UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Shawn Kierstead

v. Civil No. 05-cv-432-JD

Warden, Northern New Hampshire

Correctional Facility

O R D E R

Pro se petitioner Shawn Kierstead has filed a petition for a

writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging

the constitutionality of his state court conviction and

confinement (document no. 1). The petition is before me for

preliminary review. See Rule 4 of the Rules Governing Section

2254 Proceedings (“Habeas Rules”) (requiring initial review to

determine whether the petition is facially valid and may be

served); United States District Court for the District of New

Hampshire Local Rules 4.3(d)(authorizing the magistrate judge to

preliminarily review pro se pleadings). 

For the reasons stated below, I order Kierstead to amend his

petition.

Standard of Review

In reviewing a pro se petition, this court must construe the

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pleadings liberally, see Ayala Serrano v. Gonzalez, 909 F.2d 8,

15 (1st Cir. 1990)(following Estelle v. Gamble, 429 U.S. 97, 106

(1976)), treating all well-pleaded factual allegations as true

and drawing all reasonable inferences in the litigant’s favor,

see Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996)(explaining

that all “well-pleaded factual averments,” not bald assertions,

must be accepted as true). This review ensures that pro se

pleadings are given fair and meaningful consideration. See

Eveland v. Director of CIA, 843 F.2d 46, 49 (1st Cir. 1988).

Background

Having pled guilty on December 20, 1994 to two counts of

aggravated felonious sexual assault and one count of burglary,

Kierstead is currently incarcerated at the Northern New Hampshire

Correctional Facility (“NCF”). On the sexual assault charges,

the New Hampshire Superior Court (Hillsborough County) sentenced

him to concurrent three to six year terms. See State v.

Kierstead, 141 N.H. 803, 693 A.2d 410 (1997). On the burglary

charge, the court suspended the consecutive three and one half to

seven year sentence, which was conditioned upon Kierstead’s good

behavior and compliance with the terms of the sentence. Id. The

court further stated that the suspended sentence may be imposed

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after a hearing brought by the State within seven years of

Kierstead’s release from incarceration on the sexual assault

charges. All three sentences prohibited him from contacting the

victim. 

Imposition of Six Month Suspended Sentence

On December 7, 1995, Kierstead violated the terms of the

suspended sentence by repeatedly telephoning the victim. Id. On

May 15, 1996, the superior court imposed six months of the

suspended burglary sentence, thereby increasing his maximum

release date from October 18, 2000 to April 18, 2001. Kierstead

filed an appeal in May 1996 and, while he has not provided this

court with a copy of the appeal, the New Hampshire Supreme Court

decision reveals that he raised the following claim: whether the

sentencing court erred when it imposed a portion of his suspended

sentence despite the fact that the suspended sentence by its

terms had not yet begun to run. The New Hampshire Supreme Court

affirmed his sentence on April 29, 1997, holding that a suspended

sentence may be imposed or probation revoked for acts committed

by the defendant after imposition of the sentence but before

commencement of the suspended sentence or probationary term. Id. 

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1Contrary to Kierstead’s assertions, the State has argued

that he was convicted on two counts of assault and battery. 

(State’s Obj. to Def.’s Pet. for a Writ of Habeas Corpus at ¶ 9.)

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Imposition of Three to Six Year Suspended Sentence

Kierstead was released from incarceration on April 18, 2001

and moved to Tyngsborough, Massachusetts. On July 5, 2003, he

was charged by the Tyngsborough Police Department with mayhem,

assault and battery, all of which charges he claims were

dismisssd.1 On September 15, 2003, the superior court imposed

three to six years of the suspended burglary sentence on

Kierstead for again violating the terms of his suspended

sentence. See State of New Hampshire v. Kierstead, No. 94-S-0533

(N.H. Super. Ct. Hillsborough Cty., So. Dist., April 30, 2004). 

