Ali v. NH State Prison, Warden
Filing
32
ORDER granting 27 Motion to Amend 14 Petition for Writ of Habeas Corpus - 2254. So Ordered by Magistrate Judge Landya B. McCafferty. Amended Pleadings due by 7/16/2013.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Dominic S. Ali
v.
Civil No. 12-cv-185-JL
Edward Reilly, Warden, Northern
New Hampshire Correctional Facility
O R D E R
Before the court is Dominic Ali’s Motion to Amend (doc. no.
27) his § 2254 petition, which challenges the validity of Ali’s
2008 state court conviction and sentence for second degree
assault.
The motion seeks to add new allegations and legal
arguments relating to existing claims in the petition (Claims
2(a) and 2(b)), and also adds two new grounds for federal habeas
relief.
Respondent did not file an objection.
Discussion
I.
Amendment as of Right
A petition for federal habeas relief may be amended “as
provided in the rules of procedure applicable to civil actions.”
28 U.S.C. § 2242.
Rule 15(a)(1) of the Federal Rules of Civil
Procedure provides, in pertinent part, that a party may amend
its pleading once as a matter of course within 21 days after
serving it.
The court finds that Ali filed his motion to amend
less than twenty-one days after this court directed service of
the § 2254 petition.
See Fed. R. Civ. P. 6(d); see also
Morales-Rivera v. United States, 184 F.3d 109, 110-11 (1st Cir.
1999).
II.
Accordingly, Ali’s motion to amend is granted.
Preliminary Review of Amendment to Petition
Pursuant to Rule 4 of the Rules Governing Section 2254
Petitions in the United States District Courts (“§ 2254 Rules”),
this court subjects the petition, as amended, to a preliminary
review.
The § 2254 Rule 4 preliminary review addresses, among
other things, whether the petitioner has demonstrated that he
has exhausted his state court remedies as to each claim asserted
in the amended petition.1
A.
Amendments as to Existing Claims
In the Motion to Amend (doc. no. 27), Ali asserts
supplemental facts and legal conclusions to clarify Claims 2(a)
and 2(c), as identified in the May 20, 2013, report and
recommendation (doc. no. 24).
Ali has previously demonstrated
that he exhausted his state court remedies as to those claims.
Nothing asserted in the motion alters Claims 2(a) and 2(c) in a
manner requiring this court to reconsider its prior findings
that those claims are facially valid and exhausted.
1
The court
The legal standards applied in this preliminary review are
set forth in this court’s May 2, 2013, report and recommendation
(doc. no. 17).
2
notes that respondent has already responded to the amendments to
Claims 2(a) and 2(c).
B.
See Ans. (doc. no. 28) at 6-7
New Claims Asserted in Motion to Amend
The motion to amend (doc. no. 27) further seeks to add two
new claims to Ali’s § 2254 petition.2
Those claims are
identified below as Claims 10 and 113:
10. Ali’s 2008 conviction violated his Fourteenth
Amendment right to due process, because they were enhanced
by Ali’s 2004 conviction that was the product of a nolo
contendere plea tendered when Ali was not “competent” to
stand trial.
11. Ali’s 2008 conviction violated his Fourteenth
Amendment right to due process, in that New Hampshire
Supreme Court (“NHSC”) Justice Carol Ann Conboy, who was a
member of the NHSC panel that affirmed the conviction, was
biased: (i) because in March 2004, she issued a temporary
protective order and presided over a hearing in a
proceeding related to Ali’s 2004 conviction for violating a
protective order, which was used to enhance Ali’s 2008
conviction and sentence; and (ii) as evidenced by her
denial of Ali’s motion to file a pro se brief in Ali’s
direct appeal of his 2008 conviction, in a manner contrary
to “prevailing law.”
Claims 10 and 11 are new claims that differ substantially from
the claims previously asserted by Ali in this action.
2
Ali has further asserted in the motion (doc. no. 27) that
the state engaged in “tactical entrapment” in violation of his
Fourteenth Amendment right to due process. Ali has failed to
allege sufficient facts, however, either to give rise to any
cognizable claim of entrapment in this case or to show that he
has exhausted his state court remedies as to any such claim.
3
Claims 2-4 and 6-9 have been served in this action. The
court identifies the new claims as Claims 10 and 11, following
the numbering of claims in the May 20, 2013, report and
recommendation (doc. no. 24).
3
Ali has failed to show that he has exhausted his state
court remedies as to either Claim 10 or 11, above, in connection
with any state court proceeding challenging his 2008 conviction
and sentence.
It is not sufficient, for the purposes of the
instant § 2254 petition, that Ali raised analogous claims in a
state court petition challenging his 2004 conviction, which is
currently on appeal in the NHSC.
0155 (N.H. filed Mar. 6, 2013).
See Ali v. Warden, No. 2013Therefore, as amended by the
addition of Claims 10 and 11, Ali’s § 2254 petition has become a
“mixed petition” that is subject to dismissal because it
includes both exhausted and unexhausted claims.
Pliler v. Ford,
542 U.S. 225, 233 (2004).
To avoid dismissal of the entire petition, Ali may file, in
this court, documents from the state court record, which
demonstrate that he has exhausted both Claims 10 and 11 in state
court proceedings challenging his 2008 conviction and sentence.
If Ali did not raise both claims previously in any relevant
proceedings in the state courts, he may move this court to stay
this § 2254 petition to allow him an opportunity to return to
the state courts to do so.
Once Ali obtains a final decision
from the NHSC in such proceedings, he may return to this court
to litigate the fully exhausted § 2254 petition, including
Claims 10 and 11.
4
Alternatively, to avoid dismissal of his currently “mixed”
petition and to obtain prompt federal review of the already
exhausted claims (i.e., Claims 2-4, 6(a)-(g), and 7-9 (as
identified in the May 20, 2013 report and recommendation (doc.
no. 24)), Ali may seek leave to file an amended § 2254 petition
that omits Claims 10 and 11.
Ali should be aware, however, that
in choosing to forego those unexhausted claims, he risks losing
the chance to obtain federal court review of Claims 10 and 11 in
the future, due to the prohibition against second or successive
habeas petitions in 28 U.S.C. § 2244(b).
Conclusion
For the foregoing reasons, the court issues the following
order on the motion to amend (doc. no. 27):
1.
The motion to amend (doc. no. 27) is granted.
2.
The § 2254 petition, as amended by the motion (doc.
no. 27), includes two new claims, identified herein as
Claims 10 and 11, as to which Ali has not demonstrated
exhaustion of state court remedies.
3.
Within fourteen days of the date of this order, Ali
shall either:
(a) file documents in this court, which come from the
NHSC record in his direct appeal of his 2008
conviction, or from his appeal to the NHSC in any
post-conviction petition he filed to challenge his
2008 conviction, to show that he has already exhausted
his state court remedies as to Claims 10 and 11;
(b) file a motion to stay the § 2254 petition in this
court, so that he may return to the state courts to
exhaust Claims 10 and 11, showing good cause for his
5
failure to exhaust those claims in any previous state
court proceeding challenging his 2008 conviction; or
(c) file a motion to amend the § 2254 petition in
this court, seeking leave to omit Claims 10 and 11
from the § 2254 petition, specifically acknowledging
that in doing so, Ali risks losing the chance to
obtain federal habeas relief based on Claims 10 and 11
in the future.
4.
Respondent is not required to file an answer or other
response to any allegations or claims in the amended
petition until such time as this court directs.
SO ORDERED.
__________________________
Landya McCafferty
United States Magistrate Judge
July 3, 2013
cc:
Dominic S. Ali, pro se
LBM:nmd
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?