Ali v. NH State Prison, Warden

Filing 7

ORDER DIRECTING Petitioner to file an amended petition within 45 days of the date of this order to demonstrate that he has exhausted his state court remedies on Claims 1-8 above, and to clarify or correct this courts identification of his claims as outlined in the written order. Amended pleadings due November 26, 2012. So Ordered by Magistrate Judge Landya B. McCafferty.(cmp)

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 the petition for writ of habeas corpus
(doc. no. 1), filed pursuant to 28 U.S.C. § 2254, by pro se
prisoner Dominic Ali.

The matter is here for preliminary review

to determine whether or not the claims raised in the petition
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 background facts and standard

applied in reviewing a habeas petition pursuant to § 2254 Rule 4
are set forth at length in the report and recommendation issued
on this date, and need not be repeated here.
Discussion
I.

Claims
Construing the § 2254 petition (doc. no. 1) liberally, and

without issuing any ruling on whether such claims are

cognizable, the court finds that the petition (doc. no. 1)
asserts the following claims:
1.
Ali’s conviction and sentence for an enhanced second
degree assault charge were based on the trial court’s
misinterpretation of state law, particularly N.H. Rev.
Stat. Ann. (“RSA”) § 173-B:9, IV(b).
2.
Ali’s conviction and sentence for that enhanced second
degree assault charge violated Ali’s right to due process
under the Fourteenth Amendment, in that:
A.
The statute used to enhance the charge to a class
A felony, RSA § 173-B:9, IV(b), is ambiguous, and the
trial court failed to follow the requisite rule of
lenity in allowing Ali to be convicted and sentenced
for a second degree assault count charged as a class A
felony;
B.
The underlying conviction used to enhance the
second degree assault charge was obtained through a
prior plea of guilty, which Ali alleges resulted from
a proceeding in which appointed counsel provided him
with ineffective assistance;
C.
Ali’s sentence for second degree assault was, in
effect, enhanced based on facts not decided by the
jury beyond a reasonable doubt.
3.
The prosecutor was allowed to divide a single
indictment into multiple counts in order to pursue
enhanced second degree assault charge against Ali,
violation of Ali’s right to due process and a fair
under the Fourteenth and Sixth Amendments.

count
an
in
trial

4.
The prosecutor knowingly introduced the victim’s false
testimony, which the state had improperly coerced with the
threat of taking away her children, in violation of Ali’s
right to due process under the Fourteenth Amendment.
5.
The prosecutor’s closing argument improperly expressed
the prosecutor’s opinion of Ali’s guilt, in violation of
Ali’s right to due process under the Fourteenth Amendment.

2

6.
Trial counsel provided ineffective assistance, in
violation of Ali’s Sixth Amendment right, in that trial
counsel:
A.

Failed to depose the state’s experts pretrial;

B.
Failed to consult with or obtain a medical expert
to rebut the state’s experts;
C.
Failed to properly investigate the status of the
victim’s Division of Children, Youth, and Families
(“DCYF”) investigation;
D.
Failed to introduce evidence regarding the
victim’s alcoholism, drug addiction, mental illness,
and frequent failure to take prescribed medication,
which would have led the jury to question her
credibility;
E.
Failed to object to the prosecutor’s introduction
of the testimony of the victim, which defense counsel
knew was both false and improperly coerced by the
state; and
F.
Failed to object to the prosecutor’s expression,
during closing argument, of his personal opinion of
Ali’s guilt.
7.
Counsel appointed for the sentencing proceeding
provided ineffective assistance, in violation of Ali’s
Sixth Amendment right, in that counsel:
A.
Failed to challenge the presentencing
investigation report (“PSI”), which improperly listed
two prior convictions for Ali;
B.
Failed to provide the PSI to Ali prior to the
sentencing hearing; and

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C.
Failed to assert as a mitigating factor during
sentencing that Ali had received ineffective
assistance of counsel at trial.1
8.
Appellate counsel provided ineffective assistance, in
violation of Ali’s Sixth Amendment right, in that appellate
counsel:
A.
Failed to raise, in the New Hampshire Supreme
Court (“NHSC”), the trial court’s misconstruction of
RSA § 173-B:9, IV(b); and
B.
Acted under an actual conflict of interest, based
on the affiliation of the public defender’s and
appellate defender’s offices, which precluded
appellate counsel from arguing reversible issues
including ineffective assistance of trial counsel.
9.
Counsel appointed to advise Ali in regard to his state
habeas petition provided ineffective assistance of counsel,
in violation of Ali’s Sixth Amendment right to counsel.
In the report and recommendation issued on this date, the
magistrate judge has recommended that, pursuant to 28 U.S.C.
§ 2254(i), this court dismiss Claim 9, which asserts that
Attorney Ghazi Al-Mayarati provided Ali with ineffective
assistance of counsel during a state post-conviction proceeding.

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Ali has further asserted that Attorney Introcaso failed to
present to the superior court, prior to sentencing, a
“sentencing guideline computation” and Ali’s “postconviction
specialist need,” early enough for that court to consider in
relation to the PSI. This court cannot discern from the
petition how counsel’s conduct in this regard might be construed
as a ground for a Sixth Amendment claim. Ali is granted leave
to amend this part of his petition to add factual allegations,
if he intends to assert additional violations of his Sixth
Amendment rights based on these allegations.

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II.

