Brown v. NH State Prison, Warden
Filing
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ORDER Directing Clerk to Make Service. Respondent is directed to answer or to otherwise plead within thirty days of the date of this Order. So Ordered by Magistrate Judge Landya B. McCafferty.(cmp)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Michael Brown
v.
Civil No. 11-cv-246-JL
Richard M. Gerry, Warden,
New Hampshire State Prison
O R D E R
Michael Brown has filed a petition for a writ of habeas
corpus (doc. no. 1) challenging the constitutionality of his
September 21, 2007, conviction on criminal charges in the
Rockingham County Superior Court.
The matter is before the
court for preliminary review to determine whether Brown’s habeas
petition, filed pursuant to 28 U.S.C. § 2254, is facially valid
and may proceed.
See Rule 4 of the Rules Governing Section 2254
cases in the United States District Courts (“§ 2254 Rules”).
Background
On September 21, 2007, Michael Brown was convicted of
attempted murder and witness tampering after a jury trial.
He
was sentenced to a 10 - 40 year prison term coupled with a
concurrent 3½ - 7 year prison term.
After his conviction, Brown
filed a motion for a new trial in the trial court which was
denied on February 9, 2009.
Brown appealed both his conviction
and the denial of his motion for a new trial, and the New
Hampshire Supreme Court (“NHSC”) consolidated the two appeals.
On June 30, 2010, the NHSC affirmed Brown’s conviction and the
denial of his motion for a new trial.
This petition followed.
In the instant petition, Brown raises three claims for
relief, all alleging that he received ineffective assistance of
counsel at trial, in violation of the Sixth and Fourteenth
Amendments to the United States Constitution.
trial counsel was ineffective for:
Brown claims that
(1) failing to request a
jury instruction on lesser included offenses; (2) failing to
request a jury instruction on the affirmative defense of
voluntary renunciation; and (3) failure to object to the
admission at trial of petitioner’s entire videotaped statement
to the police, which included highly prejudicial and excludable
statements.
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)); Maleng v. Cook, 490 U.S. 488, 49091 (1989).
Brown is presently serving a prison sentence
pursuant to the challenged conviction and has thus satisfied the
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statutory “in custody” requirement to allow this matter to
proceed.
II.
Exhaustion
To be eligible for habeas relief, Brown must show that he
has exhausted 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
petitioner’s remedies in New Hampshire are exhausted when the
state’s highest court has had an opportunity to rule on the
petitioner’s claims.
See Lanigan v. Maloney, 853 F.2d 40, 42
(1st Cir. 1988) (“habeas corpus petitioner must have presented
the substance of his federal constitutional claim[s] 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 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).
“In order to . . . present the federal
claim fairly and recognizably to the state courts, . . . 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
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the existence of the federal question.’”
Clements v. Maloney,
485 F.3d 158, 162 (1st Cir. 2007) (internal citations omitted));
Josselyn v. Dennehy, 475 F.3d 1, 3 (1st Cir. 2007).
Brown’s petition sufficiently shows that he presented to
the NHSC the ineffective assistance of counsel claims raised in
his habeas petition before this court, including the federal
nature of those claims.
Accordingly, Brown has demonstrated
that the claims here have been exhausted and may proceed.
Conclusion
The petition shall be served upon respondent Richard Gerry,
Warden of the New Hampshire State Prison.
Respondent shall file
an answer or other pleading in response to the allegations made
therein.
See § 2254 Rule 4 (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 General, as provided in the Agreement on
Acceptance of Service, copies of this Order and Brown’s habeas
petition (doc. no. 1).
Respondent is directed to answer or to otherwise plead
within thirty days of the date of this Order.
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The answer shall
comply with the requirements of § 2254 Rule 5 (setting forth
contents of the answer).
SO ORDERED.
_______________________________
Landya B. McCafferty
United States Magistrate Judge
Date: November 1, 2011
cc:
Thomas J. Gleason, Esq.
LBM:jba
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