Notice of Amended Sentence

On October 9, 2003, the State filed a Motion to Clarify

Sentence, requesting the court to impose the balance of

Kierstead’s suspended sentence, the remainder of which was not

more than seven years nor less than three years. The State added

that the NHDOC incorrectly credited Kierstead 182 days for time

served from October 18, 2000 to April 18, 2001. On December 12,

2003, the superior court issued a notice of amended sentence

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which imposed the balance of Kierstead’s original remaining

suspended sentence of three and one half to seven years, after

having deducted the six month previously imposed suspended

sentence. The court further stated that the 182 days served by

Kierstead on the six month sentence could not be credited as time

served on the three to six year sentence imposed on September 15,

2003.

On January 31, 2004, Kierstead filed a Motion to Vacate

Sentence, alleging that the superior court imposed a sentence

upon him in excess of its powers and in violation of the Double

Jeopardy Clause of the Fifth Amendment and the Due Process Clause

of the Fourteenth Amendment. Specifically, he alleged that the

sentenced imposed on September 15, 2003 was illegal because the

seven year suspension period began running when the first six

months of the suspended sentence was imposed in 1996. He claimed

therefore that no part of the suspended sentence could be imposed

after May 15, 2003. He further alleged that the sentencing court

violated his Fifth and Fourteenth Amendment rights to due process

and to be free from double jeopardy by failing to make clear at

the time of sentencing the exact punishment, the extent to which

the court retained discretion to impose punishment at a later

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2Although he finished serving his sentence on October 18,

2000, he remained incarcerated until April 18, 2001 to serve the

six months suspended sentence imposed on May 15, 1996.

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date and the conditions under which the sentence may be modified. 

The superior court denied his motion on April 30, 2004. The

court reasoned that Kierstead’s sentence was explicitly subject

to imposition from the date it was imposed on December 20, 1994

until seven years after he was released from incarceration on the

stand committed sentence. Kierstead served the maximum sentence

under the sexual assault charges and was given a release date of

October 18, 2000.2 The court further reasoned that the suspended

sentence was explicitly subject to imposition until October 18,

2007, and the fact that any part of the suspended sentence was

imposed at an earlier date did not in any way modify the clear

terms of the sentence. Kierstead’s subsequent appeal to the New

Hampshire Supreme Court was denied without opinion on July 16,

2004. He has not provided this court with a copy of the appeal.

Kierstead filed a petition for a writ of habeas corpus with

the New Hampshire Superior Court (Merrimack County). He filed an

amended petition for a writ of habeas corpus with the New

Hampshire Superior Court (Coos County) on March 22, 2005 and

raised the following claims: (1) imposition of the six month

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suspended sentence violated the provisions of his negotiated plea

agreement with the State and the holding under Santobello v. New

York, 404 U.S. 257 (1971); and (2) by imposing the six month

suspended sentence, the superior court in essence participated in

the plea discussions in violation of United States v. Ebel, 299

F.3d 187, 190 (3d Cir. 2002). The superior court allegedly

denied the petition, however, this court has not been provided a

copy of that order. 

Kierstead subsequently moved for reconsideration and raised

the following claims: (1) the State failed to honor its plea

agreement when it brought forward six months of his suspended

sentence during his incarceration in violation of Santobello,

404 U.S. 257; (2) trial counsel failed to object to the

imposition of the suspended sentence, thereby denying Kierstead

effective assistance of counsel; and (3) Kierstead and the State

failed to reach an enforceable plea agreement because he was

never advised that his suspended sentence could be imposed during

his incarceration. The superior court denied his motion for

reconsideration on May 31, 2005.

On June 9, 2005, Kierstead filed a notice of appeal with the

New Hampshire Supreme Court in which he alleged that the

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prosecution breached the plea agreement entered into between him

and the State. While the appendix to the appeal included a copy

of the Motion for Reconsideration filed with the New Hampshire

Superior Court, it did not include a copy of the original or

amended habeas petition. The New Hampshire Supreme Court

declined the appeal on October 18, 2005.

Kierstead now brings the instant petition for habeas corpus

relief, alleging five grounds for habeas corpus relief, as

discussed below.

