UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Terry T. Thomas

v. Civil No. 07-cv-385-JL

Warden, New Hampshire State Prison

REPORT AND RECOMMENDATION

Before the Court is Terry Thomas’ petition for a writ of

habeas corpus (document no. 1), filed pursuant to 28 U.S.C. §

2254. The petition is before me for preliminary review to

determine, among other things, whether it states a claim upon

which relief might be granted. See United States District Court

for the District of New Hampshire Local Rule (“LR”) 4.3(d)(2);

Rule 4 of the Rules Governing Section 2254 Cases in the United

States District Courts. Because I find that this Court lacks

jurisdiction over this matter, I recommend that Thomas’ petition

be dismissed. 

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

Terry Thomas was arrested on October 29, 1999 and charged

with three counts of receiving stolen property. Thomas was

detained on bail until March 28, 2000, when he was released on

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his own recognizance pending trial. Thomas was convicted, after

a trial, on May 10, 2001. Upon his conviction, the Court revoked

Thomas’ bail, and he was immediately incarcerated. On January 9,

2002, Thomas was sentenced to serve three concurrent terms of 3 1⁄2

- 7 years in prison. Thomas was released from custody, after

serving his maximum sentence, on December 4, 2007.

Discussion

To petition a federal court for habeas corpus relief from a

State court judgment, the applicant must be “in custody in

violation of the Constitution or laws or treaties of the United

States.” See Garlotte v. Fordice, 515 U.S. 39, 40 (1995) (citing

28 U.S.C. § 2254(a)); Maleng v. Cook, 490 U.S. 488, 490-91

(1989). The “in custody” requirement is jurisdictional. See

Carafas v. LaVallee, 391 U.S. 234, 238 (1968). 

The First Circuit has specifically found that custody

requires, at least, some type of ongoing or continuing

governmental supervision, and that “[h]e who seeks the writ must

be incarcerated, or under imminent threat of incarceration, in

order to meet the custody requirement of the habeas statute.” 

Tinder v. Paula, 725 F.2d 801, 803-04 (1st Cir. 1984). Here,

although Thomas’ petition was filed while he was still in

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custody, he is no longer in custody. Further, because he has

already served his maximum sentence, he is not subject to any

future threat of incarceration, or any other type of supervisory

control by the government, for the challenged convictions. 

Accordingly, I find that Thomas has not fulfilled the “in

custody” requirement for federal habeas review. This Court,

therefore, lacks jurisdiction to consider Thomas’ habeas

petition, and I recommend that the petition be dismissed on that

basis. 

Any objections to this report and recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

Law Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992);

United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: March 14, 2008

cc: Terry T. Thomas, pro se

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