1District Judge Laplante, in his May 14, 2008 Order, found

that Thomas’ challenges to his sentence have been rendered moot

by his release from incarceration on December 4, 2007, but that

Thomas’ challenges to his conviction are not moot. 

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Terry T. Thomas

v. Civil No. 07-cv-385-JL

Warden, New Hampshire State Prison

REPORT AND RECOMMENDATION

Before the Court is Terry Thomas’ petition for a writ of

habeas corpus (document no. 1), filed pursuant to 28 U.S.C. §

2254. I previously recommended that the petition be dismissed

for lack of jurisdiction (document no. 4). Thomas objected to my

Report and Recommendation (document no. 5). Finding that the

objection had merit, the District Judge accepted my

recommendation in part and remanded the matter to me for further

review (document no. 6).1 Accordingly, the petition is again

before me and may proceed to preliminary review at this time. 

The Court undertakes preliminary review of a habeas petition to

determine, among other things, whether it states a claim upon

Case 1:07-cv-00385-JL Document 7 Filed 08/27/08 Page 1 of 28
2As the standard of review set out in my first Report and

Recommendation has not changed since that recommendation was

issued, I again apply that standard of review to this matter.

2

which relief might be granted. See United States District Court

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

Rule 4 of the Rules Governing Section 2254 Cases in the United

States District Courts.2

Background

Terry Thomas was arrested on October 29, 1999 and charged

with three counts of receiving stolen property. Thomas was

detained on bail until March 28, 2000, when he was released on

his own recognizance pending trial. Thomas was convicted, after

a trial, on May 10, 2001. Upon his conviction, the Court revoked

Thomas’ bail, and he was immediately incarcerated. On January 9,

2002, Thomas was sentenced to serve three concurrent terms of 3 1⁄2

- 7 years in prison. Thomas was released from custody, after

serving his maximum sentence, on December 4, 2007.

Case 1:07-cv-00385-JL Document 7 Filed 08/27/08 Page 2 of 28
3The claims as identified herein will be considered, for all

purposes, to be the claims raised in the habeas petition filed in

this matter (document no. 1). If Thomas disagrees with the

claims as identified here, he must do so by properly moving to

amend his petition, or by properly objecting to this Report and

Recommendation.

3

The Claims3

Thomas asserts the following claims for relief:

1. Thomas’ right to the effective assistance of counsel, 

as guaranteed by the Sixth Amendment to the federal 

constitution, was violated when the trial court 

improperly allowed Thomas to proceed pro se where there

was no evidence that he understood the relevant law, 

legal procedures, and rules of evidence, or that he 

could provide himself with an effective defense;

2. Thomas’ right to confront the evidence against him, as 

guaranteed by the Sixth and Fourteenth Amendments to 

the federal constitution, was violated when he was not 

permitted to impeach Hudson Police Officer Cassalia at 

trial with information that was “tantamount to felony 

behavior”;

3. Thomas’ rights to confront the evidence against him, to

a fair trial, to due process, to present a defense, and

to equal protection of the laws, as guaranteed by the 

Fifth, Sixth, and Fourteenth Amendments to the federal 

constitution, were violated when the trial court denied

Thomas, an indigent criminal defendant, funds to obtain

access to a transcript of a pretrial hearing that was 

demonstrably necessary to impeach Hudson Police 

Sergeant Alan Semple at trial;

4. Thomas’ right not to be subjected to unlawful seizure 

of his person, as guaranteed by the Fourth and 

Fourteenth Amendments to the federal constitution, was 

violated when Thomas was convicted with the use of 

evidence obtained after an unlawful detention and 

arrest;

Case 1:07-cv-00385-JL Document 7 Filed 08/27/08 Page 3 of 28
4

5. Thomas’ right against self-incrimination, as guaranteed

by the Fifth and Fourteenth Amendments of the federal 

constitution, was violated when statements obtained 

from Thomas in violation of his constitutional rights 

were used against him at trial;

6. Thomas’ right to the effective assistance of counsel, 

due process, and a fair trial, as guaranteed by the 

Fifth, Sixth and Fourteenth Amendments to the federal 

constitution, were violated when the trial court 

accepted his waiver of his right to counsel as knowing,

intelligent and voluntary without adequately explaining

the roles and duties of stand-by counsel;

