Russo v. New Hampshire, State of

Filing 25

ORDER: The Court directs Petitioner to prove that he has exhausted his state court remedies within 30 days as outlined in this order. (Notice of Compliance Deadline set for 6/20/2012.) So Ordered by Magistrate Judge Landya B. McCafferty.(jab)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Amato John Russo
v.

Civil No. 11-cv-587-SM

Warden, New Hampshire State Prison

O R D E R
Before the court are the documents (doc. nos. 19-24) that
Amato John Russo has filed in response to an order issued on
April 9, 2012 (doc. no. 18) (“April 9 Order”).

Those documents

include a filing docketed as a motion to amend Russo’s habeas
petition (doc. no. 23).

The April 9 Order directed Russo to

show that he had exhausted his state court remedies, and
provided him with an opportunity to add allegations to flesh out
his federal due process claims of malicious prosecution and
prosecutorial misconduct.

The petition remains before this

magistrate judge pending an initial screening to determine
whether the claims stated in the petition are facially valid and
may proceed.

See Rule 4, Rules Governing Section 2254 cases in

the United States District Courts (“§ 2254 Rules”).
None of the documents filed by Russo complies with the
aspect of the April 9 Order directing him to demonstrate

exhaustion.

The April 9 Order directed Russo to file copies of

documents from the New Hampshire Supreme Court (“NHSC”) record,
showing that Russo had previously challenged his February 2009
conviction and October 2009 sentence in the NHSC on the same
bases asserted in his federal habeas petition.

Russo did not

file any relevant portions of the NHSC record or any state court
orders, as directed in the April 9 Order.

Rather, Russo’s

filings since April 9 (doc. nos. 19-24) relate to the portion of
the order providing him with an opportunity to add allegations
to explain the nature of his claims of malicious prosecution and
prosecutorial misconduct; the filings at issue consist of
arguments and exhibits relating to the merits of his claims, and
his assertion of innocence.
Nothing filed by Russo demonstrates the truth of his
assertion that he has exhausted his state court remedies.

He

has filed no documents showing that he has already challenged
his conviction and sentence in a post-trial state court
proceeding raising the same federal constitutional claims that
he asserts in his federal habeas petition.
No federal court judge will review the constitutionality of
Russo’s conviction and sentence until Russo files the portions
of the New Hampshire Supreme Court record that the April 9 Order
directed him to file in this court.

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See 28 U.S.C. § 2254(b)(1);

see also Coningford v. Rhode Island, 640 F.3d 478, 482 (1st Cir.
2011).

This court will not rule on Russo’s motion to amend

(doc. no. 23), nor direct service of his petition, nor consider
his habeas claims on their merits, until Russo effectively
substantiates his assertion that he has exhausted his state
court remedies as to each federal claim asserted in his
petition.
Russo has failed to meet the May 9, 2012, deadline
established by the April 9 Order, and he has not filed any
motion for an extension of that deadline.

Because Russo is

proceeding without a lawyer, however, this court will extend the
deadline sua sponte, by providing Russo with an additional
thirty days to file relevant portions of the NHSC record to
demonstrate exhaustion.

Within thirty days of the date of this

order, Russo may also file in this court a motion to stay this
case if Russo seeks an opportunity to return to the state courts
to exhaust his state court remedies on the federal due process
claims included in his habeas petition, if they are not already
exhausted.
Conclusion
1.

Within thirty days of the date of this order:

(a)

Russo must prove that he has exhausted his state court remedies
by filing in this court relevant portions of the New Hampshire

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Supreme Court record (as specified below), or (b) Russo may file
a motion to stay his federal habeas petition, if he intends to
return to the state courts to exhaust his state court remedies.
If Russo seeks to return to the state courts to exhaust his
state court remedies, he must initiate such litigation in the
state court within thirty days of the date of this order.
2.

To prove that he has exhausted his state court

remedies, Russo shall file the following documents within thirty
days of the date of this order:




all appendices to such notices filed by Russo in the
New Hampshire Supreme Court after the February 2009
trial,



any briefs, motions, or other documents that Russo
filed in the New Hampshire Supreme Court relating to
his solicitation of witness tampering conviction or
the extended term of imprisonment imposed in October
2009, and



3.

all notices of appeal that he filed in the New
Hampshire Supreme Court after his conviction on the
charge that he solicited Dave Ligocki to tamper with a
witness,

any state court orders addressing the federal
constitutional claims asserted in his petition for
federal habeas relief.
Russo may file in this court a motion to stay, within

thirty days of the date of this order, requesting that the court
stay further proceedings on his federal habeas petition.

In

such a motion, Russo must state his intention to file within

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thirty days a proceeding designed to exhaust his state court
remedies on all of his federal constitutional claims.
4.

If Russo cannot meet the deadlines set forth in this

order, Russo must file a motion showing why he requires an
extension of the deadline or other appropriate relief.
5.

Russo’s failure to comply with this order will result

in a recommendation that the petition be dismissed without
prejudice, pursuant to 28 U.S.C. § 2254(b)(1).
SO ORDERED.
__________________________
Landya McCafferty
United States Magistrate Judge
May 21, 2012
cc:

Amato John Russo, pro se

LBM:nmd

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