the claims raised on appeal had not

been properly preserved for appellate review, and were therefore

not considered. Chretien subsequently filed a second motion for

a new trial in the Superior court, which was denied. Chretien

filed a notice of appeal for the second motion for a new trial,

but the NHSC declined the appeal on January 17, 2007. 

Chretien now files the instant petition raising four grounds

for relief, all of which he claims implicate his Fourteenth

Amendment due process rights and his Sixth Amendment right of

confrontation:

1. The trial court erred in denying petitioner’s motion to

cross-examine the complainant concerning a false 

accusation of rape she made against a third party;

Case 1:07-cv-00044-SM Document 2 Filed 02/22/2007 Page 2 of 9
3

2. The trial court erred in denying petitioner’s motion to

cross-examine the complainant concerning an incident of

consensual sex between the complainant and a third 

party;

3. The trial court erred in denying petitioner’s motion to

introduce extrinsic evidence of a false accusation of 

rape made by the complainant against a third party;

4. The trial court erred in denying petitioner’s motion to

introduce extrinsic evidence of an incident of 

consensual sex between the complainant and a third 

party.

Chretien asserts that he is entitled to a writ of habeas corpus

because these constitutional violations have rendered his

conviction and sentence illegal. 

Discussion

1. Custody and Exhaustion

To be eligible for habeas relief, Chretien 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. 

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). Chretien satisfies the first requirement,

as he is currently incarcerated. However, the petition does not

demonstrate satisfaction of the exhaustion requirement.

Case 1:07-cv-00044-SM Document 2 Filed 02/22/2007 Page 3 of 9
4

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), 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).

Chretien has failed to present sufficient information or

documentation to this court to demonstrate that each of the

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

was presented to the state appellate court. See Smith v. Digmon,

434 U.S. 332, 333 (1978) (listing documents which would enable a

federal court to determine whether the grounds supporting the

habeas petition had been presented for review in the state

courts). Specifically, Chretien has not submitted the full

notices of appeal and attachments thereto, the appendices, or the

Case 1:07-cv-00044-SM Document 2 Filed 02/22/2007 Page 4 of 9
5

briefs filed in support of both of his attempts to obtain relief

from the NHSC. Those documents would demonstrate whether or not

the claims raised here, including the federal nature of the

claims, were specifically presented to the NHSC.

2. Mixed Petition

“[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 v. DiPaola, 131 F.3d 259, 261 (1st Cir.

1997) (emphasis added). If Chretien’s petition contains both

exhausted and unexhausted claims, and Chretien were to press his

petition without first exhausting all of 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)). If the petition contains both exhausted and

unexhausted claims, the proper course of action would be to stay

this petition pending the exhaustion of all of the claims and

compliance with this Order. See Rhines v. Weber, 544 U.S. 269,

278 (2005) (a district court should stay a mixed petition

Case 1:07-cv-00044-SM Document 2 Filed 02/22/2007 Page 5 of 9
6

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.”).

Chretien has attached to his federal petition a copy of the

New Hampshire Supreme Court’s order affirming his conviction.

That order makes clear that, of the four claims presented to this

Court for consideration, one of them, the claim challenging the

denial of extrinsic evidence of a false accusation of rape, has

been fully exhausted in the state courts. The order does not

contain enough information to allow me to determine whether the

three other claims raised here have been presented to the NHSC. 

Accordingly, Chretien must amend his petition to demonstrate

exhaustion of those claims if they have, in fact, been exhausted,

or must request a stay in order to return to the state courts to

complete exhaustion.

It should be noted that Chretien has the option of foregoing

his unexhausted claims, if any of his claims are in fact

unexhausted, and requesting that this Court proceed promptly with

consideration of only his exhausted claim or claims. Chretien

Case 1:07-cv-00044-SM Document 2 Filed 02/22/2007 Page 6 of 9
7

should be advised 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), cert. denied, 523

U.S. 1123 (1998).

Conclusion

Chretien is ordered to amend his petition within thirty days

of the date of this Order to demonstrate exhaustion. Chretien is

instructed to establish that he has exhausted his state remedies

with respect to each of the claims presented in his petition or

that he is excused from the exhaustion requirement. To make this

showing, Chretien is instructed to provide this court with copies

of documents filed in the Superior Court and the New Hampshire

Supreme Court showing that each of the claims, including the

federal nature of each claim, has been raised and exhausted

below. Chretien should also provide this Court with copies of

any orders or opinions issued by the state courts relative to

these matters that have not previously been submitted to this

Court.

Case 1:07-cv-00044-SM Document 2 Filed 02/22/2007 Page 7 of 9
8

If the claims in question are not exhausted, Chretien must

notify the Court within thirty days of the date of this Order as

to how he intends to proceed in this matter. Chretien must

either request a stay so that he may return to the state courts

to complete exhaustion, or affirmatively forego his unexhausted

claims. If Chretien chooses to take further action in the state

courts, once this case is stayed, Chretien must commence his

state court action within thirty days of the date of this Order.

Chretien is directd to notify this Court of the status of

the state court proceedings every ninety days. When the claims

are fully exhausted in the state courts, Chretien must, within

thirty days of receiving the final state court decision, notify

this Court that the state court litigation is concluded and

provide this Court with the documentation of exhaustion at that

time.

Should Chretien fail to make a showing 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 

Case 1:07-cv-00044-SM Document 2 Filed 02/22/2007 Page 8 of 9
1If 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 Graham’s

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

9

dismissed for failure to demonstrate exhaustion.1 See 28 U.S.C.

§ 2254(b).

SO ORDERED.

________________________________

James R. Muirhead

United States Magistrate Judge

Date: February 22, 2007

cc: Thomas L. Gleason, Esq.

Stephen Fuller, Esq.

John Vinson, Esq.

Case 1:07-cv-00044-SM Document 2 Filed 02/22/2007 Page 9 of 9