Thompson v. Arpaio et al

Filing 5

ORDER directing petitioner to amend 1 Petition for Writ of Habeas Corpus. ( Amended Pleadings due by 12/1/2011.) So Ordered by Magistrate Judge Landya B. McCafferty.(vln)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Shane A. Thompson
v.

Civil No. 11-cv-220-SM

Joe Arpaio, Sheriff, Maricopa
County Sheriff’s Department
O R D E R
Shane Thompson, who is currently incarcerated in Mesa,
Arizona, filed a petition for a writ of habeas corpus, pursuant
to 28 U.S.C. § 2254, in the United States District Court for the
District of Arizona (doc. no. 1).

Because the petition alleges

that the New Hampshire Adult Parole Board (“NHAPB”) is violating
Thompson’s rights in regard to a New Hampshire sentence, the
District Court in Arizona directed that the petition be
transferred to this court (doc. no. 3).
Thompson alleges that his present detention pursuant to a
parole violation warrant violates his Fourteenth Amendment due
process rights.

The matter is before the court for preliminary

review to determine whether the petition is facially sufficient
to proceed.

See Rule 4 of the Rules Governing Section 2254

Cases in the United States District Courts (“§ 2254 Rules”);
United States District Court District of New Hampshire Local
Rule (“LR”) 4.3(d)(2) (authorizing magistrate judge to conduct
preliminary review of pro se filings by prisoners).

Standard of Review
Pursuant to LR 4.3(d)(2) and § 2254 Rule 4, when an
incarcerated petitioner commences a habeas action, the
magistrate judge conducts a preliminary review of the petition.
In conducting a preliminary review, the magistrate judge
construes pro se pleadings liberally, however inartfully
pleaded, to avoid inappropriately stringent rules and
unnecessary dismissals.

See Erickson v. Pardus, 551 U.S. 89, 94

(2007) (per curiam) (following Estelle v. Gamble, 429 U.S. 97,
106 (1976), to construe pleadings liberally in favor of pro se
party); Castro v. United States, 540 U.S. 375, 381 (2003).

This

review insures that pro se pleadings are given fair and
meaningful consideration.
Section 2254 Rule 4 requires a judge to promptly examine
any petition for habeas relief.

In undertaking this review, the

court applies a standard analogous to that used in reviewing a
motion to dismiss filed under Fed. R. Civ. P. 12(b)(6).

The

court decides whether the complaint contains sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face and cognizable in a petition for federal
habeas relief.

See Love v. Butler, 952 F.2d 10, 15 (1st Cir.

1991) (habeas petition was properly dismissed on the merits sua
sponte, where petitioner’s arguments were readily resolved
2

without resort to transcript, and district court had access to
pertinent documents filed with petition including parties’ state
court briefs and state court decision); see also Ashcroft v.
Iqbal, 556 U.S. 662, ___, 129 S. Ct. 1937, 1949 (2009) (standard
of review applicable in determining if complaint states viable
claims); Day v. McDonough, 547 U.S. 198, 209-10 (2006)
(“district courts are permitted, but not obliged, to consider,
sua sponte, the timeliness of a state prisoner’s habeas
petition”).
Where the petition does not plainly entitle petitioner to
relief, the court conducting the preliminary review may direct
plaintiff to amend his petition prior to completing that review.
See LR 4.3(d)(2)(B) (authorizing magistrate judge conducting
review of pro se prisoner filings to grant party leave to
amend).

After conducting a preliminary review of a habeas

petition must dismiss the petition “[i]f it plainly appears from
the petition and any attached exhibits that the petitioner is
not entitled to relief.”

See § 2254 Rule 4.
Background

Shane Thompson was convicted of burglary and a weapon
charge on January 29, 1994.

He was sentenced to serve prison

terms of 3 - 6 years on one charge, and 7½ - 15 years on the

3

other.1

At some point, Thompson was released on parole.

Thompson’s parole supervision was transferred to Arizona
pursuant to an agreement between the appropriate authorities of
the two states.
On November 6, 2010, Thompson was arrested in Arizona on
state criminal charges.

On November 10, 2010, a “parole

violation warrant” was placed on Thompson.

Thompson describes

the warrant as an “Interstate Compact Agreement type warrant”
from New Hampshire.2

Thompson states that Arizona has, since his

2010 arrest, returned responsibility for and authority over
Thompson’s parole supervision to New Hampshire authorities.3

1

Thompson notes that he received “3 off the bottom and 5 off
the top” of the 7½ - 15 year sentence, which may (or may not)
mean that a portion of his second sentence was suspended. The
exact contours of his original sentence are not relevant to the
court’s preliminary review in this matter and the court need
not, therefore, decipher Thompson’s description of his sentence
at this juncture.
2

Pursuant to the Interstate Agreement on Detainers (“IAD”),
a state with pending charges against an inmate who is serving a
sentence in another state may place a “detainer” on that inmate
to ensure that the inmate is not released before the charging
state has the opportunity to transfer the inmate back to the
requesting state for prosecution. See N.H. Rev. Stat. Ann. §
616-A:1. The court presumes that Thompson, if not specifically
subject to the IAD, is comparing his detention pursuant to the
NHAPB warrant to detention pursuant to an IAD detainer lodged to
obtain the presence of a prisoner for an untried offense.
3

Thompson appears to be in Arizona under the auspices of the
Interstate Corrections Compact (“ICC”), pursuant to which
inmates sentenced in one state may serve their sentence in
another state. Parole status of a New Hampshire inmate serving
his sentence in another state is controlled by New Hampshire
4

Thompson states, therefore, that his parole violation must be
adjudicated by the NHAPB.

