UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Joshua H. White

v. Civil No. 08-cv-121-JL

Kimberly Marsh, Director,

New Hampshire State Prison

Sex Offender Program, et al.

O R D E R

Before the Court is Joshua White’s petition for a writ of

habeas corpus (document no. 1). 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; 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

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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 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 August 15, 2005, Joshua White pleaded guilty pursuant to

a plea agreement, and was sentenced to 3-6 years in prison on a

theft charge, and a concurrent 3 1⁄2 - 7 year sentence for

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felonious sexual assault, as well as additional consecutive

suspended prison sentences. White alleges that he decided to

plead guilty on the advice of his attorney, who told him that,

without a plea agreement, he was facing more than forty-two years

in prison. Under the terms of the sentence imposed pursuant to

the plea agreement, White’s minimum parole date is September 6,

2008, and his maximum sentence expiration date is March 20, 2012.

On December 22, 2005, after being evaluated for

rehabilitative programming in the prison, Ruth Kevghas, a

therapist in the prison’s sex offender treatment program (“SOP”),

recommended that White participate in the prison’s 18-month long

intensive sex offender treatment program. As grounds for this

recommendation, Kevghas cited White’s admission to his offense,

minimization of his criminal conduct by blaming his intoxication

at the time of the offense, extensive drug and alcohol history,

uncertainty about prior uncharged sexual misconduct, childhood

physical and sexual abuse, an unstable family life, and his

criminal history. Additionally, Kevghas referred to White’s

mental health assessment, which noted depressive symptoms,

including, among others, self-deprecation and occasional suicidal

ideation, and a history of psychological hospitalizations. 

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1White submits, with his petition, documentation indicating

that DNA samples taken from the underwear, bra, shorts, and shirt

of the victim in his case did not contain seminal material. 

Seminal material was found on the victim’s bedspread, but

laboratory testing revealed that the DNA in that sample did not

come from White. White alleges that although this information

was given to his attorney prior to his guilty plea, he was

unaware of it until after he pleaded guilty and started serving

his prison sentence. 

4

Kevghas’ recommendation that White complete the intensive

treatment program was approved by Dan Millis, Acting Director of

the SOP, on January 10, 2006.

On July 9, 2007, White filed a written complaint with SOP

Director Kimberly Marsh, explaining that he disagreed with

Kevghas’ December 2005 recommendation for treatment. White

requested to be re-evaluated and considered for a less intensive

6-month treatment program on two grounds: (1) that Kevghas’

report contained inaccurate statements, and (2) the fact that,

during his incarceration, White received documentation of DNA

evidence in his criminal case that, he asserts, tends to

demonstrate that he did not commit the offense charged.1 White

expressed his concern that he was within seven months of his

minimum parole date, and would therefore like to be placed in a

program that could be finished in six months.

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On July 10, 2007, White submitted an Inmate Request slip to

Marsh reiterating his complaints about Kevghas’ report and her

treatment recommendation. On July 11, 2007, Marsh responded to

White, indicating that Kevghas’ treatment recommendation was

based on many factors, including White’s tendency to minimize and

deflect responsibility for his offense. Marsh pointed to White’s

accusations of inaccuracies in Kevghas’ report as further

evidence of minimization and deflection, and indicated that such

behavior only served to reinforce Kevghas’ conclusion that White

is in need of the eighteen month intensive treatment program.

White now requests that this Court: (a) order White’s

release on his minimum parole date due to the DNA evidence, (b)

order Kevghas’ report to be withdrawn, (c) order that White be

re-evaluated for a six month treatment program, and (d) order

White’s placement in a six month treatment program, rather than

the eighteen month program that has been recommended for him.

Discussion

I. Claims Seeking to Challenge the Prison’s Report and 

Treatment Recommendations

To the extent that White challenges the prison’s treatment

recommendations or evaluations, he seeks to assert claims

challenging the conditions of his confinement. Such claims must

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be brought by filing a separate civil rights action under 42

U.S.C. § 1983. These claims are not properly raised in a habeas

petition, as habeas relief is only available to challenge the

fact or length of an inmate’s confinement. Preiser v. Rodriquez,

411 U.S. 475, 489-99 (1973); Wolff v. McDonnell, 418 U.S. 539,

554 (1974). Here, the propriety of a report or treatment

recommendation, while it may have bearing on White’s chances of

obtaining parole, and therefore on the length of his actual

confinement, is not a challenge to his conviction or sentence. 

Accordingly, I will not consider the claims challenging the

prison’s production of a report and recommendations for treatment

as part of this habeas action. White is free to refile the

claims in a separate § 1983 action.

II. Claims Seeking Release from Detention

White requests that this Court order his immediate release

from custody based on DNA reports which, he alleges, prove that

he is not the person who committed the felonious sexual assault

to which he pleaded guilty. This appears to be a challenge to

the validity of his guilty plea, and thus a challenge to his

confinement pursuant to that plea. White states specifically,

however, that he “is not asking this court to withdraw this

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2Section 2254(a) states:

The Supreme Court, a Justice thereof, a circuit 

judge, or a district court shall entertain an 

application for a writ of habeas corpus in behalf 

of a person in custody pursuant to the judgment of 

a State court only on the ground that he is in 

custody in violation of the Constitution or laws 

or treaties of the United States.