Exhaustion
To be eligible for habeas relief on Claims 1-8 above, Ali

must show that he has exhausted all of the remedies available to
him in the state courts on those claims, or that state
corrective processes are unavailable or ineffective to protect
his rights.

See 28 U.S.C. § 2254(b)(1).

“[A] petitioner’s

failure to present his federal constitutional claim to the state
courts is ordinarily fatal to the prosecution of a federal
habeas case.”

Coningford v. Rhode Island, 640 F.3d 478, 482

(1st Cir. 2011).
A petitioner’s remedies in New Hampshire are exhausted when
the NHSC has had an opportunity to rule on the claims.
Lanigan v. Maloney, 853 F.2d 40, 42 (1st Cir. 1988).

See

“In order

to exhaust a claim, the petitioner must ‘present the federal
claim fairly and recognizably’ to the state courts, meaning that
he ‘must show that he tendered his federal claim in such a way
as to make it probable that a reasonable jurist would have been
alerted to the existence of the federal question.’”

Clements v.

Maloney, 485 F.3d 158, 162 (1st Cir. 2007) (internal quotations
and citation omitted).

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“Ineffective assistance of counsel claims must be exhausted
as to each ground alleged to constitute a violation of the Sixth
Amendment.”

Evicci v. Maloney, No. Civ.A. 99-11561-DPW, 2003 WL

21339277, *7 (D. Mass. June 4, 2003), aff’d, 387 F.3d 37 (1st
Cir. 2004).

To demonstrate that he has exhausted each of his

claims of ineffective assistance of counsel, Ali must show that
he fairly presented to the NHSC the factual basis of each
specific claim raised in the § 2254 petition.

See id.

Ali asserts that in State v. Ali, No. 2009-0140, he
presented the claims numbered above as Claims 1-3 to the NHSC.
Specifically, Ali asserts that he raised those claims in his
motion requesting leave to file a pro se brief in his direct
appeal.

Ali has failed to file a copy of that motion in this

matter, however, which prevents this court from determining if
Claims 1-3 were in fact fairly presented to the NHSC.
Ali further contends that his motion to appoint new counsel
in NHSC case no. 2009-0140, and his state habeas petition, both
raised ineffective assistance of counsel claims, like Claims 6-8
above, and that his state habeas petition raised the issues
listed above in Claims 1-5.

Ali’s failure to file, as exhibits

in this court, his motion to appoint new appellate counsel, the
superior court decision on his state habeas petition, and the

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notice of discretionary appeal filed in the NHSC, prevents this
court from verifying whether he exhausted his state court
remedies on Claims 1-8.
A federal habeas petition containing unexhausted claims is
subject to being dismissed without prejudice, or, as
appropriate, stayed to grant the petitioner an opportunity to
exhaust all of his claims.
278-79 (2005).

See Rhines v. Weber, 544 U.S. 269,

Alternatively, a petitioner may be granted leave

to file an amended petition that omits any unexhausted claims,
see id., although in choosing to forego unexhausted claims, the
petitioner risks losing the chance to file these claims in a
future habeas petition, due to the prohibition against second or
successive habeas petitions set forth in 28 U.S.C. § 2244(b).
See, e.g., Gautier v. Wall, 620 F.3d 58, 60-61 (1st Cir. 2010).
The § 2254 petition (doc. no. 1) filed here includes Claims
1-8 above, as to which Ali has not yet demonstrated exhaustion.
Accordingly, before this petition may proceed, Ali must file an
amended petition to demonstrate exhaustion of his state court
remedies on Claims 1-8.

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Conclusion
Ali is granted leave to file an amended petition within 45
days of the date of this order, to demonstrate that he has
exhausted his state court remedies on Claims 1-8 above, and to
clarify or correct this court’s identification of his claims.
The amended petition must include the following documents
as exhibits, to demonstrate that Ali has exhausted his state
court remedies on each of his claims for federal habeas relief:
1.
Ali’s motion for appointment of new appellate counsel,
which he filed in the NHSC in case no. 2009-0140;
2.
Ali’s motion for leave to file a pro se brief, which
he filed in the NHSC in case no. 2009-1040;
3.
Ali’s notice of appeal, which he filed in the NHSC in
case no. 2009-0140;
4.
The superior court order denying Ali’s state petition
for habeas corpus, issued in March 2012, in Ali v. Gerry,
No. 217-2011-cv-00746 (N.H. Super. Ct., Merr. Cnty.);
5.
Ali’s notice of discretionary appeal, which Ali filed
in the NHSC, in case no. 2012-0197;
6.
The NHSC order declining to accept Ali’s discretionary
appeal in case no. 2012-0197; and
7.
Any other NHSC order or superior court order relating
to the claims asserted by Ali in his habeas petition, and
any other notice, brief, exhibit, or motion filed as part
of the NHSC record in any case involving Ali as a party,
which demonstrates that Ali presented to the NHSC each
issue raised in his § 2254 petition.

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Should Ali fail to file an amended petition within 45 days,
or otherwise fail to comply with this order, the court may
recommend that Ali’s § 2254 petition be dismissed for failure to
demonstrate exhaustion of state remedies as to Claims 1-8.
28 U.S.C. § 2254(b).
SO ORDERED.
__________________________
Landya McCafferty
United States Magistrate Judge
October 10, 2012
cc:

Dominic S. Ali, pro se

LBM:nmd

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See