UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Gerard Joseph Bean

v. Civil No. 07-cv-328-JL

Larry Blaisdell, Warden,

Northern New Hampshire

Correctional Facility

REPORT AND RECOMMENDATION

Gerard Bean’s petition for a writ of habeas corpus (document

nos. 8-10, 17, 20, 21, 28 & 46)1 is presently before the Court

for preliminary review to determine whether it is facially valid

and may proceed. See Rule 4 of the Rules Governing Section 2254

Cases in the United States District Courts; see also United

States District Court District of New Hampshire Local Rule (“LR”) 

1Bean filed his original petition on November 29, 2007

(document no. 8). Bean filed addenda to the petition on December

7, 2007 (document no. 9), December 10, 2007 (document no. 10),

February 5, 2008 (document no. 17), March 4, 2008 (document no.

20), March 20, 2008 (document no. 21), and June 23, 2008

(document no. 28). This Court also requested documents regarding

exhaustion of Bean’s claims directly from the New Hampshire

Supreme Court. Those documents have been received and docketed

in this matter (document no. 46). All of these pleadings and

documents will be considered, in the aggregate, to constitute the

habeas petition in this matter.

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4.3(d)(2) (authorizing magistrate judge to preliminarily review

pro se prisoner filings pursuant to 28 U.S.C. § 1915A).

Standard of Review

Under this Court’s local rules, when an incarcerated person

commences an action pro se and in forma pauperis, the Magistrate

Judge conducts a preliminary review. LR 4.3(d)(2). In

conducting the preliminary review, the Court construes all of the

factual assertions in the pro se pleadings 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 pro se complaint states any claim upon

which relief could be granted, the Court must consider whether

2

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the complaint, construed liberally, Erickson, 551 U.S. at 94,

“contain[s] sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” 

Ashcroft v. Iqbal, ___ U.S. ___, ___, 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 a complaint sufficiently

states such a claim for relief 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

Gerard Bean was convicted of attempted kidnapping in April

2004 and sentenced on June 10, 2004 to 10-30 years in prison. 

Bean appealed his conviction, which was affirmed by the New

Hampshire Supreme Court (“NHSC”) on April 25, 2006. Bean filed a

petition for a writ of habeas corpus in the Coos County Superior

Court which was denied on January 17, 2007. Bean appealed that

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loss to the NHSC. The NHSC declined his appeal on August 16,

2007. Bean then filed his federal habeas action in this Court. 

On February 7, 2008, this Court ordered Bean to amend his

petition to demonstrate that all of his claims had been exhausted

in the state courts (document no. 18). On August 18, 2008, this

Court granted Bean’s motion to stay this action (document no. 31)

to allow him to return to the state courts to exhaust his

unexhausted claims. Bean now returns to this Court, the Court

having granted his motion to reopen his case (document no. 43),

to have his petition considered. 

The Claims

In my February 7, 2008 Order, I listed eleven claims that

appeared to be the claims intended by Bean in his petition. 

Since that time, the record has been expanded by additional

filings. Accordingly, I have adjusted my assessment of the

claims raised in the petition to include all of the information

before the Court and find that the following claims have been

raised in Bean’s petition2:

1. Bean’s Fourth Amendment right to be free from an 

2The claims as identified in this Report and Recommendation

will be considered to be the claims raised in Bean’s petition for

all purposes. If Bean disagrees with the claims as identified,

he must do so by properly objecting to this Report and

Recommendation or moving to amend his petition.

4

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unlawful seizure of his person was violated when he was 

stopped, detained, and subsequently arrested by police 

officers without probable cause and without a warrant;

2. Bean’s Fifth Amendment right against self-incrimination

was violated when statements he made prior to being 

advised of his right to remain silent and other rights 

secured by Miranda v. Arizona, 384 U.S. 436 (1966), 

were admitted in evidence against him at trial;3

3. Bean’s rights to due process and a fair trial, 

guaranteed by the Sixth and Fourteenth Amendments, were 

violated when the trial court:

a. improperly permitted the prosecution to refresh 

the victim’s recollection; and

b. improperly admitted hearsay evidence at trial 

concerning Bean’s alleged statements to the 

victim;

4. Bean’s right to confront the witnesses and evidence 

against him, guaranteed by the Sixth Amendment, was 

violated when the trial court failed to allow Bean 

access to an investigator or other expert to examine 

and testify regarding improper and suggestive interview

techniques used to interview the child victim;

5. Bean’s right to the effective assistance of counsel, 

guaranteed by the Sixth Amendment, was violated when 

3In Bean’s pleadings, he has often characterized this claim

as asserting a violation of a right not to be questioned without

having first been advised of his right to remain silent. In

fact, Miranda does not protect individuals from being questioned

in absence of being advised of their rights, but from being

forced to incriminate themselves in court by having those

statements admitted in evidence against them. See Miranda, 384

U.S. at 444. 

