Ali v. NH State Prison, Warden

Filing 10

ORDER granting 8 Motion to Amend 1 Petition for Writ of Habeas Corpus. So Ordered by Magistrate Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Dominic S. Ali
v.

Civil No. 12-cv-185-JL

Richard M. Gerry, Warden,
New Hampshire State Prison
O R D E R
Before the court is Ali’s motion to amend (doc. no. 8) his
petition for writ of habeas corpus filed pursuant to 28 U.S.C.
§ 2254.

Ali seeks leave to add allegations to and clarify an

ineffective assistance of counsel claim in the petition.

The

motion is granted, and the facts and new claims asserted in the
motion, summarized below, are added to Ali’s § 2254 petition.
For reasons stated below, the court finds that Ali has not
yet demonstrated exhaustion of his state court remedies, and
directs Ali to so demonstrate by November 26, 2012, to comply
with this order and the court’s October 10, 2012, Order (doc.
no. 7).

In the alternative, Ali may timely file a motion to

extend the deadline for demonstrating exhaustion, or a motion to
stay his federal habeas petition in order to exhaust his claims,
on or before November 26, 2012.

I.

Facts and Claims Added to Petition
A.

Facts Added to Petition

The following facts asserted in the motion to amend (doc.
no. 8) are added to Ali’s § 2254 petition (doc. no. 1)1:
Attorney Anthony Introcaso was appointed to represent Ali
after trial counsel from the New Hampshire Public Defender’s
Office was allowed to withdraw from the case.

Before trial

counsel withdrew, her office had prepared a memorandum for use
in Ali’s sentencing.

The memorandum proposed a sentence for Ali

that was substantially less than that requested by the state.
The memorandum included a discussion of mitigating factors to
support the imposition of the proposed sentence and also noted
the immigration consequences of a prison sentence for Ali.

Ali

alleges that Attorney Introcaso did not review the memorandum or
make the recommendations and information contained therein to
the trial judge, and did not prepare or offer the court any
sentencing proposal on Ali’s behalf.
Ali further asserts that Attorney Introcaso did not review
the probation office’s presentence investigation report (“PSI”),
and that he failed to give Ali a copy of the PSI prior to the
sentencing hearing.

Ali asserts that the trial court never

1

Ali has asserted in a separate filing that Attorney Ghazi
Al-Marayati was appointed to advise Ali on his pro se motion for
a new trial, and that Ali proceeded without counsel in his state
habeas petition. See Objection (doc. no. 9). Ali’s
clarification regarding Attorney Al-Marayati’s role is noted.
2

verified whether Ali had read and discussed the report with
Attorney Introcaso.

Ali asserts that the PSI falsely stated

that he had two prior convictions, and that the PSI’s sentencing
recommendation was based in part on charges or allegations of
wrongdoing of which Ali was not convicted, or as to which Ali’s
conviction was vacated on appeal.

Ali asserts that the trial

judge based Ali’s sentence on the PSI, and did not make any
findings independent of the PSI.
Additionally, Ali asserts that Attorney Introcaso knew that
trial counsel had never advised Ali before trial of the
improbability of acquittal and the benefits of accepting a plea
bargain.

Ali further alleges that Attorney Introcaso visited

him in jail in September 2008 and told him, “five years is a
walk on the beach in the state prison,” his trial attorneys were
young and inexperienced, the prosecutor engaged in misconduct
and discriminated against “blacks,” and the trial judge was both
the prosecutor’s friend and was also prejudiced.
B.

Claims Added to Petition

Claim 7, identified in this court’s October 10 Order (doc.
no. 7), is modified by facts asserted in the motion to amend
(doc. no. 8).2

The additions to Claim 7 are underlined:

2

The remaining claims identified in the order (doc. no. 7)
and the report and recommendation (doc. no. 6) issued on October
10, 2012, are not altered by the motion to amend (doc. no. 8) or
by this order.
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7.
Counsel appointed for the sentencing proceeding,
Attorney Introcaso, provided ineffective assistance, in
violation of Ali’s Sixth Amendment right, in that counsel:
A.
Failed to challenge the PSI’s incorrect statement
of Ali’s prior criminal record, which improperly
listed two prior convictions, and inaccuracies
regarding Ali’s current convictions;
B.
Failed to provide the PSI to Ali prior to the
sentencing hearing;
C.
Failed to assert as a mitigating factor during
sentencing that Ali had received ineffective
assistance of counsel at trial, insofar as Attorney
Introcaso knew, but failed to tell the trial judge,
that trial counsel never advised Ali before trial of
the improbability of acquittal and the benefits of
accepting a plea bargain; and
D.
Did not review the sentencing recommendations
prepared by Ali’s trial counsel prior to the
sentencing hearing, and did not prepare or offer to
the court any sentencing proposal on Ali’s behalf.
II.

Exhaustion
Neither Ali’s motion to amend (doc. no. 8), nor any other

filing in this case, includes as exhibits any documents
demonstrating that he has exhausted his state court remedies for
any of his claims for federal habeas relief.

Thus, Ali has not

yet complied with this court’s October 10, 2012, Order (doc. no.
7), directing him to file such documents by November 26, 2012,
to demonstrate exhaustion.
Conclusion
For the foregoing reasons, the court grants the motion to
amend the petition (doc. no. 8), and adds to the petition the
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factual allegations and claims asserted in that motion.

Ali is

directed to file the specific documents listed in the October 10
Order (doc. no. 7), by November 26, 2012, and is warned that his
failure to do so may result in an order dismissing his petition,
pursuant to 28 U.S.C. § 2254(b).

In the alternative, Ali may

file by November 26, 2012, a motion to extend the November 26
deadline, or a motion to stay this petition, if he intends to
return to the state courts to exhaust his federal habeas claims.
SO ORDERED.

__________________________
Landya McCafferty
United States Magistrate Judge
November 5, 2012
cc:

Dominic S. Ali, pro se

LBM:nmd

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