UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Donald Spinner

v. Civil No. 08-cv-67-JL

Warden, New Hampshire State Prison

O R D E R

Donald Spinner filed his petition for a writ of habeas

corpus (document no. 1) on February 25, 2008. On March 24, 2008,

Spinner was ordered to amend his petition to demonstrate that the

five claims raised therein had been exhausted in the State courts

(document no. 6). On March 31, 2008, Spinner filed a response

(document no. 7) to the Court’s Order which demonstrated that

four of Spinner’s five claims had been exhausted in the State

courts. On August 15, 2008, Spinner was ordered (document no. 9)

to either forego his unexhausted claim, amend his petition to

demonstrate exhaustion of his fifth claim, or move for a stay in

order to return to the State courts to exhaust the fifth claim,

and then return to this Court to amend his petition to

demonstrate exhaustion of all of the claims therein. Spinner

filed a motion to clarify the August 15 Order (document no. 10),

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which was granted on August 25, 2008 (document no. 11). In the

Order granting the motion to clarify, Spinner was again directed

to amend his petition to demonstrate exhaustion of his

unexhausted claim.

Spinner has now filed another motion to amend his petition

(document no. 12). Spinner has not presented any new evidence of

exhaustion, has not elected to forego his unexhausted claim, and

has not requested a stay so that he might to return to the State

courts to exhaust the claim. Instead, Spinner asserts his belief

that the claim is exhausted because a “reasonable jurist”

reviewing the matter should have been aware of the federal nature

of his claim.

I find that this assertion is insufficient to demonstrate

exhaustion, and that, in fact, Spinner has not demonstrated

exhaustion of his claim numbered 4 in the March 24 Order to

amend. This claim, unlike his other claims, challenges an

evidentiary ruling made by the judge presiding over the hearing

on Spinner’s motion for a new trial. The other claims raised in

the federal petition assert deprivations of Spinner’s federal

constitutional rights to the effective assistance of counsel at

trial and his right to a fair trial. Nothing in any of the

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pleadings filed by Spinner indicates that Spinner has ever

presented a federal basis for his claim that witnesses were

improperly excluded from his motion for a new trial hearing to

any State court for consideration prior to filing his petition

here. Accordingly, I find that Spinner has failed to demonstrate

exhaustion of this claim, despite being given numerous

opportunities to do so.

Conclusion

Spinner has two options. Spinner may forego his unexhausted

claim, in writing, within ten days of the date of this Order. 

Upon receiving notice that Spinner has foregone his unexhausted

claim, I will promptly direct the Respondent to answer his

petition. If Spinner opts not to forego his unexhausted claim, I

will dismiss the entire petition, as a petition containing both

exhausted and unexhausted claims must be dismissed. 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)); Adelson v.

DiPaola, 131 F.3d 259, 261 (1st Cir. 1997) (“[A] federal court

will not entertain an application for habeas relief unless the

petitioner first has fully exhausted his state remedies in 

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respect to each and every claim contained within the

application.”).

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: October 23, 2008

cc: Donald Spinner, pro se

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