Ali v. NH State Prison, Warden

Filing 16

ORDER - Ali to file either an amended petition, a motion to stay, or a motion to drop Claims 5 and 6(h) within thirty days of the date of this order. So Ordered by Magistrate Judge Landya B. McCafferty.(ko)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Dominic S. Ali
v.

Civil No. 12-cv-185-JL

Edward Reilly, Northern New Hampshire
Correctional Facility Warden1
O R D E R
Dominic Ali has filed an Amended Petition (doc. no. 14) and
an addendum to the petition (doc. no. 15), in response to this
court’s order directing him to show that he had exhausted his
state court remedies as to the claims asserted in his § 2254
petition.

See Ali v. Gerry, No. 12-CV-185-JL (doc. no. 7), 2012

WL 4848889 (D.N.H. Oct. 10, 2012).

The matter is here for a

determination of whether Ali’s claims are facially valid and may
proceed.

See Rule 4 of the Rules Governing Section 2254 cases

in the United States District Courts (“§ 2254 Rules”).
The report and recommendation issued this date (“R&R”)
finds that Ali’s petition is a “mixed” petition, in that it
includes two claims (Claims 5 and 6(h)) as to which Ali has not
demonstrated exhaustion of his state court remedies, along with

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Ali’s current custodian is Northern New Hampshire
Correctional Facility Warden Edward Reilly, who is the proper
respondent. See Rule 2 of the Rules Governing Section 2254
cases in the United States District Courts (“§ 2254 Rules”).

a set of claims as to which he has demonstrated exhaustion.

As

explained in the R&R, Ali’s § 2254 petition cannot proceed in
federal court at this time.

To maintain this action, Ali must

choose whether to drop the unexhausted Claims 5 and 6(h) if he
cannot otherwise demonstrate that he has exhausted those claims.
Alternatively Ali may retain Claims 5 and 6(h) by seeking a stay
of this action and returning to the state courts to exhaust his
remedies on those claims.
Conclusion
1.

Within thirty days of the date of this order, Ali is

granted leave to file in this court:
A.
An amended § 2254 petition, including additional
documents from the New Hampshire Supreme Court (“NHSC”)
record as exhibits (such as, for example, all of the pages
of the notice of appeal filed in Ali’s criminal case, where
the record in this court includes only the odd-numbered
pages from that document), if those exhibits show that Ali
has already presented Claims 5 and 6(h) to the NHSC;
B.
A motion to stay this action, if Ali intends to
litigate, during the pendency of the stay in this case,
proceedings in the state courts to exhaust his state court
remedies on Claims 5 and 6(h); or
C.
A motion to amend the § 2254 petition to drop
Claims 5 and 6(h), if Ali is willing to forego seeking
federal habeas relief at this time and in any second or
successive § 2254 petition filed in the future, based on
the assertions in Claims 5 and 6(h).
2.

Should Ali fail to file either an amended petition, a

motion to stay, or a motion to drop Claims 5 and 6(h), this

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court may recommend that all of the claims asserted in Ali’s
§ 2254 petition be dismissed, without prejudice, for failure to
demonstrate exhaustion of each claim therein.

See 28 U.S.C.

§ 2254(b).
SO ORDERED.

__________________________
Landya McCafferty
United States Magistrate Judge
May 2, 2013
cc:

Dominic S. Ali, pro se

LBM:nmd

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