1Named as respondents are William Wrenn, Commissioner of the

New Hampshire Department of Corrections, Richard M. Gerry, Warden

of the New Hampshire State Prison (“NHSP”), and John Eckert,

Executive Assistant of the New Hampshire Adult Parole Board

(“Parole Board”). As petitioner is in custody at the NHSP, I

construe the respondent to be the Warden of the NHSP. See Habeas

Rule 2 (where petitioner is in custody pursuant to a state

judgment, the state officer having custody of the petitioner

shall be named as respondent).

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Anthony LaFauci

v. Civil No. 08-cv-77-PB

Executive Assistant, New Hampshire

Adult Parole Board, et al.1

O R D E R

Pro se petitioner Anthony LaFauci moves this court to lift

the stay of proceedings and review his amended habeas corpus

petition, filed pursuant to 28 U.S.C. § 2254, in which he

challenges his New Hampshire state court confinement (document

no. 12). 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

Case 1:08-cv-00077-PB Document 18 Filed 03/13/09 Page 1 of 3
2To the extent LaFauci moves to lift the stay of federal

proceedings, his motion is denied as moot. On January 14, 2009,

this court granted his motion to lift the stay of federal

proceedings (document no. 13).

2

review pro se pleadings).

LaFauci’s motion is granted to the extent he seeks review of

his amended habeas corpus petition.2 By report and

recommendation issued simultaneously herewith, I have recommended

that Grounds One and Two of the petition be dismissed for failure

to state a claim upon which federal habeas corpus relief may be

granted. 

As LaFauci is in state custody and appears to have exhausted

state remedies with regard to his remaining claim, Ground Three,

the petition may be considered. See 28 U.S.C. § 2254(a) and (b)

(providing that the writ “shall not be granted” unless petitioner

is in state custody and has exhausted all available or effective

state remedies). I therefore order Ground Three of the petition

to be served on the respondent. See Habeas Rule 4. 

Accordingly, the petition shall be served on the Warden of

the NHSP, who shall file an answer or other pleading in response

to the allegations made therein. See id. (requiring reviewing

judge to order a response to the petition). The Clerk’s Office

is directed to serve the New Hampshire Office of the Attorney

Case 1:08-cv-00077-PB Document 18 Filed 03/13/09 Page 2 of 3
3

General, as provided in the Agreement On Acceptance Of Service,

copies of this order, the report and recommendation, and the

habeas petition and amendments thereto (document nos. 1, 5, 9, 10

and 12). Respondent shall answer or otherwise plead within

thirty (30) days of the date of this order. The answer shall

comply with the requirements of Habeas Rule 5 (setting forth

contents of the answer). 

Upon receipt of the response, the Court will determine

whether a hearing is warranted. See Habeas Rule 8 (providing

circumstances under which a hearing is appropriate). 

Petitioner is referred to Fed. R. Civ. P. 5, which requires

that every pleading, written motion, notice, and similar paper,

after the petition, shall be served on all parties. Such service

is to be made by mailing the material to the parties’ attorneys. 

SO ORDERED.

____________________________________

James R. Muirhead 

United States Magistrate Judge

Date: March 13, 2009

cc: Anthony LaFauci, pro se

Case 1:08-cv-00077-PB Document 18 Filed 03/13/09 Page 3 of 3