5

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his trial counsel:

a. failed to move to exclude certain testimony at 

trial;

b. failed to move to suppress inculpatory statements 

made by Bean;

c. failed to interview the victim;

d. failed to adequately cross-examine the victim;

e. failed to seek funds for an investigator to 

interview the victim;

f. failed to investigate the accuracy of statements 

made by the police and other witnesses;

g. failed to raise certain objections at trial;

h. failed to preserve certain issues for appeal;

i. failed to call any witnesses, including expert 

witnesses, at trial;

j. failed to conduct adequate cross-examination of 

the trial witnesses;

k. failed to follow up on Bean’s sentence review;

l. failed to act to correct the erroneous criminal 

arrest record relied upon by the prosecution at 

arraignment to obtain a high bail;

m. failed to investigate and/or depose certain 

witnesses;

n. failed to move for a change of venue in light of 

the adverse publicity Bean’s case received;

o. failed to move to digitally enhance a video that, 

if enhanced, would have contained exculpatory 

6

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evidence; and

p. failed to question the jurors after Bean’s 

conviction;

6. Bean’s Sixth Amendment right to the effective 

assistance of appellate counsel was violated when his 

appellate attorney failed to raise and brief certain 

issues in Bean’s direct appeal;

7. Bean’s Sixth Amendment right to a speedy trial was 

violated when he was arrested in October 13, 2002 for 

attempted kidnapping, but not indicted for that offense

until February 4, 2003; 

8. Bean’s rights to due process and a fair trial, 

guaranteed by the Sixth and Fourteenth Amendments, were 

violated when the prosecutor engaged in misconduct by:

a. presenting false and/or perjured testimony at 

trial; and

b. failing to introduce certain exculpatory evidence 

at trial;

9. The prosecutor in Bean’s case violated the New 

Hampshire Rules of Professional Conduct prior to and 

during Bean’s trial;

10. Bean’s rights to due process and a fair trial, 

guaranteed by the Sixth and Fourteenth Amendments, were 

violated when he was convicted based on perjured and/or

false testimony; and

11. Bean’s rights to due process and a fair trial, 

guaranteed by the Sixth and Fourteenth Amendments, were 

violated when the trial judge failed to declare a 

mistrial after two child witnesses were deemed 

incompetent to testify.

Discussion

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I. Fourth Amendment Claim (Claim #1)

Bean alleges that his Fourth Amendment rights were violated

when he was detained and then arrested by the police without

probable cause. Where State courts have provided an opportunity

for full and fair litigation of a Fourth Amendment claim, a

petitioner cannot obtain federal habeas corpus relief on the

grounds that the evidence obtained as a result of an

unconstitutional search or seizure was introduced at his trial. 

See Stone v. Powell, 428 U.S. 465, 482 (1976); Sanna v. DiPaolo,

265 F.3d 1, 8 (1st Cir. 2001) (“a federal habeas court ordinarily

cannot revisit a state court’s disposition of a prisoner’s Fourth

Amendment claims”). 

“[A] full and fair opportunity to litigate” means that the

state has provided the defendant in a state criminal matter with

procedures “suitably crafted to test for possible Fourth

Amendment violations.” Id. at 9. If such a procedure exists,

whether or not the criminal defendant avails himself of that

procedure, habeas review is precluded. Id. (citing Caver v.

Alabama, 577 F.2d 1188, 1992 (5th Cir. 1978)). Where, as here,

an attorney is alleged to have failed to file a motion to

suppress, Stone does not bar habeas review of a claim of

ineffective assistance of counsel based on that failure. See

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Kimmelman v. Morrison, 477 U.S. 365, 375-77 (1986).4 Such an

allegation, however, does not give rise to a federal habeas claim

grounded independently in the Fourth Amendment. See id. at 382

(“Although a meritorious Fourth Amendment issue is necessary to

the success of a Sixth Amendment claim like Respondent’s, a good

Fourth Amendment claim alone will not earn a prisoner federal

habeas relief”). Nothing in the record suggests that the state

or the courts did anything to deny Bean or his attorney the

opportunity to litigate the Fourth Amendment claim. See Sanna,

265 F.3d at 8. Bean alleges only that his attorney chose not to

avail himself of that opportunity, a decision with which Bean

disagreed. 

