Levesque v. New Hampshire

Filing 2

ORDER the petition is dismissed 1 Petition for Writ of Habeas Corpus. So Ordered by Judge Paul J. Barbadoro. (mm)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

Andre Levesque
v.

Case No. 11-cv-42-PB
Opinion No. 2011 DNH 058 C

State of New Hampshire

MEMORANDUM AND ORDER

Andre Levesque has filed a petition for a writ of habeas
corpus alleging that he is presently being held in custody in
violation of his federal constitutional rights.

The matter is

before the court for an initial review to determine whether the
petition is facially sufficient to proceed.

See Rules Governing

Section 2254 Cases in the United States District Courts (Ҥ 2254
Rules”) Rule 4.

I.

STANDARD OF REVEIW

In conducting the preliminary review required by § 2254
Rule 4, the court construes all of the factual assertions in the
pro se pleadings liberally, however inartfully pleaded.

See

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)
(following Estelle v. Gamble, 429 U.S. 97, 106 (1976), to
construe pro se pleadings liberally in favor of the pro se
1

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.”

Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st

Cir. 1997); see also Castro v. United States, 540 U.S. 375, 381
(2003) (courts may construe pro se pleadings to avoid
inappropriately stringent rules and unnecessary dismissals).
This review ensures that pro se pleadings are given fair and
meaningful consideration.
To determine if a pro se complaint states any claim upon
which relief could be granted, the Court must consider whether
the complaint, construed liberally, Erickson, 551 U.S. at 94,
“contain[s] sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citation
omitted).

“A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”

Id. at 1949.

Inferences reasonably drawn

from the plaintiff’s factual allegations must be accepted as
true, but the Court is not bound to credit legal conclusions,
labels, or naked assertions, “devoid of ‘further factual
enhancement.’”

Id. (citation omitted); see also Bell Atl. Corp.
2

v. Twombly, 550 U.S. 544, 555 (2007) (“Factual allegations must
be enough to raise a right to relief above the speculative
level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).” (citations and
footnote omitted)); Sepúlveda-Villarini v. Dep’t of Educ., 628
F.3d 25, 28 (1st Cir. 2010) (“The make-or-break standard . . .
is that the combined allegations, taken as true, must state a
plausible, not a merely conceivable, case for relief.”).

The

plausibility requirement “simply calls for enough fact to raise
a reasonable expectation that discovery will reveal evidence” of
illegal conduct.

Bell Atl. Corp., 550 U.S. at 556.

Determining

if a complaint sufficiently states such a claim for relief is a
“context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.”

Ashcroft, 129 S.

Ct. at 1950 (citation omitted).

II.

BACKGROUND

Andre Levesque was arrested and charged with criminal
threatening on July 22, 2009.
since that date.

Levesque has been in custody

Levesque received a second criminal

threatening charge in December 2009.

Levesque was found not

competent to stand trial on the criminal threatening charges,
but was found to be restorable to competency with medication.
3

Levesque was thereafter held at the New Hampshire State Prison
for Men (“NHSP”) in the Secure Psychiatric Unit (“SPU”).
Levesque also states that he spent some of his time at the NHSP
in “the hole.”
Levesque states that between December 8, 2009 and March 22,
2010, no effort was made to restore him to competency.

Instead,

Levesque was subjected to guardianship proceedings in the state
probate court.1

Levesque states that at those proceedings, the

state illegally obtained and used his medical records from
Vermont to secure his civil commitment and subjection to
guardianship.

After the hearing, Levesque was “condemnated to a

lifetime of servitude to poisonous pills for profit,” which the
court understands to mean that he was forced to take psychiatric
medication.
After the probate court proceedings, Levesque was returned
to SPU on March 22, 2010.

After seven months, Levesque was

transferred to New Hampshire Hospital (“NHH”).

Shortly

thereafter, Levesque escaped from NHH in an effort to go on
vacation in Florida.
to SPU.

