Reid v. Northern NH Correctional Facility, Warden

Filing 2

ORDER Directing Clerk to Make Service as to Edward Reilly, Warden, Northern NH Correctional Facility as provided in the Agreement on Acceptance of Service. Respondent to answer within 30 days. So Ordered by Magistrate Judge Landya B. McCafferty.(dae)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

George Reid
v.

Civil No. 13-cv-073-JD

Edward Reilly, Warden,
Northern New Hampshire
Correctional Facility
O R D E R
George Reid 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
Reid’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.

II.

Background
Reid was convicted of two counts of aggravated felonious

sexual assault and two counts of felonious sexual assault in
Strafford County Superior Court (“SCSC”), and sentenced to serve
20 to 60 years in prison.

Reid appealed his conviction to the

New Hampshire Supreme Court (“NHSC”).

That court affirmed

Reid’s conviction on March 16, 2011.

See State v. Reid, 161

N.H. 569, 578, 20 A.3d 298, 306 (2011).
On March 9, 2012, Reid filed a “Motion to Set Aside the
Verdict and Demand for a New Trial” in the SCSC.
1-3, at 1.
27.

The SCSC denied Reid’s motion.

See Doc. No.

See Doc. No. 1-4, at

Reid appealed that denial to the NHSC, see Doc. No. 1-4, at

5, and the NHSC declined to consider his appeal.

Reid filed a

motion to reconsider the declination, see Doc. No. 1-5, which
was denied on February 7, 2013, see Doc. No. 1-6 (State v. Reid,
No. 2012-0839 (N.H. Feb. 7, 2013)).
Reid now files this action, raising the following claims:
1.
Reid was denied the right to due process and the
right to confront the witnesses against him, in violation
of the Fifth, Sixth, and Fourteenth Amendments, because the
trial court improperly admitted, as “recorded
recollection[s],” inadmissible hearsay statements made by
the victim prior to trial.
2.
Reid was denied the right to a fair trial and his
right against self-incrimination, in violation of the Fifth
and Fourteenth Amendments, because the trial court denied a
motion for mistrial after the prosecution, in its closing
argument, made reference to Reid exercising his Fifth

2

Amendment right to remain silent by not providing a
statement during the police investigation of his case; and
3.
Reid was denied the effective assistance of
counsel, in violation of the Sixth and Fourteenth
Amendments, because his attorney failed to investigate and
present evidence at trial of Reid’s erectile dysfunction.
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

a petitioner exhaust each federal habeas claim for relief 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 NHSC’s March 16, 2011, opinion demonstrates that Claims
1 and 2, as identified above, have been exhausted.
Reid, 161 N.H. 569, 578, 20 A.3d 298, 306 (2011).

See State v.
Both the

SCSC’s order denying Reid’s motion for a new trial and the
NHSC’s denial of Reid’s appeal of that order demonstrate that
Claim 3, as identified above, has also been exhausted.
IV.

Service
The petition shall be served upon respondent Edward Reilly,

Warden of the Northern New Hampshire Correctional Facility.
Respondent shall file an answer or other response to the

3

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, electronic copies of the petition (doc. no. 1), and
this order.
Respondent is directed to answer or otherwise plead within
thirty days of the date of this Order.

See id.

The answer

shall comply with the requirements of § 2254 Rule 5.
SO ORDERED.

__________________________
Landya McCafferty
United States Magistrate Judge
May 28, 2013
cc:

Sven D. Wiberg, Esq.

LBM:jba

4