“[T]here is an exception [to the Stone rule] for instances

in which a habeas petitioner had no realistic opportunity to

litigate his Fourth Amendment claim fully and fairly in the state

system.” Sanna, 265 F.3d at 8. In addition, a narrow exception

exists for rare cases involving an egregious, unconscionable,

“irretrievable breakdown” of the state court processes. Id. at

9. The petitioner bears the burden of proving that his or her

4Bean’s petition in fact includes a claim alleging that he

received ineffective assistance of counsel when his attorney

failed to file a motion to suppress evidence obtained as a result

of his allegedly unconstitutional seizure by police.

9

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case fits within the contours of these exceptions to the Stone

rule. See id. at 10. Bean has alleged no facts suggesting that

any exception to the Stone rule applies in his case. Bean’s

Fourth Amendment claim, enumerated as Claim #1 above, is not

cognizable in a § 2254 petition, and, accordingly, I recommend

that it be dismissed.

II. Professional Misconduct Claim (Claim # 9)

The professional conduct of attorneys in New Hampshire is

regulated by the New Hampshire Supreme Court through the New

Hampshire Rules of Professional Conduct. See Copp v. Atwood, No.

Civ. 03-288-JD, 2005 WL 139180, *6 (D.N.H. Jan. 24, 2005). Those

rules, however, do not provide the basis for a private cause of

action by individuals alleging that they were wronged by attorney

misconduct. See id. (citing Wong v. Ekberg, 148 N.H. 369, 375,

807 A.2d 1266, 1271 (2002)). Accordingly, a violation of the

rules of professional conduct cannot be the basis for a federal

habeas action, as it neither alleges a violation of federal law,

see 28 U.S.C. § 2254(a) (habeas relief available for persons in

custody in violation of the federal law, constitution, or

treaties), nor gives rise to a private right of action against 

the attorney. I recommend that Bean’s Claim #9 be dismissed on

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that basis.

III. Exhaustion

To be eligible for habeas relief on his cognizable claims,

Bean 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); see also Adelson v. DiPaola, 131

F.3d 259, 261 (1st Cir. 1997) (explaining exhaustion principle). 

Bean’s imprisonment pursuant to the sentence imposed on his

challenged conviction satisfies the custody requirement. 

Exhaustion, however, remains at issue.

Bean has previously been ordered to amend his petition to

demonstrate that each of his habeas claims, including the federal

nature of those claims, has been exhausted in the state courts. 

In response to that Order, Bean returned to the state courts to

litigate his federal habeas claims in a state habeas petition. 

When his petition was denied, Bean appealed to the NHSC. This 

Court has now obtained the documents filed by Bean in pursuit of

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that appeal (document no. 46).5

As previously explained to Bean, a petitioner’s remedies in

New Hampshire are exhausted when the New Hampshire Supreme Court

has had an opportunity to rule on the claims. See Lanigan v.

Maloney, 853 F.2d 40, 42 (1st Cir. 1988). “In order to exhaust a

claim, the petitioner must ‘present the federal claim fairly and

recognizably’ to the state courts, meaning that he ‘must show

that he tendered his federal claim in such a way as to make it

probable that a reasonable jurist would have been alerted to the

existence of the federal question.’” Clements v. Maloney, 485

F.3d 158, 162 (1st Cir. 2007) (internal quotations and citation

omitted). A habeas petitioner may fairly present a claim by

doing any of the following: “‘(1) citing a provision of the

federal constitution; (2) presenting a federal constitutional

claim in a manner that fairly alerts the state court to the

federal nature of the claim; (3) citing federal constitutional

precedents; or (4) claiming violation of a right specifically

5Bean notified the Court that he had made numerous attempts

to retrieve these documents, but that he was unable to do so

because he had no money in his inmate account to pay for copies. 