7. Thomas’ right to due process, as guaranteed by the 

Fifth and Fourteenth Amendments of the federal 

constitution, was violated, when the prosecution 

repeatedly nolle prossed the indictments against him 

and reindicted him, thus leaving him to defend himself 

without a clear idea of the specific criminal acts with

which he had been charged;

8. Thomas’ rights to due process and a fair trial, as 

guaranteed by the Fifth, Sixth, and Fourteenth 

Amendments to the federal constitution, were violated 

when the trial court denied Thomas the opportunity to 

present an opening statement to the jury;

9. Thomas’ rights to due process, confrontation, and a 

fair trial, as guaranteed by the Fifth, Sixth, and 

Fourteenth Amendments to the federal constitution, were

violated when the trial court repeatedly and 

inappropriately limited and cut short Thomas’ 

questioning of witnesses at a pretrial hearing and at 

trial;

10. Thomas’ rights to due process and a fair trial, as 

guaranteed by the Fifth, Sixth, and Fourteenth 

Amendments to the federal constitution, were violated 

when the trial court prevented Thomas from objecting to

the prosecutor’s improper closing statement;

Case 1:07-cv-00385-JL Document 7 Filed 08/27/08 Page 4 of 28
5

11. Thomas’ rights to a fair trial, due process, and an 

impartial judge, as guaranteed by the Fifth, Sixth, and

Fourteenth Amendments to the federal constitution, were

violated when the judges presiding over pretrial and 

trial matters in his criminal case exhibited bias 

against Thomas to the prejudice of his criminal case;

12. Thomas’ right to due process, as guaranteed by the 

Fifth and Fourteenth Amendments to the federal 

constitution, was violated when the trial court denied 

Thomas’ motion to dismiss filed on February 8, 2000 and

amended on March 16, 2000;

13. Thomas’ rights to a fair trial, due process, and an 

impartial jury, as guaranteed by the Fifth, Sixth, and 

Fourteenth Amendments to the federal constitution, were

violated when the trial court refused to ask voir dire 

questions of potential jurors regarding the potential 

of bias resulting from extensive media coverage of the 

case;

14. Thomas’ rights to due process, the effective assistance

of counsel, and to petition the government for a 

redress of grievances, as guaranteed by the First, 

Fifth, Sixth, and Fourteenth Amendments to the federal 

constitution, as well as his state constitutional 

rights, were violated when the New Hampshire Supreme 

Court refused to allow Thomas to file a pro se 

supplemental brief in his appeal;

15. Thomas’ rights to due process and equal protection of 

the laws, as guaranteed by the Fifth and Fourteenth 

Amendments to the federal constitution, were violated 

when he was denied access to copies of transcripts and 

audiotapes which were necessary to his ability to 

demonstrate that the transcripts in his case were 

inaccurate and that the inaccuracies have prejudiced 

his rights;

16. Thomas’ rights to due process, and an impartial judge, 

as guaranteed by the Fifth, Sixth, and Fourteenth 

Amendments to the federal constitution, were violated 

Case 1:07-cv-00385-JL Document 7 Filed 08/27/08 Page 5 of 28
6

when he was sentenced to prison by a judge against whom

he had previously filed a Judicial Conduct Complaint, 

and who imposed an unfair and excessive sentence on 

Thomas after considering inaccurate information;

17. Thomas’ rights to due process and an impartial judge, 

as guaranteed by the Fifth, Sixth, and Fourteenth 

Amendments to the federal constitution, as well as his 

rights under state law, were violated when he was 

denied bail pending appeal by a judge against whom he 

had filed a judicial conduct complaint, and who 

exhibited bias against him in declining bail pending 

appeal;

18. Thomas’ rights to due process and a fair trial, as 

guaranteed by the Fifth, Sixth, and Fourteenth 

Amendments to the federal constitution, were violated 

when a newspaper reporter and members of the Hudson 

Police department published false statements about 

Thomas and the alleged criminal activities leading to 

his conviction;

19. Thomas’ rights to due process, a fair trial, to present

a defense, to equal protection of the laws, and to the 

effective assistance of counsel, as guaranteed by the 

Fifth, Sixth, and Fourteenth Amendments to the federal 

constitution, were violated when the prosecution 

withheld from Thomas a written statement from witness 

Renee Lewis that, if provided to petitioner in 

discovery, would have revealed exculpatory evidence;

20. Thomas’ rights to due process, equal protection of the 

laws, the effective assistance of counsel, and a fair 

trial, as guaranteed by the Fifth, Sixth, and 

Fourteenth Amendments to the federal constitution, were

violated when the prosecution falsely represented that 

certain inculpatory statements were made by witness 

Veronica Thomas;

