UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Gerard Joseph Bean

v. Civil No. 07-cv-328-JL

Warden, Northern New Hampshire

Correctional Facility

O R D E R

Pro se petitioner Gerard Joseph Bean has filed an amended

petition for a writ of habeas corpus, pursuant to 28 U.S.C. §

2254, challenging his New Hampshire state court conviction

(document nos. 17, 20-21). 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). Also filed is a motion

to amend the petition, which is hereby granted (document no. 20).

For the reasons stated below, Bean is ordered to amend the 

petition to demonstrate exhaustion of state remedies with regard

to Grounds One, Two and Four-Eleven. He is further ordered to

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provide this Court with a copy of the April 10, 2007 appeal to

the NHSC and the NHSC’s order denying that appeal.

Background

On October 13, 2002, Bean was arrested for attempted

kidnapping of an eight-year-old girl. Following a mistrial in

December 2003, he was re-tried and convicted in April 2004 by the

New Hampshire Superior Court (Rockingham County) of attempted

kidnapping. He was sentenced to a term of imprisonment and is

currently incarcerated at the Northern New Hampshire Correctional

Facility (“NCF”). On March 21, 2005, Bean filed a direct appeal

of his conviction with the New Hampshire Supreme Court (“NHSC”)

in which he raised the following claims:

(1) the trial court’s instructions to the jury

impermissibly amended the indictment, which was itself

insufficient;

(2) the trial court violated federal law (a) by

improperly permitting the State to refresh the victim’s

recollection and (b) by improperly admitting hearsay

evidence concerning Bean’s alleged statements to the

victim, all of which resulted in prejudice to Bean

(citing United States v. Weller, 238 F.3d 1215, 1221

(10th Cir. 2001)); and

(3) the trial court erred by failing to grant Bean’s

motion for a directed verdict when there was

insufficient evidence to convict.

See State v. Bean, 153 N.H. 380, 82, 879 A.2d 946, 948 (2006).

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The NHSC affirmed Bean’s conviction on April 25, 2006. See id.

at 380, 879 A.2d at 946.

On September 20, 2006, Bean filed a petition for a writ

habeas corpus with the New Hampshire Superior Court (Coos County)

in which he raised the following requests and claims:

(1) request to appoint an investigator to examine the

ethics of the child advocacy center on the basis that

testimony damaging to his case was elicited through

improper suggestive interviewing techniques;

(2) request to digitally enhance a surveillance video,

used to corroborate Bean’s alleged criminal behavior,

on the basis that a higher resolution video would

refute testimony and impeach the credibility of several

witnesses;

(3) request for release from incarceration on the

basis of the following broadly-alleged violations that

ostensibly occurred during his criminal trial:

(a) perjured testimony;

(b) unlawful detention by police during his arrest;

(c) physical abuse by police;

(d) insufficient indictment;

(e) unfair introduction of evidence;

(f) ineffective assistance of trial counsel;

(g) ineffective assistance of appellate counsel;

(h) prosecutorial misconduct; and

(I) judicial misconduct.

The superior court denied the petition on January 16, 2007. 

Bean now alleges that on April 10, 2007, he filed a notice

of appeal with the NHSC. Because he did not have a copy of the

habeas petition previously filed with the New Hampshire Superior

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1In amending his petition, Bean is cautioned that habeas

corpus relief is not available on a Fourth Amendment claim where

the petitioner had a full and fair opportunity to raise the claim

in state court. See Stone v. Powell, 428 U.S. 465, 494 (1976)

(“[W]here the State has provided an opportunity for full and fair

litigation of a Fourth Amendment claim, a state prisoner may not

be granted federal habeas corpus relief on the ground that

evidence obtained in an unconstitutional search or seizure was

introduced at his trial.”). 

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Court (Coos County), he requested the NHSC to obtain a copy. On

May 11, 2007, the NHSC ordered the superior court to transfer to

the NHSC a copy of Bean’s habeas petition and the superior

court’s order denying the petition. Bean has not provided this

Court with a copy of that appeal, therefore, the record is silent

as to the precise claims raised and the federal nature, if any,

of those claims. The only existing record is the superior

court’s order of January 16, 2007, which indicates that Bean had

failed to adequately plead or raise a constitutional claim. The

NHSC allegedly denied the appeal on August 16, 2007.