Thompson states that he has been

detained in Arizona since November 10, 2010, for an alleged
violation of his New Hampshire parole.

In that time, Thompson

has not been afforded any hearing to either adjudicate the
parole violation or to allow him bail pending such adjudication.
Thompson opines that, had his parole violation been promptly
adjudicated, he would have served ninety days for the violation
and would already have been rereleased on parole.
The Claim4
Thompson claims that his present incarceration pursuant to
a New Hampshire parole violation warrant violates the Fourteenth
Amendment’s Due Process Clause, as Thompson has been afforded
neither the opportunity to have bond set on the warrant nor a
hearing to adjudicate the parole violation.

correctional authorities. See Reid v. Stanley, No. 04-CV-369JD, 2006 WL 1875335, *1 (D.N.H. July 6, 2006). Therefore, New
Hampshire has had control over Thompson’s parole status. It
appears that while Arizona had agreed to supervise Thompson
while he was released on parole, the state has now rescinded
that agreement and returned responsibility for Thompson’s parole
supervision to the New Hampshire Department of Corrections.
4

The claim, as identified here, will be considered to be the
claim raised in the petition for all purposes. If Thompson
disagrees with this identification of the claim, he must do so
by properly moving to amend his petition.
5

Discussion
I.

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

state court judgment, the applicant must be “in 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 28 U.S.C. § 2254(a)).

Thompson asserts that he was on

parole from a New Hampshire sentence and is now incarcerated
pursuant to a parole violation warrant arising out of that
sentence.

Accordingly, Thompson is in custody for purposes of

§ 2254(a).
II.

Exhaustion
To be eligible for habeas relief, Thompson must show that

the claim raised in his petition has either been exhausted by
his pursuit of all of his state court remedies, or that 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); see also Adelson v. DiPaola, 131 F.3d
259, 261 (1st Cir. 1997) (explaining exhaustion principle).

“A

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.”

Barresi v. Maloney, 296 F.3d 48, 51 (1st

6

Cir. 2002).

A petitioner=s remedies in New Hampshire are

exhausted when the New Hampshire Supreme Court (“NHSC”) has had
an opportunity to rule on the claims.

See Lanigan v. Maloney,

853 F.2d 40, 42 (1st Cir. 1988).
“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
quotations and citation omitted).

The purpose of a “fair

presentation” requirement is to “provide the state courts with a
‘fair opportunity’ to apply controlling legal principles to the
facts bearing upon his constitutional claim.’”

Anderson v.

Harless, 459 U.S. 4, 6 (1982) (citation omitted).

A habeas

petitioner may fairly present a claim by doing any of the
following:

“‘(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) (citation omitted).

7

A petitioner may be excused from the exhaustion requirement
where there are no effective state court processes available to
him, or where “circumstances exist that render such process
ineffective to protect the rights of the applicant.”
U.S.C. § 2254(b)(1)(B).

See 28

Thompson’s petition does not indicate

that state court processes are either unavailable to him or
ineffective to protect his rights.
III. Order to Amend
Because Thompson’s petition fails to demonstrate that his
claim has been exhausted in the state courts, the court will
provide Thompson with the opportunity to amend his petition to
so demonstrate.

If, as it appears, Thompson has not yet

exhausted his claim, he may request that this petition be stayed
while he pursues exhaustion in the state courts.
Conclusion
Thompson is directed to amend his complaint as follows:
1.

If Thompson has exhausted the Fourteenth Amendment

claim raised in this petition, within thirty days of the date of
this order, Thompson must demonstrate that he has exhausted his
claim, including the federal nature of his claim, in the state
courts of New Hampshire.

To make this showing, petitioner

should file, in this court, a state court opinion, an NHSC
notice of appeal, or any other pertinent document filed in the
8

NHSC which demonstrates that he has presented his Fourteenth
Amendment claim relating to his current detention on an NHAPB
warrant to the state courts, including the NHSC.
2.

If Thompson has not yet exhausted his claim in the

state courts but intends to do so, within thirty days of the
date of this order, Thompson shall file a motion requesting that
this action be stayed so that he may exhaust his federal
constitutional claim in the state courts.
3.

If Thompson requests a stay, he must initiate

proceedings to exhaust the claim in his petition in the state
courts within thirty days of the date of this order and must
notify this court that he has done so within ten days of that
filing.

While his claim is pending in the state courts,

Thompson must notify this court every ninety days as to the
status of his exhaustion efforts.
4.

Once Thompson exhausts his claim in the state courts,

Thompson may, within thirty days of the final decision of the
NHSC, file a motion to lift the stay in this matter and file an
amended petition demonstrating that his federal constitutional
claim has been fully exhausted in the state courts.

To make

this showing, petitioner should file, with his amended § 2254
petition, the notice of appeal filed in the NHSC, any briefs or
other documents filed in the NHSC, and any decision by any state

9

court, which demonstrate that he has exhausted his federal
claims in the state courts.
Thompson’s failure to comply with this order will result in
a recommendation that this action be dismissed without prejudice
for failing to demonstrate exhaustion.

See 28 U.S.C.

§ 2254(b)(1)(A); § 2254 Rule 4.
SO ORDERED.

_______________________________
Landya B. McCafferty
United States Magistrate Judge
Date:
cc:

November 1, 2011

Shane Thompson, pro se

LBM:jba

10