21. Thomas’ rights to due process, equal protection, the 

effective assistance of counsel, and a fair trial, as 

guaranteed by the Fifth, Sixth, and Fourteenth 

Case 1:07-cv-00385-JL Document 7 Filed 08/27/08 Page 6 of 28
7

Amendments to the federal constitution, were violated 

when the Hudson Police manufactured “dog tracking” 

evidence against Thomas and otherwise manipulated and 

tampered with the evidence in the case;

22. Thomas’ right not to be subjected to double jeopardy, 

as guaranteed by the Fifth and Fourteenth Amendments to

the federal constitution, was violated by the dismissal

of an empaneled and sworn jury and subsequent convening

of a new jury after the trial had been continued;

23. Thomas’ right to a speedy trial, as guaranteed by the 

Sixth and Fourteenth Amendments to the federal 

constitution was violated when the prosecution, on more

than one occasion, reindicted Thomas for the same 

alleged offense immediately prior to scheduled trial 

dates, thus forcing a continuance of the trial and 

prejudice to Thomas resulting from the delay;

24. Thomas’ right to the effective assistance of counsel at

trial, as guaranteed by the Sixth and Fourteenth 

Amendments to the federal constitution, was violated 

when his attorney, Mona Igram:

A. failed to view or inventory the evidence against 

Thomas,

B. failed to properly and promptly investigate the 

case, 

C. failed to assure the preservation of exculpatory 

911 tape evidence,

D. failed to obtain a transcript of the probable 

cause hearing in the case, 

E. failed to properly challenge the sufficiency of 

evidence in the case,

F. failed to address and litigate the occurrence of 

police misconduct in the case, including evidence 

Case 1:07-cv-00385-JL Document 7 Filed 08/27/08 Page 7 of 28
8

that the police tampered with and manipulated 

evidence,

G. failed to challenge the legitimacy of dog-track 

evidence in the case,

H. failed to file motions to suppress,

I. failed to conduct depositions in the case,

J. failed to assure sequestration of Hudson Police 

witnesses during Thomas’ probable cause hearing,

K. failed to adequately prepare for a December 1999 

bail hearing, 

L. failed to challenge the indictments against 

Thomas, and

M. failed to properly assist or advise Thomas during 

transition of representation to Attorney Paul 

Bennett;

25. Thomas’ right to the effective assistance of counsel at

trial, as guaranteed by the Sixth and Fourteenth 

Amendments to the federal constitution, was violated 

when his attorney, Paul Bennett:

A. refused to litigate an ineffective assistance of 

counsel claim against Attorney Igram,

B. failed to ascertain or address any prejudicial 

impact accruing from Attorney Igram’s ineffective 

assistance, 

C. failed to properly investigate the case, 

D. failed to adequately challenge and confront the 

evidence against Thomas,

E. failed to inventory the evidence against Thomas,

Case 1:07-cv-00385-JL Document 7 Filed 08/27/08 Page 8 of 28
9

F. failed to challenge the sufficiency of the 

evidence against Thomas,

G. filed a motion seeking a deadline extension 

against Thomas’ wishes and misrepresented Thomas’ 

wishes regarding that motion to the trial court,

H. failed to prepare petitioner for, and assist 

petitioner at, pretrial hearings and at trial,

I. failed to provide petitioner with proper and 

adequate legal counsel,

J. failed to secure and subpoena, or advise Thomas as

to how to secure and subpoena, necessary defense 

witnesses for trial, and

K. improperly coerced Thomas to agree to a 

continuance of trial, which allowed the state to 

obtain new inculpatory evidence to use against 

Thomas;

26. Thomas’ right to the effective assistance of counsel at

trial, as guaranteed by the Sixth and Fourteenth 

Amendments to the federal constitution, was violated 

when his attorney, David Bos:

A. refused to adequately address and litigate the 

ineffective assistance provided to Thomas by 

attorneys Igram and Bennett,

B. refused to address and litigate Thomas’ double 

jeopardy claim,

C. refused to address and litigate Thomas’ speedy 

trial claim,

D. failed to obtain an appraisal of the allegedly 

stolen property that was the subject matter of the

criminal charges,

Case 1:07-cv-00385-JL Document 7 Filed 08/27/08 Page 9 of 28
10

E. failed to obtain a view or conduct an inventory of

the allegedly stolen property,

F. failed to take necessary depositions of state 

witnesses,

G. failed to conduct any investigation in the case,

H. failed to adequately address and challenge the 

manipulation and falsification of evidence by the 

Hudson Police, and

I. withdrew from Thomas’ case and relocated to 

Washington D.C., to the detriment of the case;

