UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Frank M. Tieff, III

v. Civil No. 07-cv-315-PB

State of New Hampshire

O R D E R

Before the Court is Frank Tieff’s petition for a writ of

habeas corpus, filed pursuant to 28 U.S.C. § 2254. The matter is

before me for preliminary review. See Rule 4 of the Rules

Governing § 2254 proceedings (“§ 2254 Rule”) (requiring initial

review to determine whether the petition is facially valid);

United States District Court for the District of New Hampshire

Local Rule (“LR”) 4.3(d) (authorizing magistrate judge to

preliminarily review pro se filings). 

Standard of Review

Under this Court’s local rules, when a plaintiff commences

an action pro se and in forma pauperis, the magistrate judge is

directed to conduct a preliminary review. LR 4.3(d). In

conducting the preliminary review, the Court construes pro se

pleadings liberally, however inartfully pleaded. See Erickson v.

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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

Although the allegations in the petition are scant,

generously construed, the petition seems to allege the following

facts. Frank Tieff was arrested by the Manchester Police

Department on June 19, 2007. During his transport to the police

station, he was not read his Miranda rights and was not told the

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reason he was being arrested. While at the police station

awaiting booking, Tieff overheard the officers discussing what he

should be charged with. Tieff was not provided with an attorney

at the police station. On June 20, 2007, he was taken to the

Manchester District Court where he was arraigned. Bail was set

at $1000 cash or surety and a trial was scheduled in that Court

for August 29, 2007. Tieff remained in jail for six days until

he was able to post bail.

Tieff filed a petition for a writ of habeas corpus in the

State courts, which was denied. The habeas petition filed here

does not reveal what grounds were raised in the State court

petition. Tieff appealed the denial of his State habeas petition

to the New Hampshire Supreme Court. That Court declined Tieff’s

notice of appeal on September 14, 2007. This petition followed.

Discussion

I. Custody

To be eligible for habeas relief, Tieff must show that he is

(1) in custody and (2) 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 processes. 

See 28 U.S.C. § 2254(a) & (b); see also Adelson v. DiPaolo, 131

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F.3d 259, 261 (1st Cir. 1997) (citing authority to explain the

exhaustion principle). 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). While the habeas statute limits the availability of

federal habeas review to those who are “in custody,” that statute

does not define the boundaries of “custody” or, by its own terms,

limit “custody” to any particular situation. See Jones v.

Cunningham, 371 U.S. 236, 238 (1963). Although habeas relief is

not limited to those who are in actual physical custody according

to a State court judgment, to be “in custody,” an applicant for

habeas relief must be subject to significant restraints on his

liberty that are “not shared by the public generally.” Id. at

239-40.

The First Circuit has followed the Supreme Court in

recognizing a number of situations where an applicant who is not

in the physical custody of the State has nevertheless been

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permitted to claim custodial status for purposes of requesting

habeas relief. Lefkowitz v. Fair, 816 F.2d 17, 19 (1st Cir.

1987) (citing Justices of Boston Mun. Ct. v. Lydon, 466 U.S. 294,

301 (1984) for the proposition that pretrial release on personal

recognizance constitutes custody); Hensley v. Mun. Ct., San Jose

Milpitas Jud. Dist., Santa Clara County, Cal., 411 U.S. 345, 349-

51 (1973) (release on personal recognizance pending execution of

sentence constitutes custody); Cunningham, 371 U.S. at 240-43

(habeas petitioner on parole is in custody)). 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). 

Petitioner here was initially incarcerated, and then

released on bail conditions. If petitioner is currently released

on bail, he is in custody for purposes of determining his

eligibility for federal habeas relief. See Lefkowitz, 816 F.2d

at 22 (petitioner who had been released on bail was technically

in State’s custody). Furthermore, if he is presently

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incarcerated, or subject to future incarceration, for the offense

complained of, he is clearly in custody. As the petition does

not make clear the basis upon which Tieff was in custody at the

time the petition was filed, if in fact he was then in custody, I

direct Tieff to amend his petition to demonstrate, with

particularity, the basis upon which he claims to be in custody

pursuant to a State court judgment.

II. Exhaustion

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). However, Tieff’s petition does not allege

any specific violations of his federal rights, or whether or how 

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claims based on those violations have been exhausted in the State

courts.

Tieff is directed to amend his petition to clearly state

each of the claims he intends to raise in this action, and, for

each claim raised, the precise federal right he claims has been

violated. Tieff is further directed to demonstrate how each of

those claims, including the federal nature of the claims, has

been exhausted in the State courts. To do this, Tieff should

file copies of all of the documents filed in the State courts,

and the Orders issued therefrom, relating to the litigation and

exhaustion of these claims, including, but not limited to, his

trial court habeas petition and his notice of appeal filed in the

New Hampshire Supreme Court. See Smith v. Digmon, 434 U.S. 332,

333 (1978) (listing documents which would enable a federal court

to determine whether the grounds supporting the habeas petition

had been presented for review in the State courts).

Conclusion

Tieff must amend his petition within thirty (30) days of the

date of this Order to demonstrate, with particularity:

1. The grounds upon which he claims to be in custody

pursuant to a State court judgment;

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1If 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 Tieff’s

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

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2. The claims he seeks to pursue in this petition,

including the precise federal right allegedly violated to give

rise to each claim; and

3. How he has exhausted each of the claims he seeks to

raise, including the federal nature of those claims, including

documentation, demonstrating that exhaustion is complete.

Should Tieff fail to make a showing that he has exhausted

his State court remedies for each of the grounds presented, or

otherwise fail to comply with this Order, the petition may be

dismissed for failure to demonstrate exhaustion.1 See 28 U.S.C.

§ 2254(b).

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: November 7, 2007

cc: Frank M. Tieff, III, pro se

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