On December 9, 2010, Levesque was returned

On December 16, 2010, Levesque was again placed at NHH,

1

Based on information submitted in a lawsuit brought by
Levesque and presently pending before the court, see Levesque v
New Hampshire, Civ. No. 09-cv-437-JL (doc. no. 56), the court is
aware that the Office of the Public Guardian was appointed as
Levesque’s guardian for purposes of, among other things, medical
decision-making. Levesque has appealed the guardianship order.
4

then returned to SPU on December 21, 2010.

At the time he filed

this action, Levesque expected to be returned to NHH in early
February 2011.
Levesque states he has been charged criminally with
escaping from the custody of NHH.2

Levesque asserts that, except

during his escape attempt, he has been continually incarcerated
since July 2009 and is concerned that his incarceration will
continue indefinitely.

Levesque states that he has been denied

a fair and speedy trial, presumably by virtue of the delays
attributable to the competency proceedings in the state courts
and the probate court proceedings.
Levesque’s complaint also asserts a number of complaints
regarding the conditions of his confinement.

These complaints

include: inappropriately housing him in “the hole” at the NHSP,
the failure of NHH to provide him with free postage for his
legal mail, the inability to make collect calls to his attorney
from the NHSP in 2009, and general assertions of discrimination
and harassment.

2

The petition is not clear as to the present status of the
criminal escape charge, and it is not clear whether or not
Levesque is being detained pursuant to the criminal charge.
Because it does not impact the result reached here, the court
presumes, for purposes of conducting this preliminary review,
that Levesque’s custody is pursuant to both the civil commitment
order and the criminal escape charge.
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III.
I.

ANALYSIS

Habeas Claims
Levesque’s petition fails to make entirely clear his

intended bases for relief.

Construing the petition liberally,

however, the court finds that Levesque seeks relief for the
following claims:
A.

Significant delays in the resolution of his criminal

cases, attributable to the competency proceeding and probate
court litigation, have violated Levesque’s Sixth Amendment right
to speedy and fair trials in those cases; and
B.

Levesque’s civil commitment was obtained in violation

of his Fifth Amendment privacy right to confidentiality in his
medical records.3
II.

Custody
To petition a federal court for habeas corpus relief from a

state court judgment, the applicant must be Ain custody in
violation of the Constitution or laws or treaties of the United
States.@

See Garlotte v. Fordice, 515 U.S. 39, 40 (1995) (citing

3

The claims as identified herein will be considered to be
the habeas claims raised in Levesque’s petition for all
purposes. If Levesque disagrees with this identification of his
claims, he must do so by properly asking this court to
reconsider this order and properly moving to amend the petition
to identify the claims he seeks to raise.
6

28 U.S.C. § 2254(a)).

Levesque states that he is being confined

by a bail detention order, and/or a committal order issued by
the probate court, pending resolution of his criminal charges.
“[F]ederal habeas corpus review may be available to
challenge the legality of a state court order of civil
commitment.”

Duncan v. Walker, 533 U.S. 167, 176 (2001).

Further, while pretrial habeas relief is not generally
available, pretrial habeas actions claiming a violation of
petitioner’s speedy trial right have been permitted where
petitioner seeks an immediate trial rather than dismissal of the
charges against him.

See In re Justices of the Super. Ct. Dep’t

of the Mass. Trial Ct., 218 F.3d 11, 17 n.5 (1st Cir. 2000)
(citing Braden v. 30th Judicial Circuit Ct. of Ky., 410 U.S.
484, 490-93 (1973)).
Levesque challenges his custody both pursuant to his civil
commitment, and his pretrial detention on speedy trial and fair
trial grounds.

Accordingly, the court finds that Levesque has

alleged sufficient facts, at this stage of the proceedings, to
assert that he is in custody pursuant to a state court judgment
for purposes of ' 2254(a).
III. Exhaustion
To be eligible for habeas relief, Levesque must show that,
for all of the claims raised, he has either exhausted all of his
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state court remedies or he is excused from exhausting those
remedies because of an absence of available or effective state
corrective processes.

