Legere v. NH State Prison, Warden

Filing 14

ORDER granting 13 Motion to Amend 1 Petition for Writ of Habeas Corpus. So Ordered by Magistrate Judge Landya B. McCafferty. (gla)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Christopher Legere
v.

Civil No. 10-cv-13-PB

Richard Gerry, Warden,
New Hampshire State Prison
O R D E R
Before the court is Christopher Legere’s motion to amend
his habeas petition (doc. no. 13).

Legere seeks to add claims

to his pending habeas petition alleging that his Sixth and
Fourteenth Amendment rights to the effective assistance of
appellate counsel were violated when his appellate counsel
failed to raise certain claims in Legere’s direct appeal.

For

the reasons explained herein, the motion to amend (doc. no. 13)
is granted, and the stay in this matter is continued.
Background
Legere filed a petition for a writ of habeas corpus in this
court, pursuant to 28 U.S.C. § 2254, raising six claims for
relief (doc. no. 1).

Those claims are numbered 1-6 and are set

forth in an Order issued on January 27, 2010 (doc. no. 6) at pp.
4-6.

This action has been stayed to allow Legere to fully

exhaust those claims in the state courts (doc. no. 6).

During

the stay, Legere has provided the court with regular status

updates indicating that he has diligently pursued exhaustion in
the state courts, and that those efforts are continuing (doc.
nos. 8 - 12).

In Legere’s motion to amend (doc. no. 13), Legere

states that a hearing was held in the state Superior Court on
May 24, 2011, in Legere’s state post-conviction proceedings.

At

that hearing, Legere determined that his appellate counsel had
been ineffective in failing to raise certain claims during
Legere’s direct appeal.
Legere now seeks to add claims to his petition seeking
federal habeas relief on the grounds that his appellate counsel
provided him with ineffective assistance of appellate counsel,
in violation of Legere’s Sixth and Fourteenth Amendment rights.
Legere also seeks to continue the stay in this case to allow him
to exhaust the added claims in the state court.

The claims

Legere seeks to add to the petition are as follows1:
7.

Legere was denied the effective assistance of

appellate counsel in his direct appeal, in violation of his
Sixth and Fourteenth Amendment rights, when his appellate
attorney failed to investigate and raise certain meritorious
1

In order to avoid confusion with the six claims enumerated
in the court’s January 27, 2010 Order (doc. no. 6), the
additional claims Legere seeks to add will be numbered beginning
with number 7. The claims, as identified herein, will be
considered to be the claims raised in the motion to amend, and
added to the petition, for all purposes. If Legere objects to
this identification of these claims, he must do so by properly
moving for reconsideration of this order, or by moving to amend
his petition.
2

claims regarding prosecutorial misconduct that denied Legere his
federal constitutional right to a fair trial, for
a.

the prosecutor’s improper remarks in opening and

closing statements;
b.

the prosecutor’s statement of facts not in

evidence;
c.

the prosecutor’s assertion of a personal opinion

as to the credibility of a witness;
d.

the prosecutor’s assertion of a personal opinion

as to Legere’s guilt; and
e.

the prosecutor’s assertion of a personal opinion

intended to improperly bolster the evidence against Legere;
8.

Legere was denied the effective assistance of

appellate counsel in his direct appeal, in violation of his
Sixth and Fourteenth Amendment rights, when his appellate
attorney failed to investigate and raise a meritorious claim
alleging the improper admission of expert testimony regarding
Legere’s membership in the Outlaws Motorcycle Club, which
rendered the trial unfair in violation of Legere’s federal
constitutional rights; and
9.

Legere was denied the effective assistance of

appellate counsel in his direct appeal, in violation of his
Sixth and Fourteenth Amendment rights, when his appellate
attorney failed to investigate and raise meritorious claims
3

regarding the constitutionally ineffective assistance of counsel
Legere received at trial when his trial attorney:
a.

failed to object to prosecutorial misconduct;

b.

failed to object to “gang evidence”; and

c.

failed to request a limiting instruction on the

permissible use of gang-related expert testimony.
Discussion
“A party may amend its pleading once as a matter of course
within . . . 21 days after serving it.”
15(a)(1)(A).

Fed. R. Civ. P.

As this petition has not yet been served, and the

court finds that claims 7 - 9, as identified above, are
appropriate to raise in this habeas action, Legere’s petition
shall be amended to include those claims, including all of their
subparts.

Legere concedes these claims are not yet exhausted,

as required by 28 U.S.C. § 2254(b)(1)(A).

Accordingly, the stay

already in place in this matter will remain in place pending
exhaustion of all nine claims in the petition, and their
subparts.

Legere is directed to continue to file a status

report every ninety days advising this court of the status of
his exhaustion efforts.

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Conclusion
Legere’s motion to amend (doc. no. 13) is GRANTED.

The

court further directs as follows:
1.

Claims 7-9, as identified and enumerated above, will

be added to the petition.
2.

The stay in this matter remains in effect.

3.

Legere is directed to continue to pursue exhaustion of

his claims in the state courts and to continue to file status
reports in this court every ninety days, advising this court as
to the status of Legere’s exhaustion efforts.
SO ORDERED.

________________________________
Landya B. McCafferty
United States Magistrate Judge
Date: June 22, 2011
cc:

Christopher Legere, pro se

LBM:jba

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