Discussion

I. Custody and Exhaustion

To be eligible for habeas relief, a petitioner must show

that he is in custody and has exhausted all state court remedies

(or that he falls within a narrow category of cases in which

exhaustion is not required, such as the absence of an available

or effective state corrective process). See 28 U.S.C. § 2254 (a)

& (b). Kierstead satisfies the custody requirement as he is

currently incarcerated at the NCF. He also satisfies the

exhaustion requirement but only as to Ground One of the petition.

“Barring certain exceptional circumstances not present here,

a habeas petitioner in state custody may not advance his or her

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constitutional claims in a federal forum unless and until the

substance of those claims has been fairly presented to the

state’s highest court.” Barresi v. Maloney, 296 F.3d 48, 51 (1st

Cir. 2002). The exhaustion requirement, codified at 28 U.S.C. §§

2254 (b) & (c), embodies principles of federal-state comity and

is designed to provide state courts with an initial opportunity

to pass upon and correct alleged violations of a prisoner’s

federal rights. See O’Sullivan v. Boerckel, 526 U.S. 838, 845

(1999) (“Because the exhaustion doctrine is designed to give the 

state courts a full and fair opportunity to resolve federal

constitutional claims before those claims are presented to the

federal courts, we conclude that state prisoners must . . .

[invoke] one complete round of the State’s established appellate

review process.”); accord Duncan v. Henry, 513 U.S. 364, 365-66

(1995); Picard v. Connor, 404 U.S. 270, 275-76 (1971). 

“To provide the State with the necessary ‘opportunity,’ the

prisoner must ‘fairly present’ his claim in each appropriate

state court (including a state supreme court with powers of

discretionary review), thereby alerting that court to the federal

nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004)

(holding that a state prisoner does not “fairly present” a

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federal claim to a state court if that court must read beyond a

petition, brief or similar document that does not alert it to the

presence of a federal claim). Thus, if Kierstead has failed to

adequately present his federal constitutional claims to the New

Hampshire Supreme Court, he is precluded from seeking relief in

federal court.

II. Habeas Corpus Claims

Kierstead raises five grounds for federal habeas corpus

relief. Ground One is similar to the claim raised on appeal to

the New Hampshire Supreme Court and therefore appears to be

exhausted. The remaining three grounds are either unexhausted

and/or noncognizable for purposes of federal habeas review. 

A. Cognizable Claim

1. Breach of Plea Agreement

In Ground One of the petition, Kierstead alleges that by

imposing six months of the suspended sentence while he was

incarcerated, the State violated the provisions of the plea

agreement and his right to due process under the Fourteenth

Amendment. In support of his claim, he relies upon Santobello,

404 U.S. 257, holding that “when a plea rests in any significant

degree on a promise or agreement of the prosecutor, so that it

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can be said to be part of the inducement or consideration, such

promise must be fulfilled.” A claim that the prosecution

breached the plea agreement generally is cognizable under federal

habeas review. See Dixon v. Alexander, 741 F.2d 121, 123 (6th

Cir. 1984). The First Circuit has held that “habeas corpus

provides an appropriate procedural vehicle for advancing a

Santobello claim. As evidenced by the notice of appeal and

appendix thereto, Kierstead has presented the substance of his

federal claim to the New Hampshire Supreme Court for review and

has cited to supporting federal precedent, including Santobello. 

Without commenting on the merits of the claim, I conclude that he

has alleged a cognizable claim for purposes of surviving

preliminary habeas review.

B. Noncognizable Claims

1. Lack of Trial Court Jurisdiction

Ground Two alleges that the New Hampshire Superior Court

lacked jurisdiction to impose a sentence on Kierstead for acts

that occurred outside its jurisdictional borders and where the

acts had no effect in New Hampshire, thereby violating his

Fourteenth Amendment right to due process. In support of his

claim, Kierstead relies upon Strassheim v. Daily, 221 U.S. 280,

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285 (1911), in which a defendant was punished for his

extraterritorial acts based on the court’s holding that

prohibited conduct occurring in one state could be punished in

another state.

