UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Sharrod Bennett

v. Civil No. 07-cv-107-PB

William Wrenn, Commissioner,

New Hampshire Department of Corrections

O R D E R

Currently before me for preliminary review is Sharrod

Bennett’s petition for a writ of habeas corpus, filed pursuant to

28 U.S.C. § 2254. See Rule 4 of the Rules Governing § 2254

Proceedings (requiring initial review to determine whether the

petition is facially valid and may be served). As explained

below, Bennett has not demonstrated that he has exhausted his

available and effective State remedies as required by statute. 

See 28 U.S.C. § 2254(b)(1) (providing that the writ “shall not be

granted” unless petitioner has exhausted all available or

effective State remedies). I therefore order that Bennett amend

his petition to demonstrate exhaustion consistent with this

Order. 

Case 1:07-cv-00107-JL Document 3 Filed 05/01/07 Page 1 of 13
2

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 and

to prepare a report and recommendation determining whether the

action or any portion thereof should be dismissed because:

(I) the allegation of poverty is untrue, the 

action is frivolous, malicious, or fails to state 

a claim upon which relief may be granted, or seeks 

monetary relief from a defendant who is immune 

from such relief under 28 U.S.C. § 1915A(b); or

(ii) it fails to establish subject matter 

jurisdiction under Fed. R. Civ. P. 12(b)(1).

United States District Court for the District of New Hampshire

Local Rule 4.3(d)(2). In conducting the preliminary review, the

Court construes pro se pleadings liberally. See Ayala Serrano v.

Lebron Gonzales, 909 F.2d 8, 15 (1st Cir. 1990) (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 

Case 1:07-cv-00107-JL Document 3 Filed 05/01/07 Page 2 of 13
3

v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997), cert. denied,

Ahmed v. Greenwood, 522 U.S. 1148 (1998).

At this preliminary stage of review, all factual assertions

made by the plaintiff and inferences reasonably drawn therefrom

must be accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3

(1st Cir. 1996) (stating the “failure to state a claim” standard

of review and 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. Dir. of C.I.A., 843

F.2d 46, 49 (1st Cir. 1988).

Background 

Sharrod Bennett entered a guilty plea to felonious sexual

assault on June 1, 2004 in the New Hampshire Superior Court. 

Pursuant to a negotiated disposition in the case, Bennett was

sentenced to 2 - 5 years in the New Hampshire State Prison. All

of the sentence, except for the 322 days he had served prior to

his plea, was suspended for a period of ten years. During that

ten year window, the State would be able to move the sentencing

court to impose the 2 - 5 year suspended sentence if Bennett

Case 1:07-cv-00107-JL Document 3 Filed 05/01/07 Page 3 of 13
4

violated the following terms of his sentence: no contact with the

victim of his offense, participation in counseling as recommended

by his probation officer, and good behavior. Bennett was also

placed on probation for a period of two years to commence

immediately upon his sentencing. Bennett’s sentencing mittimus

explicitly permitted “revocation of probation and imposition of

any sentence within the legal limits for the underlying offense”

upon a finding that Bennett had committed a “[v]iolation of

probation or any of the terms of [the] sentence.” The State also

declined to prosecute a second more serious indictment against

Bennett in consideration for his guilty plea to felonious sexual

assault.

On February 14, 2005, Bennett’s probation was revoked

because, according to Bennett, he failed to apply for seven jobs

per day as directed by his probation officer. Bennett pleaded

chargeable to the revocation, and was sentenced to serve 3 1⁄2 - 7

years in prison, with credit given to him for the 354 days he had

already served, the maximum period of incarceration allowed by

statute for felonious sexual assault. See N.H. Rev. Stat. Ann. 

Case 1:07-cv-00107-JL Document 3 Filed 05/01/07 Page 4 of 13
1Bennett did receive credit for the 354 days he had already

served in jail prior to his February 14, 2005 sentencing.

5

651:2(II) (providing for maximum 3 1⁄2 - 7 year sentence for Class

B felony).1

Bennett claims that at the time he agreed to the original

negotiated plea in this case, he did so because his lawyer came

to see him at the jail where Bennett was detained pretrial, and

told Bennett that if he signed the plea agreement, that he could

go home in a couple of days. Bennett states that, despite his

signature on the relevant paperwork, he never understood the

consequences of his plea or the waiver of his constitutional

rights that occurred upon his plea. Bennett attributes his lack

of understanding to the fact that he functions intellectually at

a fourth grade level in math and spelling, a fifth grade level in

reading, and a second grade level in language. Bennett asserts

that despite his limited intellectual abilities, his attorney

never moved the court to determine whether Bennett was competent

to stand trial or enter a plea.