27. Thomas’ right to the effective assistance of counsel at

trial, as guaranteed by the Sixth and Fourteenth 

Amendments to the federal constitution, was violated 

when his attorney, Jane-Holly Weintraub:

A. refused to adequately address and litigate the 

ineffective assistance provided to Thomas by 

attorneys Igram, Bennett, and Bos,

B. refused to address and litigate Thomas’ double 

jeopardy claim,

C. refused to address and litigate Thomas’ speedy 

trial claim,

D. failed to obtain an appraisal of the allegedly 

stolen property that was the subject matter of the

criminal charges,

E. failed to obtain a view or conduct an inventory of

the allegedly stolen property,

F. failed to adequately address and challenge the 

manipulation and falsification of evidence by the 

Hudson Police,

Case 1:07-cv-00385-JL Document 7 Filed 08/27/08 Page 10 of 28
11

G. obtained an investigator who conducted an 

improper, inadequate, and “fraudulent” 

investigation,

H. failed to conduct adequate depositions of state 

witnesses,

I. failed to insure Thomas’ presence at the 

deposition of witness Robert McIntyre,

J. failed to address the incomplete state of the 

transcript of the deposition of McIntyre,

K. improperly conducted a hearing on Thomas’ motion 

to suppress, in that she:

i. refused to subpoena McIntyre to the hearing 

although he had helpful testimony to provide,

and 

ii. refused to ask specific questions formulated 

by Thomas, and

L. in her capacity as stand-by counsel, refused to 

provide certain court-ordered assistance to 

petitioner, specifically: 

i. instruction or advice as to how to address 

police misconduct, 

ii. instruction or advice as to how to address 

the ineffective assistance of previous 

defense counsel,

iii. instruction or advice as to how to 

interlocutorily appeal the stand-by counsel 

order that required Thomas to proceed to 

trial with stand-by counsel with an actual 

conflict of interest, 

iv. improperly counseled Thomas on witness 

presentation, and

Case 1:07-cv-00385-JL Document 7 Filed 08/27/08 Page 11 of 28
12

v. failed to instruct or advise Thomas as to how

to properly impeach testimony presented by 

the prosecution;

28. Thomas’ rights to a speedy trial, a fair trial, 

protection from double jeopardy, due process, and equal

protection of the laws, as guaranteed by the Fifth, 

Sixth, and Fourteenth Amendments to the federal 

constitution, were violated when the prosecutor in 

Thomas’ criminal case:

A. failed to prevent the police from manipulating and

tampering with evidence,

B. knowingly employed false “dog tracking” evidence 

to establish probable cause to arrest, detain, and

prosecute Thomas, 

C. suborned and used perjured testimony by McIntyre, 

D. conspired with Attorney Bennett and the trial 

court to coercively use the promise of bail 

reduction to:

i. deprive petitioner of his right to a speedy 

trial, 

ii. introduce perjured testimony by McIntyre, and 

iii. subject Thomas to double jeopardy,

E. improperly accused Thomas of a crime he was not 

charged with in closing argument, and

F. knowingly withheld exculpatory evidence from 

Thomas;

29. Thomas’ rights to the effective assistance of counsel, 

due process, and equal protection of the laws, as 

guaranteed by the Fifth, Sixth, and Fourteenth 

Case 1:07-cv-00385-JL Document 7 Filed 08/27/08 Page 12 of 28
4In his petition, Thomas refers to Rumley as his “postconviction” attorney. While this is technically true, it appears

that Rumley represented Thomas at sentencing and at the time the

notice of appeal in Thomas’ direct appeal was filed. 

Accordingly, I will consider Rumley to be one of Thomas’ trial

attorneys, as both sentencing and the filing of a notice of

appeal are functions performed by trial counsel. If Rumley was

truly post-conviction counsel, assisting Thomas in a collateral

attack on his conviction, no habeas claim would arise from his

allegedly ineffective representation of Thomas, as there is no

constitutional right to have an attorney in such state postconviction proceedings. See Coleman v. Thompson, 501 U.S. 722,

752 (1991). Where there is no constitutional right to the

effective assistance of counsel, there is no constitutional

violation, and therefore no habeas claim, for the deprivation of

the effective assistance of counsel. See id. (citing Wainwright

v. Torna, 455 U.S. 586, 587 (1982)). 