To the extent Kierstead challenges the jurisdiction of the

trial court, his claim is not cognizable under federal habeas

review. See United States ex rel. Holliday v. Sheriff of DuPage

Cty., 152 F. Supp. 2d 1004, 1013 (N.D. Ill. 2001) (claim that

trial court lacked subject matter jurisdiction to try, convict or

sentence petitioner not cognizable under federal habeas review).

See also Wilson v. Straub, 185 F. Supp. 2d 766, 771 (E.D. Mich.

2002)(petitioner’s claim that trial court lacked jurisdiction to

try him not cognizable on federal habeas review). “On collateral

review, federal courts cannot review claims that the state court

has disposed of on state law grounds.” Holliday, 152 F. Supp. 2d

at 1004. Like the petitioner in Holliday, Kierstead’s assertion

that the trial court lacked jurisdiction raises an issue of state

law because it questions the interpretation of state statutes

and, therefore, is not cognizable in a federal habeas corpus

petition. See also Estelle v. McGuire, 502 U.S. 62, 67 (1991)

(quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“federal

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habeas corpus relief does not lie for errors of state law”). 

2. Double Jeopardy

Ground Three alleges that by imposing Kierstead’s suspended

sentence for acts occurring in Massachusetts, the New Hampshire

Superior Court violated his Fifth Amendment right to be free from

double jeopardy. I construe his reference to the Fourteenth

Amendment to allege that the protections under the Fifth

Amendment Double Jeopardy Clause are made applicable to the

states through the Fourteenth Amendment. See Price v. Vincent,

538 U.S. 634, 636 (2003).

The record reveals that on September 15, 2003, the superior

court imposed three to six years of the suspended burglary

sentence on Kierstead for again violating the terms of his

suspended sentence. See State of New Hampshire v. Kierstead, No.

94-S-0533 (N.H. Super. Ct. Hillsborough Cty., So. Dist., April

30, 2004). Revocation of a suspended sentence and imposition of

a sentence that originally might have been imposed does not

constitute double jeopardy. See Lynch v. O’Dell, 2006 WL 122475,

No. 05-6229, slip op. at *2 (10th Cir. Jan. 18, 2006); accord

Stoltz v. Sanders, 242 F.3d 390, (10th Cir. 2000) (unpublished)

(citing Gillespie v. Hunter, 159 F.2d 410, 412 (10th Cir. 1947)).

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“The Double Jeopardy Clause protects against subsequent criminal

prosecution for the same offense after an acquittal has been

obtained - the revocation proceeding [of a suspended sentence] .

. . simply is not criminal prosecution to which Double Jeopardy

protections apply.” Lynch, 2006 WL 122475, No. 05-6229, slip op.

at *2 (10th Cir. Jan. 18, 2006). Because Kierstead challenges

the revocation of his suspended sentence and the imposition of a

sentence that originally could have been imposed, I conclude that

he has failed to allege a cognizable double jeopardy claim for

purposes of federal habeas review.

3. Violation under Fed. R. Civ. P. 11

Ground Five of the petition alleges that by imposing the six

month suspended sentence, the sentencing court in essence

participated in plea discussions in violation of Ebel, 299 F.3d

at 191 (holding that judge’s assurance that he would sentence

defendant to the low end of a sentencing range if he pled guilty

did not violate Rule 11 and was harmless error). See also Fed.

R. Civ. P. Rule 11(e) (prohibiting participation of federal

judges in plea discussions). 

Although Rule 11 prohibits federal judges from participating

in plea bargaining, “this blanket prohibition does not apply to

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state judges.” McMahon v. Hodges, 382 F.3d 284, 298 n.5 (2d Cir.

2004) (citing Miles v. Dorsey, 61 F.3d 1459, 1467 (10th Cir.

