Mentus v. NH State Prison, Warden

Filing 3

ORDER Directing Clerk to Make Service upon respondent Richard Gerry as provided in the Agreement on Acceptance of Service. Defendant to answer within 30 days. So Ordered by Magistrate Judge Landya B. McCafferty.(dae)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Adam Mentus
v.

Civil No. 12-cv-447-JD

Richard Gerry, Warden,
New Hampshire State Prison
O R D E R
Adam Mentus has filed a petition for a writ of habeas
corpus (doc. no. 1) pursuant to 28 U.S.C. § 2254.

The petition

is before the court for preliminary review to determine whether
Mentus’s claims are facially valid and cognizable in a § 2254
action for federal habeas relief.

See Rule 4 of the Rules

Governing Section 2254 cases in the United States District
Courts (“§ 2254 Rules”).
Discussion
I.

Standard of Review
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).
II.

Background
Mentus was convicted of manslaughter on October 9, 2009,

after a jury trial, and sentenced to 10-20 years in prison on
December 21, 2009.

The New Hampshire Supreme Court (“NHSC”)

affirmed Mentus’s conviction on December 14, 2011.

See State v.

Mentus, 162 N.H. 792, 794, 35 A.3d 572, 574 (2011).

Mentus then

filed this action, raising the following claims for relief1:

1

While the claims are only briefly stated in the petition,
the NHSC opinion affirming Mentus’s conviction, and Mentus’s
appellate brief filed in that court support the reasonable
inference that the claims, as stated in this order, are the
claims Mentus raised in the NHSC and that he now seeks to raise
in this action.
2

1.
Mentus was denied the effective assistance of
counsel, the right to a fair trial, the due process right
to present a defense, and equal protection of the laws, in
violation of the Fifth, Sixth, and Fourteenth Amendments,
because he was indigent, and the trial court denied him
sufficient funds to hire a qualified firearms expert who
could have provided exculpatory testimony at Mentus’s
criminal trial; and
2.
Mentus was denied his right to a fair trial, in
violation of the Fifth and Fourteenth Amendments, when the
trial court failed to sustain Mentus’s objection to the
prosecutor’s closing argument that misstated the law, to
Mentus’s detriment.
III. Exhaustion
A person in custody pursuant to a judgment of the state
court may seek a writ of habeas corpus on the grounds that he is
incarcerated in violation of the federal constitution or other
federal law.

See 28 U.S.C. § 2254.

Section 2254 requires that

each federal claim for relief be exhausted in the state courts
by presenting the federal claim to the state’s highest court for
consideration prior to the filing of a federal habeas action.
See id. at § 2254(b)(1).

The brief Mentus submitted in the NHSC

demonstrates that the claims raised here, and the federal nature
of those claims, were squarely presented to, and thus exhausted
in, that court.

See Brief for the Defendant at 14, 26-27, State

v. Mentus, 162 N.H. 792, 35 A.3d 572 (2011) (No. 2010-0017),
2010 WL 9039208 at *14, *26-*27.

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IV.

Service
The petition shall be served upon respondent Richard Gerry,

Warden of the New Hampshire State Prison.

Respondent shall file

an answer or other response to the allegations made therein.
See 2254 Rule 4 (requiring reviewing judge to order a response
to the petition).

The Clerk’s office is directed to serve the

New Hampshire Office of the Attorney General, as provided in the
Agreement on Acceptance of Service, copies of the petition (doc.
no. 1), and this order.
Respondent is directed to answer or to otherwise plead
within thirty days of the date of this Order.

The answer shall

comply with the requirements of § 2254 Rule 5 (setting forth
contents of the answer).

Petitioner is referred to Fed. R. Civ.

P. 5, which requires that every pleading, written motion,
notice, and similar paper, after the petition, shall be served
on all parties.

Such service is to be made by mailing the

material to the parties’ attorney(s).
SO ORDERED.
__________________________
Landya McCafferty
United States Magistrate Judge
May 16, 2013
cc:

Adam Mentus, pro se

LBM:jba

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