UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Kevin D. Hall

v. Civil No. 08-cv-352-PB

State of New Hampshire

O R D E R

Pro se petitioner Kevin Hall has filed a petition for a writ

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

Keene District Court conviction on phone harassment charges

(document no. 1). The petition is before me for preliminary

review. See Rule 4 of the Rules Governing Section 2254 Cases in

the United States District Courts (“§ 2254 Rules”) (requiring

initial review to determine whether the petition is facially

valid); see also United States District Court District of New

Hampshire Local Rule (“LR”) 4.3(d)(2) (authorizing the magistrate

judge to preliminarily review pro se pleadings). For the reasons

fully explained herein, I order Hall to amend his petition to

demonstrate that he is “in custody” pursuant to the challenged

conviction, that the petition has been timely filed, and that the

claims raised therein have been exhausted in the state courts.

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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

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.

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1Hall is presently incarcerated in a New York prison serving

a sentence for a conviction unrelated to the conviction

challenged here. 

2N.H. Rev. Stat. Ann. § 502-A:11 gives a criminal defendant

in New Hampshire the right to appeal his misdemeanor state

district court conviction, obtained without a jury, to the

superior court for a de novo jury trial. See City of Rochester

v. Corpening, 153 N.H. 571, 579, 907 A.2d 383, 390 (2006).

3

Background

Kevin Hall alleges that in October of 2004, he was arrested

on three counts of misdemeanor phone harassment. Hall,

represented by an attorney from the New Hampshire Public

Defender’s Office, was convicted after a bench trial in the Keene

District Court and sentenced to serve ninety days in jail.1 Hall

appealed his conviction to the superior court, thereby exercising

his right to a de novo jury trial.2 Hall was incarcerated in

lieu of bail while he awaited his jury trial. 

During his pretrial incarceration, Hall became ill. He was

taken to the hospital, where he had major abdominal surgery. 

Hall was then in the hospital’s Intensive Care Unit for three

weeks, during which time he was heavily sedated and unaware of

what was going on around him. Hall now alleges that during that

three week period, his attorney claims to have obtained Hall’s

consent to dismiss his request for a jury trial and remand the

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matter back to the Keene District Court for imposition of the

conviction and ninety day sentence. The prosecutor in the

criminal case then filed an allegedly assented to motion to

remand the matter. Hall states that he has no memory of giving

consent and that, if he were able to consider the matter, he

would not have given his consent as he wanted a jury trial.

Hall now claims that his conviction and sentence, imposed

pursuant to the remand of the matter to the Keene District Court,

were obtained in violation of his constitutional rights and

should be vacated. Hall brings this federal habeas action

raising the following claims:

1. Hall’s alleged consent to remand his criminal case and 

accept a conviction without a jury trial was obtained 

without his actual consent, or with consent that was 

not knowingly, intelligently, and voluntarily given, 

violating his Fifth, Sixth, and Fourteenth Amendment 

rights to a jury trial, a fair trial, the effective 

assistance of counsel, and due process;

2. Hall’s Sixth Amendment right to the effective 

assistance of counsel was violated because his trial 

attorney represented him while operating under a 

conflict of interest; and

3. Hall’s Sixth Amendment right to the effective 

assistance of counsel was violated when his attorney 

abrogated his duty to raise the issue of Hall’s 

impaired mental health with the trial court.

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Discussion

I. “In Custody” Requirement

Section 2254(a) confers jurisdiction on this Court to issue

“writs of habeas corpus on behalf of a person in custody pursuant

to the judgment of a State court . . . on the ground that he is

in custody in violation of the Constitution or laws or treaties

of the United States.” Accordingly, to seek habeas relief under

§ 2254, Hall must allege both that his state conviction or

sentence violates some right accorded to him under federal law,

and that he is in custody pursuant to that state conviction or

sentence. See Maleng v. Cook, 490 U.S. 488, 491 (1989). Whether

or not a petitioner is “in custody” for purposes of the federal

habeas statute is determined by the petitioner’s status at the

time the petition is filed. See id. While actual incarceration

is not always necessary to demonstrate that a petitioner is “in

custody,” a petitioner must demonstrate that he is under

“restraints not shared by the public generally, . . . there must

be some type of continuing governmental supervision over the

person.” Tinder v. Paula, 725 F.2d 801, 803 (1st Cir. 1984)

(internal quotations and citations omitted).

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 While Hall is currently in prison, his present incarceration

is for a felony conviction unrelated to the conviction challenged

in this action. Hall alleges that he received a ninety day

sentence in 2004 and 2005, and a fair reading of Hall’s petition

allows for the conclusion that the ninety day sentence has

already been served. Hall does not allege that there were any

other consequences of his misdemeanor conviction that would

amount to “restraints not shared by the public generally. Id. 