1995) (stating that Rule 11 does not apply to state courts and

“does not necessarily establish a constitutional prohibition”

applicable in state courts (quoting Frank v. Blackburn, 646 F.2d

873, 882 (5th Cir. 1980)). Because Rule 11 is not binding on the

states, a federal court reviewing a state court plea bargain may

only set aside a plea agreement that is violative of due process. 

See Cunningham v. Diesslin, 92 F.3d 1054, 1060 (10th Cir. 1996).

To the extent Kierstead alleges a Rule 11 violation arising from

his state court criminal proceedings, therefore, his claim is not

cognizable under federal habeas review.

 C. Unexhausted Claims

1. Trial Court Participation

 in Plea Discussions

Construed liberally, Ground Five of the petition further

alleges that Kierstead was denied the Fourteenth Amendment right

to due process when, by imposing a six month suspended sentence,

the trial court essentially participated in plea discussions.

As stated above, a federal court reviewing a state court

plea bargain may only set aside a plea agreement that is

violative of due process. See Cunningham, 92 F.3d 1054, 1060

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(10th Cir. 1994). In order to comport with due process

guarantees, a defendant must voluntarily and intelligently

entered a guilty plea. Id. (citing Boykin v. Alabama, 395 U.S.

238, 242 (1969). A federal court may “set aside a state court

plea bargain if persuaded that the trial judge’s participation

denied the defendant due process of law by causing him not to

understand the nature of the charges against him or the

consequences of a guilty plea, or if the judge’s participation

coerced the defendant to enter into a plea bargain

involuntarily.” Damiano v. Gaughan, 592 F. Supp. 1222, 1225 (D.

Mass. 1984), aff’d 770 F.2d 1 (1st Cir. 1985).

To the extent Kierstead alleges that the trial court’s

participation in plea discussions caused him not to understand

the consequences of the guilty plea or coerced him to enter into

the plea, he has not demonstrated exhaustion. He has failed to

provide this court with a copy of a notice of appeal or any

related supporting documentation, demonstrating that the claim

and federal nature of the claim were actually presented to the

New Hampshire Supreme Court. Accordingly, I conclude that the

above claim is unexhausted for purposes of federal habeas review.

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 2. Ineffective Assistance of Counsel

Ground Four alleges that Kierstead was denied the Sixth

Amendment right to effective assistance of counsel when his trial

counsel failed to object on jurisdictional grounds to the

imposition of his suspended sentence. I construe his reference

to the Fourteenth Amendment to allege that the guarantee of the

Sixth Amendment right to effective assistance of counsel applies

to the states as a component of due process under the Fourteenth

Amendment. See Greiner v. Wells, 417 F.3d 305, 318 (2d Cir.

2005) (citing Evitts v. Lucey, 469 U.S. 387, 394 (1985)). 

Ineffective assistance of counsel, as guaranteed by the Sixth

Amendment, clearly is a constitutional ground for habeas relief. 

See Strickland v. Washington, 466 U.S. 668, 687-88 (1984)(holding

that the Sixth Amendment guarantees criminal defendants the right

to effective assistance of counsel at trial). As evidenced by

the notice of appeal and appendix thereto, Kierstead has not

presented the federal nature of his claim to the New Hampshire

Supreme Court for review. In his state court pleadings he has

not cited to the Sixth Amendment or federal precedent in support

of his claim. I conclude therefore that he has failed to

demonstrate exhaustion of his federal ineffective assistance of

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counsel claim. 

To demonstrate exhaustion of the above claims, Kierstead

must provide the court with copies of any additional motions,

petitions, notices of appeal, briefs and orders and/or final

judgments issued by the state courts, addressing the above

claims. See Smith v. Digmon, 434 U.S. 332, 333 (1978)

(discussing 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). He may need to

return to the state courts to fully present the unexhausted

claims and the federal nature of each claim before he can make

the required amendment to his federal petition.

