UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Nicholaus Samora

v. Civil No. 07-cv-189-SM

Larry Blaisdell, Warden,

Northern New Hampshire

Correctional Facility

O R D E R

 Currently before me for preliminary review is Nicholaus

Samora’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, Samora 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 Samora to amend his

petition to demonstrate exhaustion of his claims. 

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.

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LR 4.3(d)(2). In conducting the preliminary review, the 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 an 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 March 21, 2006, Nicholaus Samora plead guilty to one

count of attempted felonious sexual assault and one count of

engaging in a prohibited use of computer services. Both

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indictments arose out of the same incident in which Samora

communicated online with an undercover police officer posing as a

fourteen year old female named “Michelle,” and, using online

communication, arranged to meet “Michelle” at a McDonald’s in

Exeter, New Hampshire in order to engage in oral sex. Samora was

arrested when he arrived at the McDonald’s at the pre-arranged

time and date. 

Samora was charged by two indictments returned by the grand

jury. Samora alleges that the indictment alleging prohibited use

of computer services was later replaced with an indictment that

included facts that did not appear in the original indictment. 

Samora claims that the replacement indictment was not presented

to the grand jury.

Upon Samora’s guilty plea to both charges, he was sentenced

to one to three years in the state prison on the attempted

felonious sexual assault charge. Samora also received an

additional suspended prison sentence on the charge that he used

computer services in a prohibited manner. At some point after

his convictions and sentences were entered, and while he was

serving his committed sentence, Samora came to believe that being

conviction and sentence on both of the indictments charged had

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created a violation of his state and federal constitutional

rights against double jeopardy, as the dual convictions resulted

in two convictions and two sentences for the same conduct. 

On January 31, 2007, Samora filed a motion to vacate his

attempted felonious sexual assault conviction in the state

Superior Court, raising both state and federal double jeopardy

arguments. On April 10, 2007, the Superior Court denied his

motion, but, finding that the double jeopardy argument had merit,

dismissed the prohibited use of computer services indictment sua

sponte, and vacated the suspended prison sentence. Samora

appealed the denial of his motion and the Superior Court’s sua

sponte decision to the New Hampshire Supreme Court (“NHSC”) on

May 8, 2007. The NHSC declined his appeal on June 7, 2007. This

petition followed.

In addition to the federal double jeopardy claim, Samora

also includes in the instant petition two additional claims. 

First, Samora claims that his counsel at the time of his guilty

plea was ineffective as he failed to advise Samora of the double

jeopardy implications of a conviction on both charges. Second,

Samora alleges that he was denied his right to be indicted by a

grand jury because, when the prosecutor replaced the prohibited

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use of computer services indictment, the new indictment included

facts that did not appear on the original indictment, and had not

been presented to the grand jury. 

Samora’s second and third claims before this Court, alleging

ineffective assistance of counsel and an improper indictment,

were mentioned briefly in his Superior Court motion to vacate. 

The Superior Court found the indictment to be valid and did not,

in its order, address Samora’s assertion that his attorney had

not advised him of the double jeopardy implications of his plea. 

Neither the unpresented indictment claim nor the ineffective

assistance of counsel claim were included in the notice of appeal

Samora filed in the New Hampshire Supreme Court.

Discussion

1. Custody and Exhaustion

To be eligible for habeas relief, Samora 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

exhaustion principle). Samora has satisfied the first

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requirement, as he is currently incarcerated. However, Samora’s

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) (“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).

Samora 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

habeas petition had been presented for review in the State

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courts). Samora has submitted a copy of his Superior Court

motion to vacate, the Superior Court’s order on that motion, his

notice of appeal to the NHSC and the NHSC’s notice that the

appeal had been declined. 

Both Samora’s Superior Court motion and his notice of appeal

clearly set out the double jeopardy claim, including the federal

constitutional nature of that claim. However, while the Superior

Court motion to vacate mentions the ineffective assistance and

inadequate indictment claims, the motion does not present the

Superior Court with the federal constitutional nature of the

claims. The notice of appeal filed in the NHSC does not include

the ineffective assistance and inadequate indictment claims at

all.

Samora has not presented 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 habeas petition had

been presented for review in the State courts). 

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2. 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

application.” Adelson, 131 F.3d at 261 (emphasis added). If

Samora’s petition contains both exhausted and unexhausted claims,

as it appears that it does, and Samora 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)). Where

a petition contains both exhausted and unexhausted claims, the

proper course of action is to stay the petition pending the

exhaustion of all of the claims contained therein. 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, to press the claims raised

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in this Court, Samora must amend his petition to demonstrate

exhaustion of his claims alleging ineffective assistance of

counsel and an improper indictment, if they have, in fact, been

exhausted, or must request a stay in order to return to the State

courts to complete exhaustion.

3. Foregoing Unexhausted Claims

It should be noted that Samora has the option of foregoing

any of his claims that are presently unexhausted, and requesting

that this Court proceed promptly with consideration of only his

exhausted claim. Samora should be advised, however, 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).

Conclusion

If all of the claims raised in the petition have in fact

been exhausted, Samora is ordered to amend his petition within

thirty days of the date of this Order to demonstrate exhaustion

of his ineffective assistance of counsel and inadequate

indictment claims. Samora is instructed that in order to

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demonstrate exhaustion, he must establish that he has exhausted

his State remedies with respect to each of the claims presented

in his petition, including the federal nature of the claim, or

that he is excused from the exhaustion requirement. To make this

showing, Samora is instructed to provide this court with copies

of documents filed 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. Samora 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 Samora seeks to pursue here have not yet

been exhausted in the State courts, Samora must notify the Court

within thirty days of the date of this Order as to how he intends

to proceed in this matter. Samora must either request a stay so

that he may return to the State courts to complete exhaustion, or

affirmatively forego the unexhausted claims in his mixed

petition. 

If Samora chooses to take further action in the State

courts, once this case is stayed, Samora must commence his State

court action within thirty days of the date of this Order. If

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1If 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 Samora’s

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

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Samora elects to pursue further State court action, he is

directed to notify this Court in writing of the status of the

State court proceedings every ninety days. When the claims are

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

days of receiving the final State court decision, notify this

Court that the State court litigation is concluded and provide

this Court with the documentation of exhaustion at that time.

Should Samora 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.1 See 28 U.S.C.

§ 2254(b).

SO ORDERED.

________________________________

James R. Muirhead

United States Magistrate Judge

Date: July 30, 2007

cc: Nicholaus Samora, pro se

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