13

Amendments, were violated when his post-conviction 

attorney, Mark Rumley:4

A. refused to obtain or review any pretrial hearing 

transcripts prior to preparing Thomas’ notice of 

appeal, thereby causing the appeal to be delayed,

B. refused to compare audio tapes of the trial to the

trial transcripts, despite being advised that 

there were inaccuracies in the transcripts,

C. failed to object to the trial court’s order that 

Thomas pay restitution for crimes he was not 

convicted of committing,

D. failed to address the sentencing court’s 

consideration of criminal offenses Thomas was not 

convicted of committing,

E. failed to obtain a timely sentence review for 

Thomas,

Case 1:07-cv-00385-JL Document 7 Filed 08/27/08 Page 13 of 28
14

F. failed to consult with Thomas, who proceeded pro 

se at trial, prior to preparing the notice of 

appeal in the case,

G. failed to prepare an adequate notice of appeal for

submission to the New Hampshire Supreme Court,

H. failed to address or litigate the ineffective 

assistance of counsel that had been provided by to

Thomas by attorneys Igram, Bennett, Bos, and 

Weintraub,

I. failed to seek recusal of the trial judge even 

though Thomas had filed a then-pending complaint 

against the judge with the Judicial Conduct 

Committee,

J. failed to object to the use by the sentencing 

court of an inaccurate presentence investigation 

report,

K. failed to object to the sentencing court exceeding

the recommendation of the prosecution in imposing 

sentence, and

L. failed to seek bail pending appeal on Thomas’ 

behalf;

30. Thomas’ rights to the effective assistance of appellate

counsel, due process, and equal protection of the laws,

as guaranteed by the Fifth, Sixth, and Fourteenth 

Amendments, were violated when his appellate attorney, 

David Rothstein:

A. acted as appellate counsel on behalf of Thomas 

despite the existence of an actual conflict of 

interest in the representation,

B. refused to compare the pretrial and trial 

audiotape records with the prepared transcripts 

despite being apprised of material inaccuracies in

the transcripts,

Case 1:07-cv-00385-JL Document 7 Filed 08/27/08 Page 14 of 28
15

C. refused to refile any of the pro se pleadings in 

the New Hampshire Supreme Court that that court 

declined to accept when they were filed by Thomas 

acting pro se,

D. refused to ascertain, address, or litigate 

ineffective assistance of counsel claims regarding

the representation Thomas received from Attorneys 

Igram, Bennett, Bos, Weintraub, or Rumley,

E. refused to appeal the Superior Court’s denial of 

Thomas’ motion for bail pending appeal,

F. refused to challenge the accuracy of the pretrial 

and trial transcripts despite Thomas’ assertion 

that the transcripts were significantly flawed and

incomplete,

G. refused to obtain all of the transcripts necessary

to preparing a thorough and adequate appeal of 

Thomas’ conviction and sentence,

H. refused to file a motion to withdraw from Thomas’ 

case after Thomas requested that he do so, 

I. submitted an appeal prior to obtaining necessary 

transcripts of:

i. the March 27, 2001 jury selection during 

which Thomas alleges he was coerced to agree 

to consolidate indictments, continue trial, 

dismiss the jury that had been empaneled and 

sworn, and released on personal recognizance 

bail,

ii. the March 28, 2000 hearing during which 

Thomas’ trial was continued in violation of 

his right to a speedy trial,

iii. the April 19, 2001 final pretrial conference 

where material matters were argued and 

decided, 

Case 1:07-cv-00385-JL Document 7 Filed 08/27/08 Page 15 of 28
16

iv. the May 7, 2001 jury selection during which 

petitioner argued that he was deprived of his

Sixth Amendment right to a fair and impartial

jury, as well as to fair jury selection 

procedures, and

v. the January 9, 2002 sentencing hearing 

wherein Thomas was sentenced to an 

incarcerative period exceeding the 

prosecution’s recommendation after the 

sentencing court considered a flawed 

presentence investigation report, and was 

sentenced to pay restitution for a crime he 

did not commit,

J. filed an inadequate, inaccurate and unauthorized 

appellate brief that did not include a number of 

appellate issues in the case, against petitioner’s

stated wishes,

K. refused to file a motion to reconsider the New 

Hampshire Supreme Court’s decisions denying 

Thomas:

i. relief on direct appeal,

ii. permission to proceed pro se on appeal, and 

iii. permission to file supplemental pro se 

pleadings in his appeal in the New Hampshire 

Supreme Court;