III. Stay

The Supreme Court has recently decided that a district court

should stay a mixed petition containing both exhausted and

unexhausted claims if the petitioner “has good cause for his

failure to exhaust, his unexhausted claims are potentially

meritorious, and there is no indication that [he] engaged in

intentionally dilatory litigation tactics. Rhines v. Weber, 125

S. Ct. 1528, 1535 (2005) (permitting a federal district court to

stay a federal habeas action and hold the petition in abeyance

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while the petitioner exhausts claims in state court); see also

Duncan, 533 U.S. at 182-83 (district court may retain

jurisdiction over a meritorious claim and stay further

proceedings pending the complete exhaustion of state remedies). 

Staying unexhausted claims is “the preferable course in many

cases involving ‘mixed’ petitions - and it may be the only

appropriate course in cases in which an outright dismissal

threatens to imperil the timeliness of a collateral attack.” 

Neverson v. Bissonnette, 261 F.3d 120, 126 n.3 (1st Cir. 2001);

see also Delaney v. Matesanz, 264 F.3d 7, 15 n.5 (1st Cir. 2001)

(recommending staying exhausted claims where “there is a

realistic danger that a second petition, filed after exhaustion

has occurred, will be untimely”). 

If Kierstead has not engaged in any state court litigation

challenging his incarceration since the New Hampshire Supreme

Court denied his appeal on October 18, 2005, the dismissal of

this petition may well imperil the timeliness of Ground One,

which appears to be exhausted. Liberally construing the

petition, I find that while Kierstead has not at this time made a

specific showing of good cause for his failure to exhaust each

claim, he has demonstrated a substantial effort to exhaust Ground

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One in state court and, as a pro se litigant, may not have

realized the necessity of raising each ground presented here in

the state courts within the limitations period. See Rhines, 125

S. Ct. at 1536 (Stevens, J., concurring) (the “good cause”

requirement should not be read “to impose the sort of strict and

inflexible requirement that would trap the unwary pro se

prisoner.” (internal citation omitted)); see also id. (Souter,

J., concurring) (pro se habeas petitioners do not come well

trained to address tricky exhaustion determinations). It may

also be the case that he has raised some or all of his claims in

state court pleadings that have not yet been brought to the

attention of this court.

Further, I cannot conclude at this stage of the proceedings

that Grounds Four and Five, if true, could not present

meritorious challenges to Kierstead’s incarceration. I further

find that there is nothing before this court to indicate that he

“engaged in intentionally dilatory litigation tactics” either in

pursuing his claims in the state courts or in this court. 

Rhines, 125 S. Ct. at 1535. Under these circumstances, the

proper course of action is to stay this petition pending the

exhaustion of Grounds Four and Five and compliance with this

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order.

Conclusion

For reasons stated above, I will allow Kierstead an

opportunity to amend his petition to demonstrate exhaustion of

Grounds Four and Five and the federal nature of the claims. To

make this showing, he is instructed to provide the court with a

copy of his notice(s) of appeal to the New Hampshire Supreme

Court and any other relevant state court pleadings, orders or

decisions within thirty (30) days. If Grounds Four and Five have

not been exhausted he is ordered to notify the court either (1)

that he is withdrawing the claims or (2) that he is proceeding in

state court to exhaust the claims. 

 In the event he chooses to exhaust in state court, he must

commence the state court proceedings within thirty (30) days of

the date of this order. I will order the proceedings stayed and

the petition (document no. 1) held in abeyance, pending complete

exhaustion of state remedies. The stay will be issued under the

following two conditions:

1. Kierstead is ordered to contact this court

every 90 days, beginning from the date of entry of

this order, and inform the court of the status and

pendency of his state court proceedings, if any,

and the disposition of any appeal or related

matter. 

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2. Within 30 days following any ruling and/or

notification by the New Hampshire Supreme Court on

the claims at issue, and the exhaustion of such

claims, Kierstead must notify this court of the

ruling and submit all briefs or other pleadings

filed in the state court proceedings; he must also

file a request with this Court, stating that his

state court matter has been disposed of and that

he wishes to terminate the stay and have this

court further consider his petition. 

Failure to comply with either condition may result in

dismissal of the petition without prejudice. 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: January 27, 2006

cc: Shawn Kierstead, pro se

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