Schillinger v. NH State Prison, Warden

Filing 28

ORDER granting in part and denying in part 25 Motion to Amend, Add Exhibits and Arguments. Granted to the extent that court adds to the petition the claims identified as Claims A and B. Denied in all other respects. Schillinger to file documents as outlined by March 5, 2013. The February 1, 2013 order (document no. 26) remains in full force and effect. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Greg Schillinger
v.

Civil No. 12-cv-423-JD

New Hampshire State Prison Warden
O R D E R
Before the court is petitioner Greg Schillinger’s motion
requesting leave to amend (doc. no. 25) his 28 U.S.C. § 2254
petition for writ of habeas corpus.1

Schillinger’s motion to

amend, filed with exhibits to support the allegations therein,
seeks to add the following claims to his § 2254 petition:
A. Schillinger’s conviction was obtained in violation of
his Fourteenth Amendment right to due process, in that the
trial judge in Schillinger’s criminal proceedings was biased
against Schillinger.
B.
Schillinger’s sentence violates his rights under the
Eighth Amendment, in that his sentence is grossly
disproportionate to the crimes charged, and to sentences
imposed in cases in which the criminal act caused death.
C.
Schillinger’s sentence violates his rights under the
Eighth Amendment to humane conditions of confinement, in
that he has been subjected to physical and emotional abuse,
starvation, inadequate medical care, temperature extremes,
excessive noise, and contaminated, unhealthy, and/or
insufficient food and water.

1

Also pending in this matter are petitioner’s two motions to
appoint counsel (doc. nos. 3 and 16). The motions will be
addressed after Schillinger responds to the court’s February 1,
2013, order (doc. no. 26), and to this order, both of which
direct Schillinger, by March 5, 2013, to file documents to
demonstrate that he has exhausted his state court remedies on his
claims for federal habeas relief

The court may grant a petitioner leave to amend a § 2254
petition when justice so requires.

See Fed. R. Civ. P. 15(a)(2);

see also 28 U.S.C. § 2243 (petition may be amended as provided in
federal civil procedure rules).

Leave to amend may be denied if

the record shows that the proposed amendment would be futile.
See Todisco v. Verizon Commc’ns, Inc., 497 F.3d 95, 98 (1st Cir.
2007); see also Rule 4 of the Rules Governing Section 2254 Cases
in the United States District Courts (“§ 2254 Rules”) (district
judge must dismiss claims upon preliminary review if petition and
exhibits plainly show that petitioner is not entitled to relief).
An action for federal habeas relief lies where a petitioner
is challenging the fact or duration of his confinement on the
ground that it violates his federal rights.
§ 2254(a).

See 28 U.S.C.

The third claim (identified as Claim C) above fails

to state a claim cognizable in a federal habeas corpus action, as
it challenges the conditions of his confinement, and not the fact
or duration of his confinement per se.
Campbell, 541 U.S. 637, 643 (2004).

See generally Nelson v.

Even if all of Schillinger’s

allegations are presumed true, injunctive relief in the form of a
release order would not be required, as a damage award or other
forms of injunctive relief available in an action brought
pursuant to 42 U.S.C. § 1983 may suffice.

The court previously

dismissed without prejudice similar conditions of confinement
claims asserted in Schillinger’s original petition.

2

See Order

(Feb. 1, 2013) (doc. no. 26).

For the reasons set forth here and

in the February 1, 2013 order, the court denies the motion to
amend the petition to add claims and allegations asserting
inhumane conditions of confinement, without prejudice to
Schillinger refiling claims based on those allegations in a
separately filed § 1983 action.
As to the remaining claims Schillinger seeks to add to the
§ 2254 petition (identified above as Claims A and B), Schillinger
has failed to demonstrate that he has exhausted his state court
remedies.

This court previously granted Schillinger until March

5, 2013, to file documents to show that he has exhausted his
state court remedies on each claim asserted in the § 2254
petition.

See Order (Feb. 1, 2013) (doc. no. 26).

The court

directs Schillinger to file documents from the NHSC record to
show that he has exhausted his state court remedies as to the
claims identified above as Claims A and B on or before the same
deadline, March 5, 2013.

Conclusion
The motion to amend (doc. no. 25) is granted in part and
denied in part.

The motion is granted to the extent that the

court adds to the petition the claims identified as Claims A and
B above.

The motion is denied in all other respects.

The court directs Schillinger to file, by March 5, 2013, any
documents from the NHSC docket, relating to Schillinger’s
3

conviction, which demonstrate that Schillinger has exhausted his
state court remedies as to Claims A and B above.
The February 1, 2013 order (doc. no. 26) remains in full
force and effect.
SO ORDERED.

Joseph N. Laplante
United States District Judge
Dated:
cc:

February 12, 2013

Greg Schillinger, pro se

4