Reynolds v. Rockingham County Superior Court

Filing 2

ORDER directing Petitioner to Amend 1 Petition for Writ of Habeas Corpus. So Ordered by Magistrate Judge Landya B. McCafferty.(vln)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Scott Erik Reynolds
v.

Civil No. 12-cv-370-PB

Rockingham County Superior Court

O R D E R
Scott Erik Reynolds has petitioned for a writ of habeas
corpus (doc. no. 1).

See 28 U.S.C. § 2254.

The matter is

before the court for preliminary review to determine whether 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”).
§ 2254 Rule 4 Standard
Pursuant to § 2254 Rule 4, a judge is required to promptly
examine any petition for habeas relief, and if “it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the
judge must dismiss the petition.”

Id.

In undertaking this

review, the court decides whether the petition contains
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face and cognizable in a federal

habeas action.

See McFarland v. Scott, 512 U.S. 849, 856 (1994)

(“Federal courts are authorized to dismiss summarily any habeas
petition that appears legally insufficient on its face.” (citing
§ 2254 Rule 4)).
The court undertakes this preliminary review of the
petition with due consideration for the petitioner’s pro se
status.

“As a general rule, . . . we hold pro se pleadings to

less demanding standards than those drafted by lawyers and
endeavor, within reasonable limits, to guard against the loss of
pro se claims due to technical defects.”

Dutil v. Murphy, 550

F.3d 154, 158 (1st Cir. 2008).
Background
On December 13, 2011, Reynolds pleaded guilty to reckless
conduct and criminal mischief offenses in the Rockingham County
Superior Court, and was sentenced to serve one-and-a-half to
four years in prison, with an additional prison sentence
suspended.

Reynolds neither appealed his conviction to the New

Hampshire Supreme Court (“NHSC”), nor filed any post-conviction
motion or petition collaterally challenging his convictions or
sentence in the state superior court.
serving the sentence imposed.

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Reynolds is presently

Reynolds now challenges his convictions on the basis that
his guilty plea was not knowingly and voluntarily entered.
Reynolds claims that he opted to enter a guilty plea on the
assumption that his attorney had adequately represented him.
Reynolds now claims that he has, since his plea, become aware
that his attorney failed to request certain items that were
missing from the discovery received from the state, including an
evidence report and an “audio/video interview.”
Claims
Reynolds has not, in his petition, identified any specific
federal right violated by his convictions.

Liberally construing

the petition, as is required at this stage of the proceedings,
see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam),
however, the court finds that Reynolds has attempted to assert
the following federal constitutional claims for relief:
1.
Reynolds’s convictions violate his rights to a fair
trial and due process, under the Sixth and Fourteenth
Amendments, because they are the result of a guilty plea
that was not knowingly, intelligently and voluntarily
entered, as Reynolds agreed to plead guilty because he was
unaware that his attorney had failed to obtain certain
discovery in the case;
2.
Reynolds’s conviction violates his Sixth Amendment
right to the effective assistance of counsel because his
trial attorney failed to obtain certain discovery,
resulting in Reynolds’s conviction pursuant to a guilty
plea that was not knowing, intelligent, and voluntary.

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Discussion
I.

Respondent
Reynolds named the Rockingham County Superior Court as the

respondent in this action.

The proper respondent to a federal

habeas petition is the petitioner’s custodian; the appropriately
named custodian is the warden of the facility in which
petitioner is detained.

See Vasquez v. Reno, 233 F.3d 688, 691

(1st Cir. 2000) (proper custodian in habeas action is the warden
of the facility where petitioner is being held); see also 28
U.S.C. § 2243 (writ of habeas corpus granted by a federal court
“shall be directed to the person having custody of the person
detained”); § 2254 Rule 2.

As directed below, Reynolds must

amend his petition to name the warden and not the superior court
as the respondent to this action.
II.

Exhaustion
To be eligible for relief in a § 2254 petition, Reynolds

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

See 28 U.S.C. § 2254(b)(1).

“An applicant shall

not be deemed to have exhausted the remedies available in the

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courts of the State . . . if he has the right under the law of
the State to raise, by any available procedure, the question
presented.”

Id. § 2254(c).

Unexhausted claims cannot generally

be cited as grounds for granting federal habeas relief.
§ 2254(b).

See id.

“[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.), cert. denied, 132 S. Ct.
426 (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 quotation
marks and citation omitted).

“‘The appropriate focus [in an

exhaustion inquiry] centers on the likelihood that the
presentation in state court alerted that tribunal to the claim’s
federal quality and approximate contours.’”

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Coningford, 640

F.3d at 482 (emphasis in original) (quoting Nadworny v. Fair,
872 F.2d 1093, 1098 (1st Cir. 1989)).
Reynolds acknowledges that he has not filed any direct
appeal, post-conviction motion, or habeas petition in the state
courts.

Reynolds has thus plainly failed to exhaust his claims.

Accordingly, Reynolds will be granted leave to return to the
state courts to exhaust his Sixth and Fourteenth Amendment
claims there, raising those claims either in a motion to
withdraw his plea in the Rockingham County Superior Court, or in
a state habeas petition in the superior court in the county
where he is incarcerated.

Should Reynolds be unsuccessful in

the superior court, he must, to completely exhaust his federal
constitutional claims, appeal the order denying those claims to
the NHSC.

Once the NHSC has finally resolved Reynolds’s

challenges to his convictions, his federal habeas claims, thus
exhausted, may be entertained by this court.
Conclusion
Reynolds is directed as follows:
1.

If Reynolds intends to proceed with his federal

habeas petition, he must exhaust his state remedies on his
federal habeas claims, and he may seek an order staying

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this federal petition to provide him with time to return to
the state courts to do so;
2.

Reynolds is granted leave to file in this court a

motion to stay the federal petition within thirty days of
the date of this order;
3.

Reynolds must commence post-conviction litigation

in the superior court within sixty days of the date of this
order;
4.

Reynolds must apprise the court, every ninety

days, of the status of his state court litigation, through
the final disposition of his federal claims in the NHSC;
5.

Once the NHSC has issued a decision on Reynolds’s

appeal of his post-conviction litigation, Reynolds must
notify this court within thirty days of the date of that
decision, must file a motion to lift the stay in this
court, and, if he intends to maintain his federal habeas
petition, he must file an amended habeas petition that
demonstrates that he has exhausted his state court remedies
as to all of the federal claims contained therein;
6.

To demonstrate exhaustion, Reynolds must file as

exhibits to his amended petition in this court any motions,
notices of appeal, briefs, state court decisions, or other

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documents derived from the state court record, which
demonstrate that his state court remedies have been
presented to the NHSC; and
7.

Reynolds’s amended habeas petition must name the

proper respondent in this matter, Reynolds’ custodian at
the time the amended petition is filed.
Should Reynolds fail to amend his petition as directed, or
otherwise fail to comply with this order, the court will
recommend that the petition be dismissed, without prejudice, for
failure to demonstrate exhaustion of state remedies as to each
of the claims asserted therein.

See 28 U.S.C. § 2254(b).

SO ORDERED.

__________________________
Landya McCafferty
United States Magistrate Judge
October 15, 2012
cc:

Scott Erik Reynolds, pro se

LBM:jba

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