Russo v. New Hampshire, State of
Filing
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ORDER granting 35 Motion to Extend Time; denying without prejudice 36 Motion to Clarify; denying without prejudice 37 Motion to Clarify; granting 39 Motion to Appoint Counsel; denying without prejudice 42 Motion to Clarify. So Ordered by Magistrate Judge Landya B. McCafferty.(gla)
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 five motions (doc. nos. 35-37, 39, and
42) filed by pro se petitioner, Amato John Russo.
Those motions
seek an extension of time (doc. no. 35); clarification of a
prior order and a pending report and recommendation (doc. nos.
36, 37, and 42)1; and appointment of counsel (doc. no. 39).
I.
Motion to Appoint Counsel (doc. no. 39)
Russo has requested that this court appoint counsel to
represent him for the purpose of assisting him in demonstrating
that he has previously exhausted his state court remedies on
each claim asserted in his federal habeas petition.
This court
has statutory authority, under the Criminal Justice Act (“CJA”),
18 U.S.C. § 3006A, to provide representation for any financially
1
The first motion to clarify (doc. no. 36) seeks to clarify
this court’s June 28, 2012, order (doc. no. 33) granting Russo’s
motion to amend his petition. The second and third motions to
clarify (doc. nos. 37 and 42) seek to clarify this court’s June
28, 2012, report and recommendation (doc. no. 32).
eligible person seeking relief under 28 U.S.C. § 2254, if the
court determines that the interests of justice require
representation.
See 18 U.S.C. § 3006A(a)(2)(B).
Russo is eligible for an appointment of counsel under 18
U.S.C. § 3006A(a)(2), as he is proceeding in this matter in
forma pauperis.
The court has reviewed the petition and Russo’s
numerous filings and further concludes that the interests of
justice warrant the requested appointment.
Russo has asserted
colorable claims for relief, and he has demonstrated difficulty
understanding the significance of this court’s orders and the
pending report and recommendation (doc. no. 32), which
recommends that his federal habeas petition be dismissed for
failure to demonstrate exhaustion of state court remedies.
The
motion to appoint counsel (doc. no. 39) is therefore granted.
Appointed counsel is specifically directed to: (1) evaluate
the record in this matter, review Russo’s state court
proceedings and the state court record, and file in this court,
within 120 days of the date of this order, an amended federal
habeas petition, including as exhibits thereto, documents
derived from the state court record demonstrating that Russo has
exhausted his state court remedies on all claims asserted in his
amended federal habeas petition, and also file within that time
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any further response to the pending report and recommendation
(doc. no. 32); and/or (2) file in this court, within 120 days of
the date of this order, a motion to stay the federal habeas
action, asserting that Russo intends to file an action in state
court to exhaust his state court remedies for all of the claims
asserted in his amended federal habeas petition.
II.
Motion to Extend Time (doc. no. 35)
Russo has moved for an extension of time in which to show
that he has exhausted his available and effective state court
remedies on all of his claims for federal habeas relief, as
required by 28 U.S.C. § 2254(b)(1).
On May 21, 2012, the court
granted Russo thirty days to file documents demonstrating that
he had exhausted his state court remedies, or, in the
alternative, to file a motion to stay this federal habeas
proceeding, if he intended to exhaust his claims in the state
courts.
See Order (doc. no. 25).
Russo failed to demonstrate
exhaustion as to any of his federal habeas claims in accordance
with this court’s orders; on that basis, this magistrate judge
recommended that Russo’s federal habeas petition be dismissed
without prejudice.
See Report and Recommendation (doc. no. 32).
That report and recommendation remains pending at this time.
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Russo now seeks an extension of time in which to
demonstrate exhaustion.
(doc. no. 35) is granted.
The motion for an extension of time
Russo shall have 120 days from the
date of this order to file an amended habeas petition
demonstrating exhaustion of each federal claim asserted therein.
The amended petition shall include as exhibits those portions of
the state court record that demonstrate that he has exhausted
his state remedies for each of his federal habeas claims.
The
court further grants Russo leave, within 120 days from the date
of this order, to file in this court a motion to stay this
federal habeas proceeding, as necessary, if he intends to
initiate a state court proceeding to exhaust his state court
remedies on all of his federal claims.
In addition, the court extends for 120 days from the date
of this order, the time in which Russo may file a further
response to the pending report and recommendation (doc. no. 32).
Thereafter, the court will determine whether reconsideration of
the report and recommendation is necessary.
III. Motions to Clarify (doc. nos. 36, 37 and 42)
The motions to clarify request that this court clarify its
June 28, 2012, order granting Russo’s motion to amend his
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federal habeas petition (doc. no. 33), and the June 28, 2012,
report and recommendation (doc. no. 32), which recommended that
Russo’s federal habeas petition be dismissed without prejudice
for failure to demonstrate exhaustion of his state court
remedies.
The court anticipates that Russo’s questions
regarding the order and the report and recommendation will be
fully addressed by appointed counsel.
Accordingly, the court
denies all three motions (doc. nos. 36, 37, and 42) without
prejudice to renewal should appointed counsel deem necessary.
Conclusion
For the foregoing reasons, the court issues the following
rulings on pending motions:
1.
granted.
The motion for appointment of counsel (doc. no. 39) is
The clerk shall take the steps necessary to obtain
appointed counsel for Russo pursuant to the CJA, 18 U.S.C.
§ 3006A(a)(2)(B), consistent with the CJA plan.
2.
The motion for an extension of time (doc. no. 35) is
granted, to the extent that Russo shall have 120 days from the
date of this order: (a) to file an amended federal habeas
petition, with exhibits, documenting that Russo has exhausted
his state court remedies on all claims asserted in his amended
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federal habeas petition; (b) to file a further response to the
pending report and recommendation (doc. no. 32); and/or (c) to
move to stay the federal habeas petition if he intends to
proceed in state court to exhaust all of his state court
remedies.
3.
The motions to clarify (doc. nos. 36, 37, and 42) are
denied without prejudice to renewal should appointed counsel
deem necessary.
SO ORDERED.
__________________________
Landya McCafferty
United States Magistrate Judge
August 17, 2012
cc:
Amato John Russo, pro se
LBM:nmd
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