Kerner v. NH Department of Corrections, Commissioner

Filing 24

///ORDER Directing Clerk to Make Service. Clerk's office is directed to amend the docket to reflect that Edward Reilly is the only respondent in this action. So Ordered by Magistrate Judge Andrea K. Johnstone.(jab)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Mark A. Kerner
v.

Civil No. 13-cv-132-SM

Edward Reilly, Warden, Northern New
Hampshire Correctional Facility 1

O R D E R

On May 8, 2014, the court issued an order (doc. no. 20)
lifting the stay in this matter and directing petitioner Mark
Kerner to file documents to demonstrate that his federal habeas
claims in this court had been exhausted in the state courts.
Kerner has now responded (doc. no. 22).

The attachments to that

response demonstrate that each claim raised here has been
presented to the New Hampshire Supreme Court for consideration,
and is thus exhausted.
(1st Cir. 2008).

See Dutil v. Murphy, 550 F.3d 154, 158

Accordingly, the habeas petition in this

matter, which the court finds is comprised of Kerner’s
aggregated filings, numbered 3, 16-18, 21, and 22, in the
court’s docket, may proceed.
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In addition to Edward Reilly, Kerner has named William
Wrenn, the Commissioner of the New Hampshire Department of
Corrections as a respondent. Reilly is the proper respondent,
as he is Kerner’s present custodian. See Rules Governing Section
2254 Cases in the United States District Courts, Rule 2(a).
Accordingly, the court construes the petition to name only
Reilly as Respondent.

The court therefore directs as follows:
1.
The clerk’s office is directed to amend the
docket in this matter to reflect that Edward Reilly is the
only respondent to this action.
2.
The petition (doc. nos. 3, 16-18, 21, and 22)
shall be served upon respondent Edward Reilly, Warden of
the Northern New Hampshire Correctional Facility. 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
this Order and Kerner’s habeas petition (doc. nos. 3. 1618, 21, and 22), including any attachments filed with those
pleadings.
3.
Respondent shall file an answer or other pleading
in response to the allegations made in the amended petition
within thirty days of service. The answer shall comply
with Rule 5 of the Rules Governing Section 2254 Cases in
the United States District Courts. The respondent shall
thereafter comply with LR 7.4.
4.
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 respondent’s attorney(s).
SO ORDERED.

______________________________
Andrea K. Johnstone
United States Magistrate Judge

June 20, 2014
cc:

Mark A. Kerner, pro se

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