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plea.” Instead, he asks this Court to simply find that he should

be released based on DNA evidence showing that the wrong person

was convicted of his incarcerating offense.

Whether or not White intends it as such, this is, in fact, a

challenge to the validity of his criminal conviction and sentence

for felonious sexual assault. Such a claim is cognizable in a

federal habeas action. See 28 U.S.C. § 2254(a).2 Here, White

claims that he pleaded guilty to an offense he was not actually

guilty of, and that he did so because, at the time of his plea,

he was unaware of exculpatory evidence that tends to prove his

innocence. Construed liberally, I find that White’s petition can

be read to allege claims of actual innocence, ineffective

assistance of counsel in violation of the Sixth and Fourteenth

Amendments, and a plea that was not knowingly and voluntarily

entered into by petitioner, in violation of the Sixth and

Fourteenth Amendments. All of these potential claims are

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3I find that White’s current petition adequately alleges

that he is in custody pursuant to the challenged conviction.

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constitutional challenges to White’s conviction and sentence,

and, therefore, to his resulting incarceration. At this time,

however, White has not sufficiently clarified what claims he

intends to raise in this petition. As a preliminary matter, I

order White to amend his petition to state, with specificity,

what claims he intends to raise, including the federal nature of

those claims.

Further, as required by the federal habeas statute, White

must demonstrate that he is both in custody pursuant to the

challenged conviction, and that he has fully exhausted his state

remedies by providing the state courts with the opportunity to

correct the constitutional errors alleged. Absent such a

showing, the petition fails, on its face, to state a valid claim

upon which relief might be granted. Accordingly, I will give

White the opportunity to amend his petition, not only to clarify

his claims, but to demonstrate that he has fully exhausted each

of those claims in the state courts.3

A. Exhaustion

To be eligible for habeas relief, White must show that he

has exhausted all of his state court remedies, or that he is

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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. DiPaola, 131 F.3d 259, 261

(1st Cir. 1997) (citing authority to explain the exhaustion

principle). 

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). “In order to exhaust a claim, the

petitioner must ‘present the federal claim fairly and

recognizably’ to the state courts, meaning that he ‘must show

that he tendered his federal claim in such a way as to make it

probable that a reasonable jurist would have been alerted to the

existence of the federal question.’” Clements v. Maloney, 485

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F.3d 158, 162 (1st Cir. 2007) (quoting Casella v. Clemons, 207

F.3d 18, 20 (1st Cir. 2000) (internal citations omitted)). 

“[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). 

In order to satisfy the requirement to “fairly present” his

federal claim to the State courts, a petitioner must have

presented the claim to the State courts “in such a way that ‘a

reasonable jurist’ would have recognized ‘the existence of the

federal question.’” Josselyn v. Dennehy, 475 F.3d 1, 3 (1st Cir.

2007) (quoting Casella, 207 F.3d at 20). A petitioner may fairly

present a claim by: (1) citing a provision of the federal

constitution, (2) presenting a federal constitutional claim in a

manner that fairly alerts the State court to the federal nature

of the claim, (3) citing federal constitutional precedents, (4)

claiming violation of a right specifically protected in the

federal constitution, or, in some circumstances, (5) citing to

State court decisions that rely on federal law or articulation of

a state claim that is indistinguishable from one arising under

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federal law. Clements, 485 F.3d at 162 (citing Gagne v. Fair,

835 F.2d 6, 7 (1st Cir. 1987) and Nadworny v. Fair, 872 F.2d

1093, 1099-1100 (1st Cir. 1989)); cf. Martens v. Shannon, 836

F.2d 715, 717 (1st Cir. 1988) (finding that simply reciting facts

underlying a State claim, where those facts might support either

a state or federal claim, without more, is clearly inadequate to

constitute fair presentation of a federal claim to State court).

B. Stay

As White does not appear to have exhausted his claims,

including the federal nature of those claims, in the State

courts, I will allow him the opportunity to return to the State

court to exhaust those claims. If White notifies this Court that

he intends to return to the State courts to exhaust his federal

claims, I will direct that this matter be stayed in order to

allow White to return to the State courts to complete exhaustion

of his claims.

Conclusion

If White intends to return to the State courts to exhaust

his unexhausted claims, he is directed to so notify this Court,

and also to commence his State court proceedings, within thirty

days of the date of this Order. Upon receipt of such a notice,

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this matter will be stayed. If the matter is stayed, White must

notify this Court, in writing, of the status of the State court

proceedings every ninety days.

When all of White’s claims have been exhausted, he is

directed to so notify this Court, and to amend his petition to

demonstrate exhaustion of his claims within thirty days of the

date that exhaustion is complete. To satisfy this Order, White

must provide this Court with complete copies of documents filed

in the New Hampshire Superior Courts and the New Hampshire

Supreme Court, showing that each of the claims, including the

federal nature of those claims, has been raised and exhausted. 

White should also provide this Court with complete copies of any

orders or opinions issued by the State courts relative to these

matters.

Should White fail to amend his complaint to demonstrate that

he has exhausted his State court remedies for each of the grounds

presented, or otherwise fail to comply with this Order, 

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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 White’s

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

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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: June 19, 2008

cc: Joshua Hall White, pro se

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