UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Richard L. Duncan

v. Civil No. 08-cv-244-JL

Warden, Lakes Region Facility

O R D E R

Pro se petitioner Richard L. Duncan has filed a petition for

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

challenging his New Hampshire state court conviction (document

no. 1). The petition is before me for preliminary review. See

Rule 4 of the Rules Governing § 2254 Proceedings (“Habeas Rules”)

(requiring initial review to determine whether the petition is

facially valid); see also United States District Court for the

District of New Hampshire Local Rule (“LR”) 4.3(d)(2)

(authorizing the magistrate judge to preliminarily review pro se

pleadings). 

For the reasons stated below, I find that the petition does

not at this time make a facially sufficient showing that Duncan

is entitled to relief. I therefore order him to amend the

petition to demonstrate exhaustion of each claim before I will

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1Upon completion of this sentence, Duncan claims, he must

serve the following future sentence imposed by the New Hampshire

Superior Court (Sullivan County): 2-7 years, consecutive, all

suspended on five years of good behavior.

2To the extent Duncan challenges the conditions of his

confinement and intends to bring retaliation claims against

2

direct that the petition be answered.

Background

After entering a guilty plea, Duncan was convicted on

November 26, 2007 by the New Hampshire Superior Court (Grafton

County) of robbery. He was sentenced to a term of imprisonment

and is currently serving his sentence at the Lakes Region

Facility (“LRF”).1 He concedes that he did not file an appeal of

his conviction with the New Hampshire Supreme Court (“NHSC”). 

The record reveals that Duncan filed a motion to suspend his

minimum sentence “on grounds of undue stress,” which allegedly

stemmed from harassment by prison staff and other inmates. In

that motion, Duncan complained that since his arrival at the LRF

on February 1, 2008, prison staff and other inmates repeatedly

subjected him to harassment and ridicule on the basis of his

sexuality, voice mannerism and sexual preference. He further

complained that he feared retaliation by prison staff for

addressing such issues.2 On March 28, 2008, the superior court

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prison staff, he may bring suit under Section 1983. See Preiser

v. Rodriguez, 411 U.S. 475, 498-99 (1973)(drawing a distinction

between challenges to conditions of confinement under Section

1983 and challenges to the fact or duration of confinement under

the habeas statutes). 

3N.H. Rev. Stat. Ann. § 651:20 (I) provides in pertinent

part that:

Notwithstanding any other provision of law,

except as provided in subparagraphs (a),(b),

and (c), the sentence to imprisonment of any

person may be suspended by the sentencing

court at the time of imposition of the

sentence or at any time thereafter in

response to a petition to suspend sentence 

which is timely brought in accordance with

the limitations set forth below in

subparagraphs (a),(b), and (c).

N.H. Rev. Stat. Ann. 651:20(I)(d) provides that “Petitions filed

which do not meet the criteria in (a), (b), or (c) above shall be

dismissed without a hearing.”

4Duncan has not identified the requirements to which he

refers. N.H. Rev. Stat. Ann. 651:20(I)(a) provides, in relevant

part, that: a petition to suspend sentence may not be brought

“until such person has served at least 4 years or 2/3 of his

minimum sentence, whichever is greater, and not frequently than

every three years.”

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denied his motion without prejudice as premature and cited to

N.H. Rev. Stat. Ann. (“RSA”) § 651:20, I(d).3 Duncan claims that

he did not seek further appellate review because he “did not meet

the requirements of RSA 651:20."4

Duncan now brings the instant petition in which he alleges

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5To the extent Duncan challenges the conditions of his

confinement and intends to allege claims arising from the denial

of adequate medical care, he may bring suit under Section 1983. 

See Preiser, 411 U.S. at 499 (holding that Section 1983 is the

proper remedy for a state prisoner who is challenging the

conditions of his prison life, but not the fact or duration of

his custody).