Bennett filed a petition for a writ of habeas corpus in the

State Superior Court which was denied. Bennett filed an

unsuccessful motion to reconsider the denial. Bennett then filed 

Case 1:07-cv-00107-JL Document 3 Filed 05/01/07 Page 5 of 13
2Bennett has attached a copy of the motion to reconsider and

the declination notice from the New Hampshire Superior Court to

his petition.

6

a notice of appeal in the New Hampshire Supreme Court. The

notice of appeal was declined.2

Discussion

1. Claims

Bennett does not specifically identify and enumerate all of

the claims he attempts to raise in his petition. Liberally

construing the complaint, however, I find that Bennett seeks to

raise the following claims:

1. The imposition of a 3 1⁄2 - 7 year sentence Bennett 

received upon his probation revocation violated the 

terms of the negotiated plea agreement, which limited 

the imposition of a future sentence to 2 - 5 years, in 

violation of his Fourteenth Amendment due process 

rights;

2. The plea violated Bennett’s Fourteenth Amendment due 

process rights and his Fifth and Sixth Amendment trial 

rights, as the plea was not knowingly, intelligently, 

and voluntarily entered because Bennett did not, at the

time of his guilty plea and sentencing, fully 

understand the terms of the sentence or the rights he 

was waiving by pleading guilty; 

3. The imposition of a 3 1⁄2 - 7 year sentence, after Bennet

was previously sentenced to a 2 - 5 year suspended 

sentence, amounts to a violation of the Fifth Amendment

guarantee against double jeopardy, which protects 

Bennett from receiving multiple punishments for the 

same offense, or from having his sentence increased 

after it was imposed;

Case 1:07-cv-00107-JL Document 3 Filed 05/01/07 Page 6 of 13
3While I decline to comment on the merits of the claims at

this juncture, the issues raised in petitioner’s double jeopardy

and due process claims, including the federal constitutional

arguments that arise out of those claims, have previously been

addressed by the New Hampshire Supreme Court in State v. White,

131 N.H. 555, 557 (1989) (When probation is imposed, trial

court’s sentencing function is not ended, and court retains

jurisdiction to impose additional term of incarceration up to the

balance of the maximum which could have been imposed for offense

by statute, without violating State or federal double jeopardy or

due process rights). I understand Bennett’s argument here to

allege that the holding of White, if applied to the facts of his

case, would be unconstitutional as it contradicts Bennett’s 

asserted rights as decided by the United States Supreme Court.

7

4. Bennett received ineffective assistance of counsel, in 

violation of his Sixth Amendment right, in that his 

attorney failed to raise his competency in the trial 

court and failed to adequately explain to Bennett the 

consequences of his guilty plea or the terms of his 

sentence.

 

Bennett asserts that he is entitled to a writ of habeas corpus

because the constitutional violations alleged render his

conviction and sentence illegal.3

2. Custody and Exhaustion

To be eligible for habeas relief, Bennett 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 processes. 

See 28 U.S.C. § 2254(a) & (b); see also Adelson v. DiPaolo, 131

F.3d 259, 261 (1st Cir. 1997) (citing authority to explain the

Case 1:07-cv-00107-JL Document 3 Filed 05/01/07 Page 7 of 13
8

exhaustion principle). Bennett satisfies the first requirement,

as he is currently incarcerated. However, the petition does not

demonstrate satisfaction of the exhaustion requirement.

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), cert. denied, Maloney v Lanigan, 488 U.S. 1007

(1989) (“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).

Bennett has failed to present sufficient information or

documentation to this court to demonstrate that each of the

claims raised here, including the federal nature of the claims,

was presented to the State appellate court. See Smith v. Digmon,

434 U.S. 332, 333 (1978) (listing documents which would enable a

federal court to determine whether the grounds supporting the

Case 1:07-cv-00107-JL Document 3 Filed 05/01/07 Page 8 of 13
9

habeas petition had been presented for review in the State

courts). Bennett has submitted a copy of a motion for

reconsideration that he filed in the Superior Court. That motion

clearly sets out Bennett’s double jeopardy claim, including the

federal constitutional nature of that claim. However, it is not

clear whether that federal claim has been presented to the New

Hampshire Supreme Court. Additionally, I cannot tell what other

claims, if any, were raised in the State Superior and Supreme

Courts because Bennett has not yet filed State pleadings that

would demonstrate exhaustion of the claims made here. These

documents would include, but not necessarily be limited to,

habeas petitions, motions, notices of appeal, briefs, any

attachments and appendices made to any pleading, notice or brief,

or court orders that would demonstrate whether or not the claims

raised here, including the federal nature of the claims, were

specifically presented to the New Hampshire Supreme Court.