Accordingly, Hall has not yet alleged facts that allow this Court

to find that he is “in custody” pursuant to the challenged

conviction. However, as the petition is silent on the point, I

will allow Hall an opportunity to demonstrate to the Court that

he should still be considered to be “in custody” because of the

2004 harassment charges to allow him to seek relief under § 2254.

II. Exhaustion

In addition to demonstrating that he is “in custody,” to be

eligible for habeas relief, Hall must show that he 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 process. See 28 U.S.C. § 2254(a) & (b); see

also Braden v. 30th Jud. Cir. Ct., 410 U.S. 484, 489-92 (1973);

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Benson v. Super. Ct. Dep’t of Trial Ct., 663 F.2d 355, 358-59

(1st Cir. 1981). At this time, Hall’s petition does not

demonstrate that he has fully exhausted his state remedies.

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) (“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 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 F.3d 158, 162 (1st Cir. 2007) (quoting

Casella v. Clemons, 207 F.3d 18, 20 (1st Cir. 2000) (internal

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citations omitted)). 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 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)); see Baldwin v. Reese, 541 U.S. 27, 32 (2004) (A litigant

wishing to raise a federal issue can exhaust the federal issue in

the state courts “by citing in conjunction with the claim the

federal source of law on which he relies or a case deciding such

a claim on federal grounds, or by simply labeling the claim

‘federal.’”); 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 a state court). 

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 Hall has not alleged any facts that allow this Court to find

that the claims presented here, including the federal nature of

those claims, have ever been raised in the state courts. 

Further, Hall has neither alleged nor demonstrated that effective

state corrective processes are unavailable to him. Hall has

therefore failed to demonstrate exhaustion. Again, as the

petition does not conclusively negate the possibility that Hall’s

habeas claims have been exhausted, I will allow Hall the

opportunity to amend his petition to demonstrate that his claims

have, in fact, been exhausted, or that he should be excused from

exhaustion due to the unavailability of effective state

corrective processes. 

III. Statute of Limitations

The Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), 28 U.S.C. § 2244 et seq. (2000) sets a one-year

limitations period for the filing of federal habeas petitions by

state prisoners. 28 U.S.C. § 2244(d)(1). AEDPA’s one-year limit

runs from the time that the state court judgment of conviction

became final by the conclusion of direct review, or the

expiration of the time for seeking direct review. 28 U.S.C. §

2244(d)(1)(A). 

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Statutory exceptions to the one-year limitations period

exist where an untimely filing was caused by: (1) the state, (2)

new constitutional rights created by the Supreme Court, or (3)

newly discovered facts underpinning the claim. David, 318 F.3d

at 344; 28 U.S.C. § 2244(d)(1)(B)-(D). The AEDPA also excludes

from the one-year limitations period “[t]he time during which a

properly filed application for State post-conviction or other

collateral review with respect to the pertinent judgment or claim

is pending . . . .” 28 U.S.C. § 2244(d)(2). Additionally, the

First Circuit has stated that equitable tolling of the AEDPA’s

limitations period might be available, but “only for the most

exceptional reasons.” David, 318 F.3d at 346. 

 Here, Hall challenges a conviction that appears to have

become final in 2004 or 2005. While the petition is silent as to

the exact day the matter was remanded to the Keene District Court

for imposition of the guilty finding and sentence, it does appear

that it happened closer in time to the October 2004 arrest than

to the filing of this action. Further, it does not appear on the

face of the petition, or from any inference that might reasonably

be drawn from the petition, that any of the other potential

exceptions to the statute of limitations applies here. 

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Accordingly, I find that Hall has not demonstrated that the

petition here was timely filed. Because I cannot make a

conclusive determination, based on the facts alleged in Hall’s

petition, as to the timeliness of the filing, I will give Hall

the opportunity to amend his petition to demonstrate that the

matter has been timely filed.

Conclusion

I direct Hall to amend his petition within thirty days of

the date of this Order to demonstrate that:

1. At the time this petition was filed, Hall was “in

custody” as required by § 2254(a);

2. The claims raised, including the federal nature of hte

claims, have been exhausted in the state courts. To demonstrate

exhaustion, Hall must submit documents to this Court which show

that the claims raised in this petition, including the federal

nature of each of the claims, have all previously been presented

to the state courts, including the New Hampshire Supreme Court,

for consideration; and

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3. The petition has been timely filed.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: December 1, 2008

cc: Kevin D. Hall, pro se

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