1The unexhausted claims, which challenge the validity of

Evans’ conviction, rather than his sentence, are not related to

the claim raised in Evans’ initial petition and have only been

alluded to in Evan’s other filings, but have not been fully set

forth in an amended habeas petition.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Chad Evans

v. Civil No. 08-cv-105-JD

Richard Gerry, Warden

New Hampshire State Prison

O R D E R

Chad Evans has filed a petition for a writ of habeas corpus

(document no. 1) challenging the constitutionality of his

sentence as increased and imposed by the state Superior Court’s

Sentence Review Division. Evans has previously requested a stay

in this matter in order to exhaust several claims in the state

courts that have not yet been exhausted (document no. 3).1 On

May 6, 2008, this Court granted Evans’ motion to stay, and

directed him to: (1) commence his state court proceedings to

exhaust his unexhausted claims within thirty days of May 6, 2008;

(2) file status reports every ninety days during the pendency of

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the state proceedings; and (3) notify this Court within thirty

days of exhausting his unexhausted claims in the state courts

(document no. 5).

While Evans has dutifully filed status reports every ninety

days since the issuance of my May 6, 2008 Order (document nos. 6

- 12), he has yet to initiate proceedings in the state courts to

exhaust his unexhausted claims. Accordingly, while his initial

claim challenging his sentence appears to have been exhausted,

his petition remains mixed at this time.

I have reviewed each of the status reports filed, and it

seems that Evans’ efforts toward exhausting his unexhausted

claims, thus far, have amounted to hiring investigators to track

down various witnesses that he believes he needs in order to

prove the substance of the claims he intends to raise in his

state court motion for a new trial. While Evans has been

pursuing factual investigation, he has done nothing to present

the substance of his constitutional challenges to his conviction

to the state courts.

In order to exhaust his claims here, Evans must present the

substance of his claims, including the federal constitutional

nature of each claim, to the state Superior Court in a state

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2While Evans has previously indicated that he intends to

file a motion for a new trial in the state courts, the

limitations period for filing such a motion in the state court

may have passed. A litigant in the state Superior Court seeking

a new trial has three years from the date of “rendition of the

judgment complained of” in which to file that motion. N.H. Rev.

Stat. Ann. § 526:4. The latest date upon which judgment can be

said to have been rendered in his case is April 26, 2005, the

date his sentence was increased. See State v. Looney, 154 N.H.

801, 804, 917 A.2d 1258, 1261 (2007) (“In the context of a

criminal case, a judgement is ‘rendered’ when the sentence has

been imposed by the trial court” and not when the appeal becomes

final.) (citation omitted). As more than three years has passed

since Evans’ increased sentence was imposed, in order to exhaust

his unexhausted claims in the state courts, Evans may have to

file a state habeas petition.

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habeas action or in a motion for a new trial.2 After that action

has been filed, Evans may address any issues concerning discovery

materials or evidence he needs to prove those claims with the

hearing court, and he may seek a stay of proceedings in the state

court to complete investigation, if necessary. Once the Superior

Court has rendered a decision, if the petition is denied, Evans

must appeal each of his federal constitutional challenges to his

conviction to the New Hampshire Supreme Court for consideration

in order to satisfy the exhaustion requirement of the federal

habeas statute. See 28 U.S.C. § 2254(b).

I note that, to date, the ninety-day status reports in this

case have been accepted by this Court although they were signed

only by Evans and not his attorney. Evans is represented by

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3See Rhines v. Weber, 544 U.S. 269, 277-78 (2005) (Even

where stay of unexhausted habeas petition is appropriate to allow

exhaustion in the state courts, “district courts should place

reasonable time limits on a petitioner’s trip to state court and

back.”). 

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counsel in this matter. As such, all pleadings in this action,

including notifications and status reports, must be filed and

signed by counsel of record. See United States District Court

District of New Hampshire Local Rule 4.3(e) (“any litigant who is

represented by an attorney may not file a pleading in a case

unless: (1) The court grants a motion for leave to file a pro se

pleading; or (2) The litigant is filing a motion related to the

status of counsel.”). Any pleading not conforming to this rule,

going forward, shall not be docketed or presented to a judicial

officer, and will instead be returned to the filer. Id.

Evans is now ordered to:

1. File a substantive habeas petition or motion for a new

trial in the state Superior Court, including each of the

unexhausted claims he seeks to raise here, within thirty (30)

days of the date of this Order3;

2. Notify this Court that such an action has been filed

within thirty (30) days of the date of this Order;

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3. Continue to provide this Court with status reports

every ninety (90) days until the claims are fully exhausted in

the state courts. Evans should note that the status reports he

files, going forward, should contain information regarding the

exhaustion of his claims in his state habeas or new trial action,

and not simply an update regarding investigation efforts. 

4. Once the claims are fully exhausted Evans must return

to this Court, seek a lift of the stay in this case, and file an

amended petition demonstrating exhaustion of each of the claims

raised here. 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: December 14, 2009

cc: David Rothstein, Esq.

JM:jba

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