For the sake of expedience, the Court sought the copies of Bean’s

documents directly from the NHSC. As these documents have been

electronically docketed in this matter, the paper copies obtained

from the NHSC will be forwarded to Bean, as it does not appear

that he presently possesses copies of the documents.

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protected in the federal constitution.’” Dutil v. Murphy, 550

F.3d 154, 158 (1st Cir. 2008) (citation omitted), cert. denied,

___ U.S. ___, 129 S. Ct. 2064 (2009); cf. Martens v. Shannon, 836

F.2d 715, 717 (1st Cir. 1988) (simply reciting facts underlying

state claim, which might support either state or federal claim,

is inadequate to constitute fair presentation of federal claim to

state court). In some circumstances, a petitioner can prove that

he has exhausted a federal issue by showing that he cited state

court decisions that rely on federal law, or he articulated a

state claim that is indistinguishable from one arising under

federal law. See Nadworny v. Fair, 872 F.3d 1093, 1099-1102 (1st

Cir. 1989). The petitioner has the burden of demonstrating that

the state and federal claims are so similar that asserting only

the state claim probably alerted the state court to the federal

aspect of the claim. See id. at 1100.

Bean has demonstrated exhaustion of his claims numbered 2-

8,6 and 10.7 Bean has not, however, demonstrated that his claim

6Claim #5 lists 16 separate ineffective assistance of

counsel claims, identified as (a) through (p). I find that Bean

has demonstrated exhaustion of each of the sixteen claims, as,

along with his assertion of his Sixth Amendment right to the

effective assistance of counsel, he has complained specifically

to the NHSC of each of the acts of ineffective assistance

complained of here. I find that a reasonable jurist considering

Bean’s filings in the NHSC as a whole “would have been alerted to

the existence of the federal question” raised in each of the

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#11, alleging judicial misconduct for failing to declare a

mistrial, has been exhausted. None of the documents obtained

from the NHSC or otherwise provided by Bean contain any

indication that his federal claim regarding the failure to grant

a mistrial has ever been presented to the NHSC for consideration. 

Bean’s petition, therefore, presently contains both

exhausted and unexhausted federal claims. If Bean were to press

the petition while it contains an unexhausted claim, the Court

would be forced to dismiss the entire petition. See Nowaczyk v.

Warden, 299 F.3d 69, 75 (1st Cir. 2002) (citing Rose v. Lundy,

455 U.S. 509, 513-21 (1982)). Bean, however, has the option to

forego his presently unexhausted claim by amending his complaint

to remove that claim altogether.8 

IV. Stay

Bean was directed to return to the state courts to exhaust

individual claims. Clements, 485 F.3d at 162 (internal

quotations and citation omitted). 

7If my recommendation to dismiss claims #1 and #9 is

approved, the status of exhaustion of those claims is of no

consequence.

8If petitioner chooses to forego his unexhausted claim, he

will likely be unable to raise that claim in a future habeas

action, due to the prohibition against second or successive

habeas petitions. See 28 U.S.C. § 2244.

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each of his claims almost two years ago. Since then, Bean has

exhausted all but one of the cognizable habeas claims raised in

his petition in the state courts. Bean’s petition is therefore

mixed. A mixed petition may be stayed to allow exhaustion in the

state courts where 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.” Rhines v. Weber, 544

U.S. 269, 278 (2005). I cannot find that, after two years and

ample opportunity to exhaust his claims in the state court, that

there is good cause for his failure to exhaust claim #11. 

Accordingly, I find that it is inadvisable for the Court to

further stay this matter. Instead, in an Order issued

simultaneously with this Report and Recommendation, I will direct

Bean to notify this Court in writing, within thirty days of the

date of this Order whether he wishes to proceed with his petition

unchanged, understanding that to do so will result in my

recommendation that this matter be dismissed, or whether he would

like to forego his presently unexhausted claim. 

Conclusion

For the foregoing reasons, I recommend that Bean’s claims

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numbered 1 and 9 above be dismissed as they fail to state claims

cognizable in a federal habeas action. Any objections to this

report and recommendation must be filed within fourteen (14) days

of receipt of this notice. Failure to file objections within the

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

order. See Unauth. Practice of Law Comm. v. Gordon, 979 F.2d 11,

13-14 (1st Cir. 1992); United States v. Valencia-Copete, 792 F.2d

4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: February 3, 2010 

cc: Gerard Joseph Bean, pro se

JM:jba

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