UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Paul Berry

v. Civil No. 07-cv-178-PB

Larry Blaisdell, Warden, Northern

New Hampshire Correctional Facility

O R D E R

Paul Berry’s petition for a writ of habeas corpus (document

no. 1) is before me for preliminary review. I previously

recommended that two of the four claims raised in Berry’s

petition be dismissed as untimely (document no. 5). That

recommendation was approved by the District Judge on August 11,

2007 (document no. 8). At the time I made my recommendation, I

also ordered Berry to amend his petition to provide additional

information about the two claims that I did not recommend be

dismissed (document no. 6), to provide the requisite information

to determine whether or not they were facially valid. See Rule 4

of the Rules Governing § 2254 Cases in the United States District

Courts (“§ 2254 Rules”) (requiring initial review to determine

whether the petition is facially valid); see also United States

District Court for the District of New Hampshire Local Rule

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1In my Report and Recommendation, I recommend that the

fourth claim, alleging ineffective assistance of counsel for

failing to use potentially exculpatory evidence in the

complainant’s diaries at trial, be dismissed as untimely.

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(“LR”) 4.3(d)(2) (authorizing the Magistrate Judge to

preliminarily review pro se pleadings). Berry has now complied

with that Order. After reviewing Berry’s amended pleadings, for

the reasons fully explained in a Report and Recommendation issued

simultaneously with this Order, I direct that Berry’s claim

alleging that his counsel was ineffective for failing to use his

knowledge of the 1990 and 1994 Division of Children, Youth and

Families investigations to either investigate or impeach the

criminal accusations against Berry.1

The petition shall be served upon the New Hampshire State

Prison, which 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). The

Clerk’s office is directed to serve the New Hampshire Office of

the Attorney General, as provided in the Agreement on Acceptance

of Service copies of this Order, my original Report and

Recommendation (document no. 5) and Order to amend (document no.

6), and Berry’s original petition, motion to hold the petition in

abeyance, and amendments to his original petition (document nos.

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1, 2, 9 & 10). Respondent shall answer or otherwise plead

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). 

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’

attorney(s). 

SO ORDERED. 

_______________________________

James R. Muirhead

United States Magistrate Judge

Date: November 29, 2007

cc: Paul Berry, pro se

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