UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Neville Mahadeo

v. Civil No. 08-cv-053-JL

Richard Gerry, Warden,

New Hampshire State Prison

O R D E R

Before the Court is Neville Mahadeo’s petition for a writ of

habeas corpus (document no. 1). 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

District of New Hampshire Local Rule (“LR”) 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

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

magistrate judge is directed to conduct a preliminary review. 

See LR 4.3(d)(2). In conducting the preliminary review, the

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Court construes pro se pleadings liberally, however inartfully

pleaded. See Erickson v. Pardus, ___ U.S. ___, 127 S. Ct. 2197,

2200 (2007) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976)

and Haines v. Kerner, 404 U.S. 519, 520-21 (1972) 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.” 

See Castro v. United States, 540 U.S. 375, 381 (2003) (noting

that courts may construe pro se pleadings so as to avoid

inappropriately stringent rules and unnecessary dismissals of

claims); Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). 

All of the factual assertions made by a pro se plaintiff and

inferences reasonably drawn therefrom must be accepted as true. 

See id. This review ensures that pro se pleadings are given fair

and meaningful consideration.

Background

On July 15, 2004, Mahadeo was convicted, after a jury trial,

of a number of misdemeanor and felony offenses. Mahadeo was

sentenced on July 23, 2004 to serve twelve months in the

Strafford County House of Correction, followed by 3 1⁄2 - 7 years

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1The claims, as identified herein, will be considered to be

the claims raised in the petition for all purposes. If Mahadeo

disagrees with the claims as identified, he must properly move to

amend his petition.

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in the New Hampshire State Prison, the sentence he is currently

serving. An additional 3 1⁄2 - 7 prison sentence was suspended for

a period of ten years. Mahadeo filed a direct appeal of his

conviction in the New Hampshire Supreme Court (“NHSC”) on August

19, 2004 alleging, among other things, that his federal due

process rights had been violated by the exclusion of exculpatory

defense exhibits from evidence at his trial. His conviction was

affirmed on June 17, 2005. 

On September 19, 2005, Mahadeo filed a motion for a new

trial in the state Superior Court. The motion was denied on

December 12, 2006. Again, Mahadeo appealed to the NHSC. In his

notice of appeal, Mahadeo alleged that he had been deprived of

his federal constitutional right to the effective assistance of

counsel, based on a number of failures of his trial attorney,

including the three grounds presented here, and enumerated below,

for consideration. The NHSC declined the appeal on February 27,

2007. This petition followed.

Mahadeo raises the following four claims for relief in the

instant petition:1

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1. The trial court violated Mahadeo’s Fourteenth Amendment

due process rights and his Sixth Amendment right to 

confront the evidence against him by not allowing 

Mahadeo to impeach the complaining witness at his trial

with letters she wrote after the alleged offense, 

recanting her accusations;

2. Mahadeo was denied his Sixth Amendment right to the 

effective assistance of counsel when his trial counsel 

failed to move to dismiss a charge against him after 

the entry of the prosecution’s case, because an 

essential element of the offense had not been proven by

the prosecution;

3. Mahadeo was denied his Sixth Amendment right to the 

effective assistance of counsel when his trial counsel 

coerced him into waiving his right to testify at trial 

by threatening to withdraw as counsel from his case if 

he exercised his right to testify in his own defense;

4. Mahadeo was denied his Sixth Amendment right to the 

effective assistance of counsel when his trial counsel 

failed to properly provide exculpatory defense exhibits

to opposing counsel, preventing the introduction of the

exhibits at trial.

Discussion

To be eligible for federal habeas relief, Mahadeo 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

process. See 28 U.S.C. § 2254(a) & (b); Duncan v. Kennedy, 513

U.S. 364, 365 (1995) (per curiam). Mahadeo satisfies the first

requirement as he is presently in custody. 

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The Court further finds that Mahadeo satisfies the

requirement that state court remedies be exhausted. 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 (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)). In order to fairly present

his claim in the state courts, Mahadeo need only provide the

state courts with one full opportunity to pass upon the federal

question presented. O’Sullivan v. Boerckel, 526 U.S. 838, 844-45

(1999). I find that Mahadeo, by raising his claims, including

the federal nature of the claims, before the NHSC, has fairly

presented all four of his current claims to that court for

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2Mahadeo indicates in his petition that he intends to return

to the state courts to exhaust one of his claims, numbered 4

above. I find that Mahadeo has already demonstrated that the

federal constitutional argument supporting that claim has been

presented to the NHSC, and the claim is thus exhausted. 

Accordingly, Mahadeo needn’t seek a stay of this petition or

return to the NHSC to exhaust that claim.

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consideration. Mahadeo has, therefore, exhausted his claims in

the state courts.2

Conclusion

The Court orders that the petition be served upon

Respondent, who shall file an answer or other pleading in

response to the allegations made therein. See § 2254 Rule 4

(requiring reviewing judge to order a response to the petition). 

Service shall be completed by mailing to the New Hampshire Office

of the Attorney General, which is the prison’s attorney, by

certified mail, return receipt requested, copies of this Order

and the habeas petition (document no. 1).

 Respondent shall answer or otherwise plead 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

the answer). 

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Upon receipt of the response, the Court will determine

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

circumstances under which a 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’ attorneys. 

SO ORDERED. 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: April 1, 2008

cc: Neville Mahadeo, pro se

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