Beloin v. Hillsborough County Department of Corrections

Filing 11

FURTHER ORDER as to 1 Petition for Writ of Habeas Corpus, 8 Objection to Report and Recommendations and 10 Addendum. The Clerks Office is directed to re-docket Beloins filing currently docketed as an addendum to his object ion (doc. no. 10), as a motion to extend time to file an addendum to his objection (doc. no. 8). The motion (doc. no. 10), so construed, is granted. Further, Within 14 days of the date of this Order, Beloin must file his addendum to his objection to the November 10, 2011, Report and Recommendation (doc. no. 6) and Motion to Stay Petition pending state court exhaustion. So Ordered by Magistrate Judge Landya B. McCafferty.(cmp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Gerard Beloin
v.

Civil No. 11-cv-326-JL

Hillsborough County Department
of Corrections, et al.
O R D E R
Gerard Beloin filed a petition for a writ of habeas corpus
(doc. no. 1).

On November 10, 2011, the court issued a report

and recommendation (doc. no. 6) recommending that three of the
six claims in the habeas petition be dismissed, and finding that
Beloin had failed to demonstrate exhaustion of the three claims
remaining in the petition, and noting that Beloin had, in fact,
conceded in the petition that he had not exhausted his claims.
Also on November 10, 2011, the court issued an order (doc. no.
5) directing Beloin to: (1) move to stay his petition in this
court within thirty days of the date of the order; (2) file a
state court action to exhaust his claims within thirty days of
the date of the order; (3) provide the court with status updates
concerning his exhaustion efforts every ninety days while his
state court action was pending; and, after all state court

proceedings and appeals have ended, (4) file an amended petition
in this court demonstrating that his claims have been exhausted.
On November 7, 2011, Beloin filed a motion (doc. no. 4)
requesting that this court enjoin the prosecution of a civil
action against Beloin in the state court until his federal
habeas petition was decided.

In the November 10, 2011, report

and recommendation, the court recommended that the motion be
denied.
1.

Objection to the Report and Recommendation (doc. no. 8)
Beloin filed a timely objection (doc. no. 8) to the report

and recommendation.

For the most part, the assertions in

Beloin’s objection to the magistrate judge’s report and
recommendation address the substance of his habeas claims and
are thus properly before the district judge for consideration.
Beloin has not objected to the magistrate judge’s recommendation
that his motion for an injunction (doc. no. 6) be denied.
In his objection (doc. no. 8), Beloin makes one reference
to exhaustion of the claims, as follows: “All state court
actions in the case of State v Beloin 09-S-0850 have been
exhausted.

The Writ of Habeas Corpus was filed under that case

and that case only.

No further delay is warranted.

is what is requested.”

That relief

Beloin attached no documents to his

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objection to demonstrate that the claims in his petition have
been exhausted.
To the extent Beloin seeks to amend his petition to
demonstrate exhaustion, his assertion that the claims have been
exhausted, coupled with his previous statements indicating that
the claims have not been exhausted, does not suffice to
demonstrate that the petition is exhausted and should proceed.
As directed below, if Beloin has exhausted his federal habeas
claims in the state courts, he must provide documentation of
such exhaustion.

If petitioner has not actually exhausted his

federal habeas claims in the state courts, however, he must do
so if he intends to pursue his petition in this court.
2.

Motion to Extend Time (doc. no. 10)
Beloin has also filed a document (doc. no. 10) that has

been docketed as an addendum to Beloin’s objection to the report
and recommendation.

The court has reviewed the document and

finds that it is more appropriately characterized as a motion to
extend time to file an addendum to his objection.

Beloin claims

that his previously filed objection “lacked some crucial
arguments and points of law” and that the law library at the
prison was unavailable to him to use to prepare the addendum
from December 21, 2011, until January 5, 2012.

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Conclusion
The Clerk’s Office is directed to redocket Beloin’s filing
currently docketed as an addendum to his objection (doc. no.
10), as a motion to extend time to file an addendum to his
objection (doc. no. 8).

The motion (doc. no. 10), so construed,

is granted.
Beloin is further directed, as follows:
1.

Within 14 days of the date of this Order, Beloin must

file his addendum to his objection to the November 10, 2011,
Report and Recommendation (doc. no. 6).
2.

If Beloin has not exhausted his state court remedies

on all of the claims asserted in his § 2254 petition, he must:
(a) file a motion in this court within 14 days of the date of
this order, requesting that this action be stayed pending
exhaustion, and listing those claims that he intends to exhaust
in the state courts; and (b) initiate an action to exhaust his
claims in the state court within 14 days of the date of this
order.
3.

If Beloin has previously exhausted his state court

remedies on all of the claims asserted in his § 2254 petition,
Beloin must file in this court, within 30 days of the date of

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this order, those documents filed in or issued by the state
courts, including all relevant state court briefs, motions,
notices of appeal, and supreme court or superior court orders,
which demonstrate complete exhaustion of state court remedies.
4.

Petitioner’s failure to comply with this order will

result in this court’s recommendation that the petition be
dismissed for failing to demonstrate exhaustion.
SO ORDERED.

__________________________
Landya McCafferty
United States Magistrate Judge
January 11, 2012
cc:

Gerard Beloin, pro se

LBM:jba

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