3. Mixed Petition

“[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

Case 1:07-cv-00107-JL Document 3 Filed 05/01/07 Page 9 of 13
10

application.” Adelson v. DiPaola, 131 F.3d 259, 261 (1st Cir.

1997) (emphasis added). If Bennett’s petition contains both

exhausted and unexhausted claims, and Bennett were to press his

petition without first exhausting all of the claims contained

therein, I would have to recommend dismissal of the entire

petition. See Nowaczyk v. Warden, N.H. State Prison, 299 F.3d

69, 75 (1st Cir. 2002) (citing Rose v. Lundy, 455 U.S. 509, 513-

21 (1982)). If the petition contains both exhausted and

unexhausted claims, the proper course of action would be to stay

this petition pending the exhaustion of all of the claims and

compliance with this Order. See Rhines v. Weber, 544 U.S. 269,

278 (2005) (a district court should stay a mixed petition

containing both exhausted and unexhausted claims if the

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.”). Accordingly, Bennett must amend his

petition to demonstrate exhaustion of his claims if they have, in

fact, been exhausted, or must request a stay in order to return

to the State courts to complete exhaustion.

Case 1:07-cv-00107-JL Document 3 Filed 05/01/07 Page 10 of 13
11

4. Foregoing Unexhausted Claims

It should be noted that Bennett has the option of foregoing

his unexhausted claims, if any of his claims are in fact

unexhausted, and requesting that this Court proceed promptly with

consideration of only his exhausted claim or claims. Bennett

should be advised that if he does forego any of his claims, he

will likely waive ever having the foregone claims considered by

this Court due to the prohibition against second or successive

federal habeas petitions. See 28 U.S.C. § 2244; Pratt v. United

States, 129 F.3d 54, 56-58 (1st Cir. 1997), cert. denied, 523

U.S. 1123 (1998).

Conclusion

Bennett is ordered to amend his petition within thirty days

of the date of this Order to identify, with specificity the

claims, including the federal nature of the claims, that he

intends to raise in this Court and to demonstrate exhaustion of

those claims. Bennett is instructed to establish that he has

exhausted his State remedies with respect to each of the claims

presented in his petition or that he is excused from the

exhaustion requirement. To make this showing, Bennett is

instructed to provide this court with copies of documents filed

Case 1:07-cv-00107-JL Document 3 Filed 05/01/07 Page 11 of 13
12

in the Superior Courts and the New Hampshire Supreme Court

showing that each of the claims, including the federal nature of

each claim, has been raised and exhausted below. Bennett should

also provide this Court with copies of any orders or opinions

issued by the State courts relative to these matters that have

not previously been submitted to this Court.

If the claims that Bennett seeks to pursue here are not

exhausted, Bennett must notify the Court within thirty days of

the date of this Order as to how he intends to proceed in this

matter. Bennett must either request a stay so that he may return

to the State courts to complete exhaustion, or affirmatively

forego his unexhausted claims if the petition is currently mixed. 

If Bennett chooses to take further action in the State courts,

once this case is stayed, Bennett must commence his State court

action within thirty days of the date of this Order.

If Bennett elects to pursue further State court action,

Bennett is directed to notify this Court of the status of the

State court proceedings every ninety days. When the claims are

fully exhausted in the State courts, Bennett must, within thirty

days of receiving the final State court decision, notify this 

Case 1:07-cv-00107-JL Document 3 Filed 05/01/07 Page 12 of 13
4If this petition were to be dismissed for failing to

demonstrate exhaustion, the dismissal would be without prejudice

as it would be procedural and not based on the merits of

Bennett’s claims. See Slack v. McDaniel, 529 U.S. 473 (2000).

13

Court that the State court litigation is concluded and provide

this Court with the documentation of exhaustion at that time.

Should Bennett fail to make a showing that he has exhausted

his State court remedies for each of the grounds presented or

otherwise fails to comply with this Order, the petition may be 

dismissed for failure to demonstrate exhaustion.4 See 28 U.S.C.

§ 2254(b).

SO ORDERED.

________________________________

James R. Muirhead

United States Magistrate Judge

Date: April 30, 2007

cc: Sharrod Bennett, pro se

Case 1:07-cv-00107-JL Document 3 Filed 05/01/07 Page 13 of 13