Beloin v. Hillsborough County Department of Corrections

Filing 5

ORDER INSTRUCTING PETITIONER TO AMEND 1 Petition for Writ of Habeas Corpus to demonstrate exhaustion of federal claims. Amended Petition due in 30 days from the date of this order (December 12, 2011).Status Reports are due every 90 days thereafter and this matter will be STAYED pending state court exhaustion all of the federal claims. Failure to amend petition or comply could result in dismissal. 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

Richard Gerry, Warden,
New Hampshire State Prison
O R D E R
Gerard Beloin has filed a petition for a writ of habeas
corpus, pursuant to 28 U.S.C. § 2254 (doc. no. 1) and
petitioner’s “Motion for Permissive Joinder,” (doc. no. 3).

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).
I.

Motion for Permissive Joinder (doc. no. 3)
Petitioner has filed a motion seeking “permissive joinder”

(doc. no. 3).

Construing this motion as a motion to amend the

initial habeas petition (doc. no. 1), the court understands this
motion to request the following relief:



Petitioner seeks to substitute the New Hampshire
State Prison for the Hillsborough County Department
of Corrections as the respondent in this matter.



Petitioner seeks to clarify claims asserted in his
initial petition (doc. no. 1).



Petitioner seeks to add a state law constitutional
claim to the petition.

The motion (doc. no. 3), as construed, is GRANTED, for reasons
explained herein and in the Report and Recommendation issued
this date.
I.

Respondent
At the time his petition was initially filed, Beloin named

the Hillsborough County Department of Corrections, where he was
then incarcerated, as the respondent.

Beloin is now

incarcerated at the New Hampshire State Prison for Men.
The proper respondent to a federal habeas petition is the
petitioner’s custodian; the appropriately named custodian is the
warden of the facility in which petitioner is detained.

See

Vasquez v. Reno, 233 F.3d 688, 691 (1st Cir. 2000) (proper
custodian in habeas action is the warden of the facility where
petitioner is being held); see also 28 U.S.C. § 2243 (writ of

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habeas corpus granted by a federal court “shall be directed to
the person having custody of the person detained”).
Accordingly, the appropriate respondent to this action is
Richard Gerry, the warden of the New Hampshire State Prison.

In

an Order issued simultaneously with this Report and
Recommendation, the Clerk is directed to correct the docket
accordingly.
II.

Exhaustion of Federal Habeas Claims
As fully explained in the Report and Recommendation issued

simultaneously with this Order, the court finds that Beloin has
asserted three federal habeas claims pursuant to § 2254, which
are denominated as Claims 1-3 in the Report and Recommendation.
Beloin has failed to demonstrate, however, that those claims
have been exhausted in the state courts, as required by §
2254(b), to allow this action to proceed at this time.
Accordingly, to avoid a recommendation that his § 2254 petition
be dismissed for failure to demonstrate exhaustion, Beloin shall
exhaust those claims and may request a stay of this action for
that purpose, in the following manner:
1.

Beloin must initiate state court proceedings to

exhaust the federal claims for habeas relief in his petition

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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.
2.

Beloin may, within thirty days of the date of this

Order, file a motion in this court requesting that this action
be stayed pending exhaustion of his federal habeas claims in the
state courts.
3.

While Beloin’s claims are pending in the state courts,

he must file a status report in this court every ninety days,
describing the status of his state court litigation.
4.

Once Beloin has fully exhausted his claims in the

state courts, Beloin must, within thirty days of the date of a
final New Hampshire Supreme Court order on his claims, file in
this court: (A) a motion to lift the stay in this matter; and
(B) an amended petition showing that his federal habeas claims
have been fully exhausted in the state courts.

To make this

showing, petitioner must file, with his amended § 2254 petition,
any pertinent notice of appeal, brief, or other pleadings or
motions filed in the New Hampshire Supreme Court, and any
filings made in, as well as any orders by, any state court,
which demonstrate exhaustion of his federal claims.
Beloin’s failure to comply with this Order will result in a
recommendation that this action be dismissed without prejudice

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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: November 10, 2011
cc:

Gerard Beloin, pro se

LBM:jba

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