Balliro v. NH State Prison, Warden

Filing 4

ORDER Directing Clerk to Make Service as provided in the Agreement on Acceptance of Service. Respondent to answer within 30 days of the date of this Order. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Anthony Balliro
Civil No. 12-cv-133-JD

V.

Richard Gerry, Warden,
New Hampshire State Prison

0 R

DE R

Anthony Balliro 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
Balliro's claims are facially valid and cognizable in a
action for federal habeas relief.

§

2254

See Rule 4 of the Rules

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

I.

Procedural Background
On July 6, 2007 , Balliro was convicted of one count of

first degree murder and two counts of arson, see State v.
Balliro, 158 N.H. 1, 3, 959 A . 2d 212, 215 (2008), and is
presently serving a life sentence pursuant to those convictions.
Balliro's conviction was affirmed by the New Hampshire Supreme
Court ("NHSC") on October 30, 2008.

On October 3, 2009, Balliro filed a motion for a new trial
in the Superior Court, asserting that he did not receive
effective assistance of counsel at trial.

In his motion,

Balliro claimed that trial counsel's ineffectiveness caused his
rights under the Sixth Amendment's Confrontation Clause and the
Fourteenth Amendment's Due Process Clause to be violated.
Superior Court denied the motion on June 23, 2010.

The

The NHSC

affirmed the denial of Balliro's motion for a new trial on
October 3, 2011.

See State v. Balliro, No. 2010-0503, 2011 N.H.

LEXIS 159, *1 (N.H. Oct. 3, 2011).
II.

The Claims
Liberally construed, the court finds that Balliro has

raised the following claims for relief in his petition:
1.

Trial counsel provided ineffective assistance of

counsel, by failing to object to the introduction of testimony
from a witness who was deceased, and thus unavailable to testify
and be cross-examined at trial, in violation of Balliro's Sixth
and Fourteenth Amendment rights. 1
2.

Trial counsel provided ineffective assistance of

counsel, by failing to object to the introduction at trial of:
1

Balliro refers to a violation of the Fifth Amendment, but
does not anywhere explain the basis of this allegation.
Accordingly, the court construes the petition not to have
included any claim based on a Fifth Amendment violation.

2

a) evidence of Balliro's bad character, and b) evidence of
Balliro's prior criminal record, in violation of Balliro's Sixth
and Fourteenth Amendment rights.
III. Facial Validity of Petition
A.

Custody

To be eligible for habeas relief on his federal claims,
Balliro must show that he is in custody in violation of his
federal constitutional or statutory rights.
§ 2254(a).

See 28

u.s.c.

Balliro's present incarceration pursuant to the

sentence imposed for the challenged convictions satisfies the
custody requirement in§ 2254(a).
B.

Exhaustion

To be eligible for relief in a § 2254 petition, petitioner
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).

The NHSC order

affirming the denial of Balliro's motion for a new trial
demonstrates that Balliro has raised the federal constitutional
claims asserted in this federal habeas petition in the NHSC, and
the NHSC has issued a ruling on those claims.

3

See State v.

Balliro, 2011 N.H. LEXIS 159, at *2.

Balliro's claims have thus

been exhausted in the state courts, and the petition may proceed
in this court at this time.
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 Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts ("§ 2254 Rules")

(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.
comply with the requirements of
contents of the answer).

§

The answer shall

2254 Rule 5 (setting forth

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

4

on all parties.

Such service is to be made by mailing the

material to the parties' attorney{s).
SO ORDERED.

~:Q\~~~DiClerico, Jr.
United States District Judge

August 27, 2012
cc:

Anthony Balliro, pro se

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