31. Thomas’ rights to due process, confrontation, a fair 

trial, the effective assistance of counsel, and equal 

protection of the laws, as guaranteed by the Fifth, 

Sixth, and Fourteenth Amendments to the federal 

constitution, were violated when the trial court:

A. improperly appointed Attorney Bennett as stand-by 

counsel when Thomas had been granted courtappointed co-counsel,

Case 1:07-cv-00385-JL Document 7 Filed 08/27/08 Page 16 of 28
17

B. failed to provide clear orders regarding the 

duties of stand-by counsel, thereby depriving 

petitioner of the right to a fair trial,

C. failed to assure that Thomas’ right to the 

effective assistance of appointed counsel was 

knowingly, intelligently, and voluntarily waived,

D. refused to allow petitioner to subpoena Attorney 

Bennett as an impeachment and fact witness at 

trial,

E. refused to allow petitioner to subpoena Attorney 

Bennett’s assistant, Becky, as a fact witness at 

trial,

F. refused to allow petitioner to subpoena Attorney 

Weintraub as both a fact and impeachment witness 

at trial,

G. refused to allow petitioner to recall Hudson 

Police Sergeant Alan Semple as a witness to 

introduce impeachment evidence at trial,

H. refused to hold a hearing on the admissibility of 

testimony by witness McIntyre,

I. refused to hold a hearing in regard to Thomas’ 

allegations that the prosecutor suborned perjury 

by proffering the testimony of witness McIntyre at

trial;

J. refused to grant petitioner access to a certified 

appraiser to assess the appraised value of the 

allegedly stolen items in question at trial, 

despite a previous order granting petitioner such 

access, and the necessity of the evidence to 

support petitioner’s defense at trial,

K. denied Thomas a mistrial after the jury was 

allowed to overhear objections heard at sidebar 

regarding inadmissible evidence, 

Case 1:07-cv-00385-JL Document 7 Filed 08/27/08 Page 17 of 28
18

L. effectively denied Thomas the ability to object at

trial by refusing to allow Thomas to argue 

objections outside the hearing of the jury,

M. refused to entertain Thomas’ motions in limine 

filed the day of trial, resulting in arguments 

that included discussions of uncharged criminal 

offenses having to be made in front of the jury,

N. allowed matters to be heard by several different 

judges, contrary to standing orders assigning the 

matter to a single judge,

O. allowed Attorney Weintraub to act as stand-by 

counsel for Thomas during trial, despite the 

existence of an actual conflict of interest in the

representation,

P. sentenced Thomas to pay restitution for crimes 

that he was not convicted of committing, and

Q. sentenced Thomas after consideration of offenses 

he was not convicted of committing;

32. Members of the Hudson Police Department, judges of the 

State Superior and Supreme Courts, appointed defense 

attorneys, and the prosecution conspired to violate 

petitioner’s rights to due process, equal protection, 

the effective assistance of counsel, a fair trial by an

impartial jury, a speedy trial, and the opportunity to 

present a defense, in violation of the Fifth, Sixth, 

and Fourteenth Amendments to the federal constitution;

33. Thomas’ rights to a fair trial, due process, the 

effective assistance of counsel, not to be subjected to

double jeopardy, and to a speedy trial, as guaranteed 

by the Fifth, Sixth, and Fourteenth Amendments to the 

federal constitution were violated when Thomas’ Motion 

for Judgment of Acquittal or, Pursuant to RSA 526:2 et 

seq., a New Trial was denied by the trial court without

a hearing; and

Case 1:07-cv-00385-JL Document 7 Filed 08/27/08 Page 18 of 28
19

34. Thomas’ rights to due process and a fair trial, as 

guaranteed by the Fifth, Sixth, and Fourteenth 

Amendments to the federal constitution, have been 

violated by the actions of New Hampshire Superior Court

and New Hampshire Supreme Court judges conspiring to 

deny and/or delay meaningful review of matters related 

to Thomas’ convictions;

Discussion

I. In Custody Requirement

To petition a federal court for habeas corpus relief from a

state court judgment, the applicant must be “in custody in

violation of the Constitution or laws or treaties of the United

States.” See Garlotte v. Fordice, 515 U.S. 39, 40 (1995) (citing

28 U.S.C. § 2254(a)); Maleng v. Cook, 490 U.S. 488, 490-91

(1989). As fully discussed in the Order issued by District Judge

Laplante on May 14, 2008, Thomas has satisfied the statutory “in

custody” requirement to allow this matter to proceed.