Bean filed the instant petition on October 9, 2007, which I

liberally construe to allege the following eleven grounds for

federal habeas corpus relief:

1. violation of the Fourth Amendment right to be free

from unreasonable searches and seizures when

police officers arrested Bean without probable

cause and without a warrant (Ground One);1

2. violation of the Fifth Amendment right to remain

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silent and Miranda v. Arizona, 384 U.S. 436 (1966)

(holding that police officers must inform a

suspect of his Fifth Amendment privilege against

self-incrimination prior to initiating a custodial

interrogation) when the arresting police officers

failed to inform Bean of his privilege against

self-incrimination prior to initiating a custodial

interrogation (Ground Two);

3. the trial court violated federal law (a) by

improperly permitting the State to refresh the

victim’s recollection and (b) by improperly

admitting hearsay evidence concerning Bean’s

alleged statements to the victim all of which

resulted in prejudice to Bean (Ground Three);

4. the trial court erred by failing to appoint an

investigator to examine the ethics of the child

advocacy center on the basis that testimony

damaging to Bean’s case was elicited through

improper suggestive interviewing techniques

(Ground Four);

5. denial of the Sixth Amendment right to effective

assistance of trial counsel arising from counsel’s

failure to:

a. move to suppress testimony and/or false

statements made by two police officers;

b. move to suppress inculpatory statements made

by Bean;

c. interview the victim witness;

d. adequately cross-examine the victim witness;

e. move for a court-appointed investigator to

question the child victim;

f. investigate false statements made by the

arresting police officers, witnesses and a

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detective;

g. raise certain objections at trial;

h. preserve issues for appeal;

i. call witnesses, including expert witnesses,

at trial;

j. conduct adequate cross-examinations at trial;

k. follow-up on Bean’s sentence review;

l. correct false arrest reports in Bean’s state

and federal criminal records;

m. investigate and depose certain witnesses who

allegedly made false statements;

n. move for a change of venue in light of the adverse

publicity of Bean’s criminal proceedings;

o. move to digitally enhance a surveillance video,

used to corroborate Bean’s alleged criminal

behavior, on the basis that a higher resolution

video would refute testimony and impeach the

credibility of several witnesses; and

p. interrogate the jurors with regard to the verdict

against Bean (Ground Five).

6. denial of the Sixth Amendment right to effective

assistance of appellate counsel arising from

counsel’s failure to raise certain issues on

direct appeal (Ground Six);

7. denial of the Sixth Amendment right to a speedy

trial when Bean was arrested in October 2002 on a

charge of attempted kidnapping but was not

indicted for that offense until February 4, 2003

(Ground Seven);

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2With regard to Grounds Four, Seven and Eleven, Bean 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.”) Accordingly,

in amending his petition, he should identify the federal nature

of his claims.

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8. prosecutorial misconduct arising from the

prosecution’s use of false and/or perjured

testimony and failure to admit into evidence a

transcript of the interview conducted by the child

advocacy center, which Bean alleges contained

exculpatory evidence (Ground Eight); 

9. violation of the New Hampshire Rules of

Professional Conduct when the prosecution (a)

prosecuted a charge not supported by reasonable

evidence, (b) failed to ensure that Bean was

advised of his rights, (c) failed to timely

disclose exculpatory information and evidence and

(d) failed to exercise reasonable care with regard

to extrajudicial statements (Ground Nine);2

10. violation of the Fourteenth Amendment right to due

process when Bean’s conviction was obtained by

perjured and/or false testimony and statements by

certain witnesses, police officers and a detective

(Ground Ten); and

11. judicial misconduct arising from the trial court’s

failure to declare a mistrial on the basis that

two child witnesses were incompetent to testify

(Ground Eleven).

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

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(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, Bean 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

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

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

first requirement as he is currently incarcerated at the NCF and

thus is in custody. However, Bean 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

raised in the petition. Nor has he alleged any facts to suggest

that effective state court remedies are unavailable to him.

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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 Duncan, 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

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, Bean raises eleven grounds for

federal habeas corpus relief. Ground Three appears to be

exhausted for purposes of preliminary review. As to the

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remaining grounds, however, there is no indication that Bean

presented the claims and the federal nature of the claims to the

NHSC for review. To demonstrate exhaustion of those claims, he

must provide this Court with copies of any relevant 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 review in

the state courts). In particular, he should provide a copy of

the notice of appeal filed with the NHSC on April 10, 2007 and a

copy of the NHSC’s August 16, 2007 order denying the appeal. As

explained in my previous order, Bean 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. 

Conclusion

For the reasons stated above, I will allow Bean an

opportunity to amend his petition to demonstrate exhaustion of

state remedies with regard to Grounds One, Two and Four-Eleven of

the petition. If the claims have not been exhausted, he is

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ordered to notify the court either (1) that he is withdrawing the

unexhausted claims or (2) that he is proceeding in state court to

exhaust them. In the event he chooses to exhaust in state court,

the proceedings will be stayed and the petition held in abeyance

in accordance with the conditions set forth in my order of

February 7, 2008. 

SO ORDERED.

____________________________________

James R. Muirhead 

United States Magistrate Judge

Date: May 1, 2008

cc: Gerard Joseph Bean, pro se

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