UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Robert V. Towle

v. Civil No. 08-cv-038-JL

Warden, New Hampshire State Prison

O R D E R

Before the Court is Robert Towle’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 in the United States District Courts

(“§ 2254 Rule”) (requiring initial review to determine whether

the petition is facially valid); United States District Court

District of New Hampshire Local Rule (“LR”) 4.3(d)(2)

(authorizing magistrate judge to preliminarily review pro se

filings by incarcerated persons). 

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

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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.

Background

Petitioner Robert Towle pled guilty to two counts of

possessing child pornography and was sentenced to serve 3 1⁄2 - 7

years in the New Hampshire State Prison on December 4, 2006. 

Although Towle did not take a direct appeal of his conviction and

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1The claims as identified here will be considered to be the

claims raised in the petition for all purposes. If Towle

disagrees with the claims as identified, he must file an

amendment to his petition.

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sentence to the New Hampshire Supreme Court (“NHSC”), he did file

a motion to withdraw his plea during the year following his

conviction. In the motion to withdraw his plea, Towle challenged

the constitutionality of his conviction and sentence on the

grounds that: (1) he received ineffective assistance of counsel,

(2) the offense with which he was charged and to which he

believed he was pleading guilty was materially different than the

offense to which he actually pled guilty, (3) he is innocent of

the offense to which he pled guilty, and (4) as a result of the

variance in the charge to which he pled guilty, his plea was not

knowing, intelligent, and voluntary. The motion was denied by

the trial court on December 3, 2007. Towle appealed the denial

of his post-conviction motion, but he has provided no details as

to the status of his appeal. 

Towle now files this petition, alleging the following

claims:1

1. Towle received ineffective assistance of counsel, in 

violation of his Sixth Amendment right to counsel, 

when:

a. his attorney failed to object when Towle was given

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a sentence that exceeded the negotiated plea 

agreement;

 b. his attorney failed to inform him of the elements 

of the offense to which he was pleading guilty;

 c. His attorney withheld information regarding the 

plea and sentencing agreement with the state, 

causing Towle to be unfairly surprised at his 

sentencing;

2. Towle’s Fourteenth Amendment due process right to be 

notified of the charges against him, as well as his 

right to be indicted by a grand jury, were violated 

when the charge to which he pled guilty differed

materially from the charge that was approved by the 

grand jury;

3. Towle’s right to due process under the Fourteenth 

Amendment was violated when the charge Towle pled 

guilty to was different than the charged offense, 

because Towle was innocent of the offense to which he 

pled guilty;

4. Towle’s Sixth Amendment right to a trial was violated 

when he entered a guilty plea that was not knowing, 

intelligent and voluntary, because he was denied notice

of the charge and elements of the crime to which he was

pleading guilty.

Discussion

Under 28 U.S.C. § 2254, the federal courts are authorized to

“entertain an application for a writ of habeas corpus in behalf

of a person in custody pursuant to a judgment of a state court

only on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.” To be

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eligible for habeas relief, Towle must show that he is both in

custody and 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. of Ky., 410

U.S. 484, 489-92 (1973); Benson v. Super. Ct. Dep’t of Trial Ct.

of Mass., 663 F.2d 355, 358-59 (1st Cir. 1981). Towle satisfies

the first eligibility requirement as he is currently serving his

sentence and is thus in custody. However, at this time, Towle’s

petition demonstrates neither that he has fully exhausted his

state remedies, nor that effective state 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, Maloney

v. Lanigan, 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

Picard v. Connor, 404 U.S. 270, 275 (1971) (requiring petitioner

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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). “[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). 

While Towle asserts that he has litigated a motion to

withdraw his plea, and that he has appealed the denial of that

motion to the New Hampshire Supreme Court, he has not provided

this Court with sufficient facts to make clear whether he has

actually raised each claim brought here, including the federal

rights encompassed in the claim, to the state’s highest court. 

Towle has not attached any pleadings, court orders, or other

documents demonstrating precisely which claims were raised in the

New Hampshire Supreme Court. Because such a showing is necessary

to demonstrate exhaustion, I find that Towle has not yet

demonstrated exhaustion of state court remedies.

Rather than dismiss the petition for failing to demonstrate

exhaustion of each claim, I will direct Towle to amend his

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petition to include, for each claim presented in his petition,

documentation, including orders, motions, petitions, notices of

appeal, briefs, or other pleadings, showing that the issues

presented here, including the precise federal nature of the

issues, were in fact presented to the state courts, including the

New Hampshire Supreme Court, for consideration. 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). If Towle must, to satisfy the exhaustion

requirement set out here, return to the state courts to fully

present his claims before he can make the required amendment to

his current petition, he must request a stay in these

proceedings, which I will grant to allow him to exhaust his

claims and amend his petition. See Duncan v. Walker, 533 U.S.

167, 182-83 (2001) (Stevens, J., concurring) (“[T]here is no

reason why a district court should not retain jurisdiction over a

meritorious claim and stay further proceedings pending the

complete exhaustion of state remedies.”). 

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Conclusion

Towle is ordered to amend his petition within thirty days of

the date of this Order to notify this Court as to whether (1) he

has already exhausted all of his claims and to demonstrate

exhaustion here, or (2) he intends to return to the state court

to complete exhaustion prior to amending his petition to

demonstrate exhaustion here. If Towle chooses to exhaust any

unexhausted claims prior to filing his amended petition, he must

commence state court action to exhaust all of the unexhausted

claims, and file a motion to stay this action in this Court,

within thirty days of the date of this Order. 

If the petition is stayed to allow Towle to complete

exhaustion of his claims, Towle is ordered to contact this Court

every 90 days, beginning 90 days from the date of the Order

staying his petition, to notify the Court that the matter is

still pending in the state courts and has not been decided, or to

report any change in the status of the state court proceedings. 

When the New Hampshire Supreme Court has ruled on his claims, and

the claims are thus exhausted, Towle must, within 30 days of

being notified of the Supreme Court’s final ruling, notify this

Court of that ruling, submit to this Court the New Hampshire

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2If 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 Towle’s

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

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Supreme Court’s ruling, as well as all briefs or other pleadings

filed in that court, and file a request that this Court further

consider his petition. Failure to amend his petition as

directed, to proceed promptly in the state court if Towle has not

yet exhausted his claims, or failure to comply with the

notification requirements of this Order, may result in the

dismissal of the petition for failing to demonstrate exhaustion

of all of the claims presented.2

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: February 14, 2008

cc: Robert V. Towle, pro

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