II. Exhaustion Requirement

To be eligible for habeas relief, Thomas must show that he

has exhausted all of his 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. DiPaola, 131 F.3d 259, 261

(1st Cir. 1997) (citing authority to explain the exhaustion

Case 1:07-cv-00385-JL Document 7 Filed 08/27/08 Page 19 of 28
20

principle). 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) (“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). “In order to . . . present the federal

claim fairly and recognizably to the state courts, . . . 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 citations omitted));

Josselyn v. Dennehy, 475 F.3d 1, 3 (1st Cir. 2007) (quoting

Casella v. Clemons, 207 F.3d 18, 20 (1st Cir. 2007)). A

petitioner may fairly present a claim by: (1) citing a provision

of the federal constitution, (2) presenting a federal

constitutional claim in a manner that fairly alerts the state

Case 1:07-cv-00385-JL Document 7 Filed 08/27/08 Page 20 of 28
21

court to the federal nature of the claim, (3) citing federal

constitutional precedents, (4) claiming violation of a right

specifically protected in the federal constitution, or, in some

circumstances, (5) citing to state court decisions that rely on

federal law or articulation of a state claim that is

indistinguishable from one arising under federal law. Clements,

485 F.3d at 162 (citing Gagne v. Fair, 835 F.2d 6, 7 (1st Cir.

1987) and Nadworny v. Fair, 872 F.2d 1093, 1099-1100 (1st Cir.

1989)); cf. Martens v. Shannon, 836 F.2d 715, 717 (1st Cir. 1988)

(finding that simply reciting facts underlying a state claim,

where those facts might support either a state or federal claim,

without more, is inadequate to constitute fair presentation to

the state court of a federal 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, 131 F.3d at 261 (emphasis added). 

Thomas’ petition, in referencing notices of appeal filed in the

New Hampshire Supreme Court (“NHSC”) as the source of his claims,

plainly indicates that he has already raised the instant claims,

Case 1:07-cv-00385-JL Document 7 Filed 08/27/08 Page 21 of 28
22

including the federal nature of those claims, in the NHSC. 

Specifically the claims have been exhausted as follows: the

claims numbered 1-16 above were presented to the NHSC in Thomas’

Pro Se Appellate Brief filed on January 20, 2003; claim 17 was

presented to the NHSC in Thomas’ Pro Se Notice of Appeal

regarding bail pending appeal on August 23, 2002; claims 18-32

were presented to the NHSC in the Petition for a Writ of Habeas

Corpus filed on December 6, 2004; and claims 33 and 34 were

presented to the NHSC in the Notice of Appeal filed on March 17,

2005. Accordingly, I find that Thomas has sufficiently alleged

exhaustion of his habeas claims to allow his cognizable habeas

claims to proceed. In an Order issued simultaneously with this

Report and Recommendation, I will direct that the cognizable

claims raised in the petition be served upon and answered by

Respondent.

III. Claims Not Cognizable in a Federal Habeas Petition

A. Fourth Amendment Claim

In Claim #4, as enumerated in this Report and

Recommendation, Thomas asserts a federal habeas claim based on an

alleged violation of his Fourth Amendment right not to be

subjected to an unreasonable seizure of his person. Where state

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courts have provided an opportunity to a federal habeas

petitioner for full and fair litigation of a Fourth Amendment

claim, the petitioner cannot obtain habeas corpus relief on the

grounds that 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.”). Thomas alleges, in claim #4, that his

Fourth Amendment rights were violated when his statements,

obtained after an allegedly unconstitutional arrest, were used to

secure his conviction at trial. Nothing in Thomas’ petition

indicates that he was denied a full and fair opportunity to

litigate his Fourth Amendment issues in the state courts. To the

contrary, he did litigate the Fourth Amendment arrest issue in

the state Superior and Supreme Courts. Accordingly, I find that

Thomas’ Fourth Amendment claim, identified as claim #4 in this

Report and Recommendation, is not cognizable in a federal habeas

action, and I recommend that it be dismissed.

