UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Brandon Fecteau

v. Civil No. 08-cv-368-JL

Warden, New Hampshire State Prison

O R D E R

Pro se petitioner Brandon Fecteau has filed a petition for a

writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging

his New Hampshire state court conviction (document no. 1). The

petition is before me for preliminary review. See Rule 4 of the

Rules Governing § 2254 Proceedings (“Habeas 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 (“LR”) 4.3(d)(2) (authorizing the

magistrate judge to preliminarily review pro se pleadings). 

For the reasons stated below, I find that the petition does

not at this time make a facially sufficient showing that Fecteau

is entitled to relief. I therefore order him to amend the

petition to demonstrate exhaustion of each claim before I will

direct that the petition be answered.

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Background

Convicted by the New Hampshire Superior Court (Strafford

County) of five counts of first degree assault, Fecteau was

sentenced to a term of imprisonment on April 17, 2006. He is

currently serving his sentence at the New Hampshire State Prison

(“NHSP”). He allegedly filed a direct appeal with the New

Hampshire Supreme Court (“NHSC”) in which he raised the following

claims:

1. lack of competency to stand trial;

2. insufficiency of evidence to sustain the

convictions;

3. exclusion and/or restriction of necessary

witnesses and testimony;

4. introduction of evidence without a proper

foundation;

5. denial of the right to confrontation;

6. denial of due process; and

7. denial of the right to a fair trial by an

impartial jury.

The NHSC affirmed his conviction on September 11, 2007.

Fecteau now brings the instant petition, which I liberally

construe to allege the following grounds for federal habeas

corpus relief:

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1See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597

(1993)(explaining that “the Rules of Evidence . . . assign to the

trial judge the task of ensuring that an expert’s testimony . . .

rests on a reliable foundation”); accord Blake v. Pellegrino, 329

F.3d 43, 47 (1st Cir. 2003).

2In amending his petition, Fecteau should identify the

federal nature of his claim.

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1. denial of the right to due process, the right to a

fair trial and the right to confront witnesses

where (1) Fecteau was incompetent to stand trial,

(2) the trial court allowed improper testimony of

the State’s expert witness with regard to the 

competency issue, (3) the trial court discounted

the testimony of Fecteau’s expert witness because

he was a psychologist rather than a psychiatrist,

(4) the trial court denied Fecteau a Daubert

hearing1 and (5) the State failed to present

sufficient evidence of Fecteau’s competency

(Ground 1);

2. evidence at trial was insufficient to sustain five

separate convictions where the State charged

Fecteau with multiple assaults but failed to prove

each assault (Ground 2);2

3. denial of the right to due process, the right to a

fair trial by an impartial jury and the right to

confront and cross-examine witnesses when the

trial court excluded and/or limited exculpatory

evidence, witness testimony and cross-examination

of witnesses (Ground 3); and

4. denial of the right to due process, the right to a

fair trial by an impartial jury and the right to

confront witnesses when the trial court permitted

the State to introduce physical evidence and

witness testimony without a proper foundation

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3In amending his petition, Fecteau is cautioned that

perceived errors of state law generally are not cognizable under

federal habeas review. See Pulley v. Harris, 465 U.S. 37, 41 

(1984) (“A federal court may not issue the writ on the basis of a

perceived error of state law.”) 

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(Ground 4).3

Standard of Review

In reviewing a pro se petition, this Court must construe the

pleadings liberally, see Ayala Serrano v. Gonzalez, 909 F.2d 8,

15 (1st Cir. 1990) (following Estelle v. Gamble, 429 U.S. 97, 106

(1976)), treating all well-pleaded factual allegations as true

and drawing all reasonable inferences in the litigant’s favor,

see Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996) (explaining

that all “well-pleaded factual averments,” not bald assertions,

must be accepted as true). This review ensures that pro se

pleadings are given fair and meaningful consideration. See

Eveland v. Director of CIA, 843 F.2d 46, 49 (1st Cir. 1988).

Discussion

I. Custody and Exhaustion

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

is in custody and has exhausted all state court remedies (or that

he falls within a narrow category of cases in which exhaustion is

not required, such as the absence of an available or effective

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state corrective process). See 28 U.S.C. § 2254(a) & (b); see

also Fecteau v. Henry, 513 U.S. 364, 365 (1995). He satisfies

the first requirement as he is currently incarcerated at the NHSP

and thus is in custody. However, Fecteau fails to satisfy the

second requirement because the petition does not demonstrate that

he has fully exhausted his state remedies with regard to each

claim. Nor has he alleged any facts to suggest that effective

state court remedies are unavailable to him.

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, 29 (2004) (citing Fecteau, 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)). “[T]he exhaustion principle

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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 v. DiPaola, 131

F.3d 259, 261 (1st Cir. 1997). 

In the instant petition, Fecteau raises four grounds for

federal habeas corpus relief. He has not adequately demonstrated

that he presented each claim and the federal nature of each claim

to the NHSC for review. While he has provided excerpts of an

appeal to the NHSC, the document submitted is incomplete and

fails to demonstrate that he has raised the federal nature of his

claims. Furthermore, Fecteau has not provided a copy of the

NHSC’s dispositive order. Accordingly, he has failed to clearly

demonstrate exhaustion of state remedies as to the four claims

raised in his federal petition. To demonstrate exhaustion of his

claims, Fecteau must provide this Court with complete copies of

any motions, petitions, notices of appeal, briefs and orders

and/or final judgments pertaining to his state court proceedings. 

See Smith v. Digmon, 434 U.S. 332, 333 (1978) (discussing

documents which would enable a federal court to determine whether

the grounds supporting the habeas petition had been presented for

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review in the state courts). In particular, he should provide

this Court with a complete copy of the appeal filed with the

NHSC, a copy of any related memoranda and a copy of the NHSC’s

order of September 11, 2007. He may need to return to the state

courts to fully present his unexhausted claims and the federal

nature of each claim before he can make the required amendment to

his federal petition.

II. Stay

I will give Fecteau the opportunity to amend his complaint

to demonstrate exhaustion of the claims for which exhaustion has

not yet been demonstrated and the federal nature of those claims. 

To that end, Fecteau is directed that, within thirty days of the

date of this Order, he must:

1. Amend his petition to demonstrate that the claims,

including the federal nature of each claim, has in fact been

exhausted; or, if the claims have not yet been exhausted,

2. Move to stay this action so that Fecteau may return to

the state courts to exhaust the unexhausted claims. If he elects

to stay this action and return to the state courts to complete

exhaustion, he must file his state court action within thirty

days of the date of this Order. While this matter is stayed,

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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

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

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Fecteau must notify this Court of the status of his state court

matter every ninety days. Once the New Hampshire Supreme Court

has issued a final decision, he must so notify this Court within

thirty days of that decision, providing this Court, at that time,

with complete copies of documents filed in the state courts

demonstrating that the claims, including the federal nature of

the claims, have been raised and exhausted. Fecteau should also

provide this Court with complete copies of any orders or opinions

issued by the state courts relative to the claims. 

Should Fecteau fail to amend his petition as directed, or

otherwise fail to comply with this Order, 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: October 29, 2008

cc: Brandon Fecteau, pro se

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