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the following grounds for federal habeas corpus relief:

1. conviction obtained by a guilty plea that was

unlawfully induced or that was not knowing,

intelligent and voluntary when (a) Duncan accepted

a guilty plea while he was under the influence of

prescription medication that impaired his ability

to understand the plea and (b) when he accepted a

guilty plea under duress and out of fear (Ground

1);

2. prison staff increased Duncan’s anxiety medication

(Klonopin) five times the amount prescribed since

his admission to the LRF on February 1, 2008; in

addition, prison staff prescribed Duncan Vistril

and Zoloft for his anxiety (Ground 2)5; 

3. denial of the Sixth Amendment right to effective

assistance of counsel when Duncan’s courtappointed attorney failed to appear for his

arraignment in state court and failed to contact

him until November 26, 2008 (Ground 3); and

4. conviction obtained by a guilty plea that was not

knowing, intelligent and/or voluntary when Duncan

accepted a guilty plea in reliance upon his

counsel’s false statements that misrepresented the

terms of the plea (Ground 4).

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).

Discussion

I. Custody and Exhaustion

To be eligible for habeas relief, Duncan 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); see

also Duncan v. Henry, 513 U.S. 364, 365 (1995). He satisfies the

first requirement as he is currently incarcerated at the LRF and

thus is in custody. However, Duncan fails to satisfy the second

requirement because the petition does not demonstrate that he has

fully exhausted his state remedies with regard to each claim. 

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Nor has he alleged any facts to suggest that effective state

court remedies are unavailable to him.

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 federal constitutional claims. See Lanigan v.

Maloney, 853 F.2d 40, 42 (1st Cir. 1988), cert. denied, 488 U.S.

1007 (1989) (“habeas corpus petitioner must have presented the

substance of his federal constitutional claim to the state

appellate courts so that the state had the first chance to

correct the claimed constitutional error”); see also Baldwin v.

Reese, 541 U.S. 27, 29 (2004) (citing Duncan, 513 U.S. at 365-66

(requiring petitioner to “fairly present” his claim in the

appropriate state courts, including a state supreme court with

powers of discretionary review, thereby alerting that court to

the federal nature of the claim)). “[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). 

In the instant petition, Duncan raises four grounds for

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federal habeas corpus relief. He has not adequately demonstrated

that he presented each claim and the federal nature of each claim

to the NHSC for review. Accordingly, he has failed to

demonstrate exhaustion of state remedies as to the four claims

raised in his federal petition. To demonstrate exhaustion of his

claims, Duncan must provide this court with copies of any

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

final judgments pertaining to his state court proceedings. 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). In particular, he should provide

this Court with a copy of any appeals filed with the NHSC. He

may need to return to the state courts to fully present his

unexhausted claims and the federal nature of each claim before he

can make the required amendment to his federal petition.

II. Stay

The Supreme Court has held that a district court should stay

a habeas corpus petition 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

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intentionally dilatory litigation tactics. See Rhines v. Weber,

544 U.S. 269, 278-79 (2005) (permitting a federal district court

to stay a federal habeas action and hold the petition in abeyance

while the petitioner exhausts claims in state court). See also

Duncan v. Walker, 533 U.S. 167, 182-83 (2001) (Stevens, J.,

concurring) (district court may retain jurisdiction over a

meritorious claim and stay further proceedings pending the

complete exhaustion of state remedies). Staying unexhausted

claims 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”). Accordingly, to

the extent Duncan elects to exhaust his unexhausted claims, I

will order the proceedings stayed and the petition held in

abeyance pending complete exhaustion of state remedies. 

Conclusion

For the reasons stated above and because the claims raised

in the petition have not been exhausted, I will allow Duncan an

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opportunity to amend his petition to demonstrate exhaustion of

state remedies with regard to his claims and the federal nature

of those claims. To make this showing, he is instructed to

provide the court with a copy of his notice(s) of appeal to the

NHSC and any other relevant state court pleadings, orders or

decisions within thirty (30) days. If the claims have not been

exhausted, he is ordered to notify the court either (1) that he

is withdrawing the unexhausted claims or (2) that he is

proceeding in state court to exhaust them. 

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

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 held in abeyance, pending complete exhaustion of

state remedies. The stay will be issued under the following two

conditions:

1. Duncan 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. 

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, Duncan must notify this Court of the

ruling and submit all briefs or other pleadings

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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: August 18, 2008

cc: Richard L. Duncan, pro se

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