UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

John Silva

v. Civil No. 08-cv-009-JL

Richard Gerry, Warden,

New Hampshire State Prison

O R D E R

Before the Court is John Silva’s petition for a writ of

habeas corpus. The matter is before me for preliminary review to

determine whether or not the claims raised in the petition are

facially valid and may proceed. See Rule 4 of the Rules

Governing Section 2254 cases in the United States District Courts

(“§ 2254 Rules”); United States District Court District of New

Hampshire Local Rule (“LR”) 4.3(d)(2) (authorizing magistrate

judge to preliminarily review pro se prisoner filings pursuant to

28 U.S.C. § 1915A).

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. LR

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

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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 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 January 26, 2005, Silva was convicted, after a jury

trial, of felony sexual offenses. On April 1, 2005, Silva was

sentenced to 10 - 20 years in the New Hampshire State Prison. He

is presently serving that sentence. On April 27, 2005, Silva

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filed a motion to clarify his sentence, which was granted on May

27, 2005.

Silva alleges in his petition that, despite his desire to

appeal his conviction, his trial counsel, who had been retained

by Silva, did not file a notice of appeal and did not advise

Silva of his right to seek court-appointed appellate counsel. 

Instead, Silva’s attorney advised Silva’s family members, who had

promptly inquired regarding Silva’s appellate rights upon his

conviction, that an appeal would likely be futile, and could even

be harmful, and that it would cost $15,000 to file the appeal

documents. Silva’s family members, knowing that Silva wished to

pursue an appeal, attempted to raise the money for an appeal but

were unable to do so. As a result, Silva’s attorney took no

further action on the case and no direct appeal was filed.

Upon learning from other prison inmates that he had a right

to court-appointed appellate counsel, Silva filed a motion in the

New Hampshire Supreme Court (“NHSC”) on December 8, 2005 seeking

permission to file a late notice of appeal. The State of New

Hampshire objected to the motion on the grounds that the proper

relief to pursue in Silva’s situation was a new trial or a writ

of habeas corpus in the Superior Court. On May 17, 2006, the

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NHSC denied Silva’s motion without prejudice to Silva seeking

appropriate relief in the Superior Court. Believing, based on

that order, that he had filed his motion in the wrong court,

Silva immediately filed a motion to file an untimely appeal and a

new trial in the Superior Court. On February 9, 2007, the

Superior Court granted Silva’s motion to file an untimely notice

of appeal and directed Silva to file his notice of appeal in the

NHSC by March 11, 2007, but did not rule on Silva’s new trial

motion. 

On February 23, 2007, Silva filed a motion in the NHSC,

through new counsel, seeking to extend the deadline for filing a

notice of appeal so that a transcript of the trial could be

obtained, as Silva’s attorney was unaware at that time what

issues had been preserved for appeal. The State of New Hampshire

objected, raising as grounds that the Superior Court had no

authority to grant Silva’s motion to file an untimely notice of

appeal, and that only the NHSC could grant that relief. The

State’s objection reiterated that the appropriate relief for

Silva to seek would be collateral review of the conviction

through a new trial motion or petition for a writ of habeas

corpus filed in the Superior Court. On March 14, 2007, the NHSC

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1The claims raised by Silva, as identified here, shall be

considered to be the claims raised in this petition for all

purposes. If Silva objects to this identification of his claims,

he must do so by properly moving to amend his petition.

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denied Silva’s motion on the grounds raised in the State’s

objection. The NHSC declined Silva’s notice of appeal on August

16, 2007. Silva filed a motion to reconsider on August 27, 2007. 

The motion to reconsider was denied on October 1, 2007.

Silva now files this petition for a writ of habeas corpus,

alleging that his conviction and sentence violate his federal

constitutional rights in the following ways:1

1. Silva received either ineffective assistance of 

counsel, or was entirely deprived of counsel, during 

his appeal, a critical stage of his criminal 

proceedings. This violated his Sixth and Fourteenth 

Amendment rights to counsel; and

2. Silva was denied his right to appeal his criminal 

conviction, in violation of his Due Process rights, 

protected by the Fourteenth Amendment, in that the 

trial court denied him a new trial on the basis of the 

deprivation of his right to counsel.

To be eligible for federal habeas relief, Silva 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

process. See 28 U.S.C. § 2254(a) & (b); see Duncan v. Kennedy,

513 U.S. 364, 365 (1995) (per curiam). Silva satisfies the first

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requirement as he is currently serving his prison sentence and is

thus in custody. 

The Court further finds that Silva satisfies the second

requirement that state court remedies be exhausted. 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 federal constitutional claims. See Lanigan

v.Maloney, 853 F.2d 40, 42 (1st Cir. 1988), cert. denied, 488

U.S. 1007 (1989) (“habeas corpus petitioner must have presented

the substance of his federal constitutional claim to the state

appellate courts so that the state had the first chance to

correct the claimed constitutional error”); see also Baldwin v.

Reese, 541 U.S. 27 (2004) (citing Duncan, 513 U.S. at 365-66

(requiring petitioner to “fairly present” his claim in the

appropriate state courts, including a state supreme court with

powers of discretionary review, thereby alerting that court to

the federal nature of the claim)). In order to fairly present

his claim in the state courts, Silva need only provide the state

courts with one full opportunity to pass upon the federal

question presented. O’Sullivan v. Boerckel, 526 U.S. 838, 844-45

(1999). I find that Silva, by raising his claims, including the

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federal nature of the claims, in the NHSC, has fairly presented

the issue to that court for consideration. Silva has, therefore,

exhausted the claim in the state courts. 

Accordingly, the Court orders that the petition be served

upon Respondent, who 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). 

Service shall be completed by mailing to the New Hampshire Office

of the Attorney General, which is the prison’s attorney, by

certified mail, return receipt requested, copies of this Order

and the habeas petition (document no. 1) and attachments thereto. 

Respondent shall answer or 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, 

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after the petition, shall be served on all parties. Such service

is to be made by mailing the material to the parties’ attorneys. 

SO ORDERED. 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: April 1, 2008

cc: Michael J. Sheehan, Esq.

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