Glenn v. NH Department of Corrections, Commissioner
ORDER: The stay in this case is continued for sixty days.The court will issue an Order lifting the stay thereafter, if Glenn fails to respond to or comply with this Order. So Ordered by Magistrate Judge Andrea K. Johnstone. (Response deadline set for 8/7/2017)(ko)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Charles Glenn, Jr.
Case No. 16-cv-006-JD
Opinion No. 2017 DNH 109
New Hampshire Department of
O R D E R
Charles Glenn, Jr. filed this federal habeas action, see
Petition (Doc. No. 1), pursuant to 28 U.S.C. § 2254, asserting
that his conviction and sentence for second degree murder was
obtained in violation of his constitutional rights.
has been stayed upon Glenn’s assertion that he intends to amend
his complaint to add additional claims that have not yet been
exhausted in the state courts, but that he intends to litigate
in state court post-conviction proceedings.
In January 2016, the state trial court appointed counsel to
represent Glenn for the purposes of preparing and litigating
state post-conviction challenges to his conviction and/or
Glenn has provided this court with copies of letters
(Doc. Nos. 25-1, 30-1) sent to him by his state court counsel,
dated December 13, 2016, and February 17, 2017, indicating that
counsel was reviewing “the extensive record and case materials
for potential issues for the State collateral review,” and that
the review could take several months.
Doc. No. 25-1.
February 2017 letter indicates that the state court has not
imposed any deadline on Glenn’s ability to seek post-conviction
In the interest of affording Glenn the opportunity to raise
all of his federal claims in this action, this court has stayed
Glenn’s case pending the filing and resolution of the
anticipated post-conviction proceedings in the state court.
Jan. 11, 2017 Order (Doc. No. 26), at 2.
Such a stay cannot be
[T]he district court’s discretion in structuring the
stay is limited by the timeliness concerns reflected
in AEDPA [the Antiterrorism and Effective Death
Penalty Act]. A mixed petition should not be stayed
indefinitely. . . . Without time limits, petitioners
could frustrate AEDPA’s goal of finality by dragging
out indefinitely their federal habeas review. Thus,
district courts should place reasonable time limits on
a petitioner’s trip to state court and back.
Rhines v. Weber, 544 U.S. 269, 277–78 (2005) (citing Zarela v.
Artuz, 254 F.3d 374, 381 (2d Cir. 2001) (district courts “should
explicitly condition the stay on the prisoner’s pursuing state
court remedies within a brief interval, normally 30 days, after
the stay is entered”)).
This court will lift the stay in this action within sixty
days of the date of this Order, unless Glenn, within that time
period, files either: (1) a motion to maintain the stay,
demonstrating that Glenn or counsel appointed on his behalf in
state court, has filed a post-conviction proceeding in state
court, or (2) a motion to extend the stay beyond sixty days,
demonstrating good cause for an extension.
Glenn is notified
that inaction by state court counsel, without more, may not be
considered good cause by this court, given the length of time
state court counsel has been appointed, and the lack of
information provided to this court indicating when or whether
court-appointed counsel may file a state post-conviction
proceeding on Glenn’s behalf.
The court directs as follows:
The stay in this case is continued for sixty days.
The court will issue an Order lifting the stay thereafter, if
Glenn fails to respond to or comply with this Order.
Prior to the expiration of the sixty day period, Glenn
may file a motion seeking to maintain the stay, demonstrating
that Glenn, pro se or through appointed counsel, has filed a new
state post-conviction proceeding, and attaching as an exhibit to
that motion a copy of that state court petition or other
Glenn may move to extend the sixty day deadline by
filing a motion demonstrating good cause for such extension.
The inaction of state court-appointed counsel alone may not
suffice to demonstrate good cause.
Andrea K. Johnstone
United States Magistrate Judge
June 8, 2017
cc: Charles Glenn, Jr., pro se
Elizabeth C. Woodcock, Esq.
Christine List, Esq., NH Appellate Defender-courtesy copy
Stephanie Hausman, Esq., NH Appellate Defender–courtesy copy
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