Kerner v. NH Department of Corrections, Commissioner

Filing 20

ORDER granting 11 Motion to Lift Stay; granting 12 Motion to Amend 3 Petition for Writ of Habeas Corpus; denying without prejudice 14 Motion for Independent In-Camera Review ; denying without prejudice 15 Motion for H earing ; denying without prejudice 19 Motion for to Subpoena Witnesses. The clerk's office is directed to redocket petitioner's proposed amended petition (doc. no. 12-1) as the amended petition in this matter. Petitioner has 30 days for the date of this order to file the appropriate documentation as described therein. (Notice of Compliance deadline 6/9/2014) So Ordered by Judge Steven J. McAuliffe.(jab)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Mark A. Kerner
v.

Case No. 13-cv-132-SM
Opinion No. 2014 DNH 104

Edward Reilly, Warden,
Northern New Hampshire
Correctional Facility

O R D E R

Mark Kerner has filed a habeas petition in this matter
pursuant to 28 U.S.C. § 2254.

Before the court are Kerner's:

motion to lift stay (doc. no. 11); motion to amend (doc. no. 12)
his habeas petition, including an amended petition (doc. no. 121) and three addenda (doc. nos. 16-18) to the motion; motion for
independent in-camera review (doc. no. 14); a motion for an
evidentiary hearing (doc. no. 15); and motion to subpoena
witnesses

(doc. no. 19).

On September 6, 2013, the court issued an order (doc. no. 8)
granting a stay in this matter to allow Kerner to return to the
state courts to exhaust the claims in his petition that were then
unexhausted.

That order directed Kerner to supply the court with

regular status reports during the litigation of his state court
proceedings, and after the New Hampshire Supreme Court

("NHSC")

issued a final order, to move this court to amend his petition

and include exhibits to the motion, to demonstrate that each of
the claims in the petition was exhausted.
Kerner filed his motion to lift the stay, motion to amend,
and amended petition in a timely fashion.

Kerner has not,

however, supplied the court with documentation demonstrating that
each of his federal claims has been presented to the NHSC for
consideration.

Accordingly, Kerner has not demonstrated that his

NHSC filings exhausted his claims here.

The court grants Kerner

leave to file the appropriate documentation, as directed below.

Conclusion
1.

Kerner's motions to lift the stay (doc. no. 11) and to

amend the petition

(doc. no. 12) are granted.

The clerk's office

is directed to redocket Kerner's proposed amended petition (doc.
no. 12-1) as the amended petition in this matter.
2.

The motions for in-camera review (doc. no. 14), an

evidentiary hearing (doc. no. 15), and to subpoena witnesses
(doc. no. 19) are denied, without prejudice, as premature, as
they ask the court to address the merits of the petition prior to
the court's completion of preliminary review.
3.

Kerner is directed to supply this court, within thirty

days of the date of this order, with all of the documents he has
filed in the NHSC during the stay of this matter, including, but
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not limited to, motions, petitions, briefs, and notices of
appeal, that served to present the federal habeas claims listed
in the amended complaint

(doc. no. 12-1) in a manner adequate to

constitute exhaustion of those claims in the NHSC.
Failure to comply with the terms of this order may result in
the dismissal of this action.

SO ORDERED.

S/ceven J/ McAuliffe
even
United States District Judge
May 8, 2014
cc:

Mark A. Kerner, pro se

SM:jba

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