See 28 U.S.C. ' 2254(a) & (b); Harrington

v. Richter, 131 S. Ct. 770, 787 (2011); Janosky v. St. Amand,
594 F.3d 39, 50 (1st Cir. 2010).

AA habeas petitioner in state

custody may not advance his or her constitutional claims in a
federal forum unless and until the substance of those claims has
been fairly presented to the state=s highest court.@
Maloney, 296 F.3d 48, 51 (1st Cir. 2002).

Barresi v.

A petitioner=s

remedies in New Hampshire are exhausted when the New Hampshire
Supreme Court has had an opportunity to rule on the claims.
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) (internal
quotation marks and citation omitted); Picard v. Connor, 404
U.S. 270, 277-78 (1971) (to satisfy exhaustion requirement
petitioner must have fairly presented the substance of his
federal claim to the state courts).

The purpose of a Afair

presentation@ requirement is to Aprovide the state courts with a
>fair opportunity= to apply controlling legal principles to the
facts bearing upon his constitutional claim.=@
8

Anderson v.

Harless, 459 U.S. 4, 6 (1982) (quoting Picard, 404 U.S. at 27677).

A habeas petitioner may fairly present a claim by doing

any of the following: A>(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; or
(4) claiming violation of a right specifically protected in the
federal constitution.=@

Dutil v. Murphy, 550 F.3d 154, 158 (1st

Cir. 2008).
Levesque has not asserted any facts indicating that he has
begun, much less completed, the process of exhausting his habeas
claims in the state courts.

Because Levesque’s assertions

include very recent events, the court finds that it is unlikely
that Levesque would have been able to fully litigate his claims
in the state courts, including the New Hampshire Supreme Court,
prior to filing this petition.

Accordingly, the petition is

dismissed without prejudice to refiling upon exhaustion of the
habeas claims therein.
IV.

Conditions of Confinement
A civil rights action is the proper means to challenge the

conditions of confinement, see White v. Gittens, 121 F.3d 803,
807 n.3 (1st Cir. 1997), whereas a federal habeas petition is
the appropriate means to challenge the actual fact or duration
9

of confinement.

See Heck v. Humphrey, 512 U.S. 477, 481 (1994).

Although this petition was filed seeking habeas corpus relief,
Levesque has challenged certain conditions of his confinement,
in addition to his habeas claims.
Habeas corpus relief is not available for Levesque’s
challenges to the legality of the conditions of his confinement
as those challenges are unrelated to the fact or length of
Levesque’s custody.

See Wolff v. McDonnell, 418 U.S. 539, 554

(1974); Preiser v. Rodriquez, 411 U.S. 475, 489-99 (1973).
Accordingly, Levesque’s claims challenging the conditions of his
confinement at the NHSP and NHH are appropriately considered as
civil rights claims under 42 U.S.C. § 1983 and are dismissed
from this action.
V.

Change of Address
As of the date of this Order, the docket in this case shows

Levesque’s address is at SPU.

In Levesque’s civil rights case

pending in this court, Levesque v. New Hampshire, 09-cv-437-JL,
Levesque filed a notice of change of address (Doc. No. 93) on
February 3, 2011, with an NHH address.4
4

The Clerk’s office is

The address provided to the court is:
Andre R. Levesque
7455
New Hampshire Hospital
APS Bldg. Unit D
36 Clinton St.
Concord, NH 03301
10

directed to update the docket in this action to reflect the NHH
address, and to send copies of this order to petitioner at both
addresses.

IV.

CONCLUSION

For the foregoing reasons, the habeas petition is dismissed
in its entirety, and the clerk’s office shall update Levesque’s
contact information and mail a copy of this order to the SPU and
NHH addresses listed for Levesque in this case and in Levesque
v. New Hampshire, Civ. No. 09-cv-437-JL.
SO ORDERED.

/s/Paul Barbadoro
Paul Barbadoro
United States District Judge

April 11, 2011
cc:

Andre R. Levesque, pro se

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