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B. Claims Challenging Bail

1. Bail Pending Appeal

Thomas raises several claims in his habeas action arising

from the fact that he was denied bail pending appeal. In claims

17, 29(L), and 30(E), Thomas claims that his federal

constitutional rights were violated by the failure of the

Superior Court to grant him bail pending appeal, the failure of

Attorney Rumley to seek bail pending appeal on Thomas’ behalf,

and the failure of Attorney Rothstein to appeal the Superior

Court’s denial of bail pending appeal. 

There is no federal constitutional right to bail pending

appeal. See Garson v. Perlman, 541 F. Supp. 2d 515, 526-27

(E.D.N.Y. 2008) (finding that the Eighth Amendment protection

from excessive bail has not yet been held by the Supreme Court to

be applicable to the states through the Fourteenth Amendment, and

that the Supreme Court has never found that the right to bail, to

the extent it exists under the Eighth Amendment, applies to the

right to bail pending appeal). To the extent that Thomas’

argument that he is entitled to bail pending appeal depends on

state statutory law, such a claim is not cognizable in a federal

habeas action. See Estelle v. McGuire, 502 U.S. 62, 67-68

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(1991); Garson, 541 F. Supp. 2d at 529. Accordingly, I recommend

that Thomas’ claims arising out of challenges to the denial of

bail pending appeal be dismissed from this action.

2. Pretrial Detention

In claim 24(K), as identified above, Thomas claims that his

federal constitutional rights were violated by the failure of

Attorney Igram to adequately prepare for and conduct a pretrial

bail hearing. At that hearing, Thomas’ bail was set at a level

that he claims is excessive, in that it was beyond his financial

reach, resulting in his pretrial detention. 

A federal court may consider a habeas petition filed by a

state prisoner only “on the ground that he is in custody in

violation of the Constitution or laws or treaties of the united

States.” 28 U.S.C. § 2254(a). While a constitutional claim may

exist where a state sets excessive pretrial bail, “it has not

been held that this ground is a constitutional basis for

invalidation of a conviction.” White v. Wilson, 399 F.2d 596,

598 (9th Cir. 1968). Here, Thomas has not demonstrated or

explained how Attorney Igram’s failure to adequately litigate

Thomas’ pretrial bail status affected the constitutionality of

his conviction. I recommend, therefore, that claim 24(K) be

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dismissed as it fails to raise the required constitutional

challenge to Thomas’ conviction. See 28 U.S.C. § 2254(a);

Estelle, 502 U.S. 62, 67 (1991). 

C. Claims Based on Violations of State Law

“[F]ederal habeas corpus relief does not lie for errors of

state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990); see also

Pulley v. Harris, 465 U.S. 37, 41 (1984). “[I]t is not the

province of a federal habeas court to reexamine state-court

determinations on state-law questions. In conducting habeas

review, a federal court is limited to deciding whether a

conviction violated the Constitution, laws, or treaties of the

United States.” Estelle, 502 U.S. at 67-68; see 28 U.S.C. §

2241; Rose v. Hodges, 423 U.S. 19, 21 (1975)(per curiam)). In

claims 14 and 17, Thomas relies on an assertion of his rights

under state law to obtain federal habeas relief, and I recommend

that those, to the extent that they rely on state law as a basis

for federal habeas relief, be dismissed.

D. Moot Claims

District Judge Laplante’s May 14, 2008 Order makes it clear

that the claims challenging the incarcerative portion of Thomas’

sentence have been mooted by his release from the maximum term of

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his sentence on December 4, 2007. I therefore recommend the

dismissal of claims 16, 29(D), (E), (J) and (K), 30(G) and

(I)(v), and 31(O), as moot, to the extent that they constitute

challenges to the incarcerative portion of Thomas’ sentence.

Conclusion

For the reasons stated herein, I recommend dismissal of the

above-numbered claims 4, 17, 24(K), 29(L), 30(E), and 14, to the

extent it relies on state law grounds, and 16, 29(J) and (K),

30(G) and (I)(v), and 31(O), to the extent they raise challenges

to Thomas’ incarcerative sentence, from this petition. In an

Order issued simultaneously with this Report and Recommendation,

I will direct that the remaining claims be served upon and

answered by Respondent.

Any objections to this Report and Recommendation must be

filed within ten (10) 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 Unauthorized Practice of

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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: August 27, 2008

cc: Terry T. Thomas, pro se

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