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Katherine Mendola v. Joanne Fortier

February 2, 2012


The opinion of the court was delivered by: Landya McCafferty United States Magistrate Judge


Before the court is Katherine Mendola's petition for a writ of habeas corpus (doc. no. 1), filed pursuant to 28 U.S.C. § 2254. The matter is before the court for preliminary review to determine whether the petition is facially valid and may proceed. See Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts ("§ 2254 Rules") (requiring court to dismiss habeas petition where petition facially demonstrates that there is no entitlement to relief); United States District Court for the District of New Hampshire Local Rule ("LR") 4.3(d)(2) (requiring magistrate judge to preliminarily review prisoner actions to determine whether plaintiff or petitioner has stated any claim upon which relief might be granted).

Standard of Review

Under LR 4.3(d)(2) and § 2254 Rule 4, when an incarcerated petitioner commences a habeas action pro se, the magistrate judge conducts a preliminary review. The magistrate judge may issue a report and recommendation after the initial review, recommending that claims be dismissed if the court finds that the petition fails to state any claim upon which relief might be granted. See LR 4.3(d)(2); § 2254 Rule 4.

In conducting a preliminary review, the magistrate judge construes pro se pleadings liberally, to avoid inappropriately stringent rules and unnecessary dismissals. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976), to construe pleadings liberally in favor of pro se party); Castro v. United States, 540 U.S. 375, 381 (2003). The court applies a standard analogous to that used in reviewing a motion to dismiss filed pursuant to Fed. R. Civ. P. 12(b)(6). The court decides whether the complaint contains sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S. Ct. 1937, 1949 (2009).

To make this determination, the court employs a two-pronged approach. See Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). The court first screens the complaint for statements that "merely offer legal conclusions couched as fact." Id. (citations, internal quotation marks and alterations omitted). The second part of the test requires the court to credit as true all non-conclusory factual allegations and the reasonable inferences drawn from those allegations, and then to determine if the claim is plausible. See id.; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). The "make-or-break standard" is that those allegations and inferences, taken as true, "must state a plausible, not a merely conceivable, case for relief." Sepulveda-Villarini v. Dep't of Educ., 628 F.3d 25, 29 (1st Cir. 2010); see Twombly, 550 U.S. at 555-56 ("Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." (internal citations and footnote omitted)).

Evaluating the plausibility of a claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at ___, 129 S. Ct. at 1950 (citation omitted). In doing so, the court may not disregard properly pleaded factual allegations or "attempt to forecast a plaintiff's likelihood of success on the merits." Ocasio-Hernandez, 640 F.3d at 13.


In 2008, Katherine Mendola was convicted of criminal solicitation to commit murder in the New Hampshire Superior Court, sitting at Rockingham County. The charges against Mendola arose out of an undercover sting operation, during which Mendola was audio and videotaped, hiring an undercover law enforcement officer acting as a "hit man," to kill the wife of someone for whom the state alleged Mendola harbored a romantic obsession.

Mendola states that the meeting between the undercover officer and Mendola was orchestrated by Mendola's sometime-roommate and former boyfriend, who was acting as a police informant. Mendola asserts that her former boyfriend framed her by manufacturing evidence against her and initiating the meeting with the undercover officer. Mendola further asserts that her participation in the solicitation was coerced by her former boyfriend, who was physically abusive, because he threatened to kill her if she did not participate in those acts.

Procedural History

After a jury trial, Mendola was convicted and sentenced to 10 -- 20 years in prison. Mendola filed a direct appeal of her conviction in the New Hampshire Supreme Court ("NHSC"). The NHSC affirmed her conviction in a written opinion. See State v. Mendola, 160 N.H. 550, 552, 8 A.3d 127, 130 (2010). The record before the court suggests that Mendola did not engage in any state court post-conviction litigation challenging her conviction or sentence.

In the federal habeas petition presently before this court, Mendola does not specifically assert that she has suffered any violation of her federal right as a result of the challenged actions and rulings in state court. The federal habeas statute permits the court to grant relief only where a petitioner asserts that she "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).

Generously construing the petition, however, the court identifies the federal rights that appear to be implicated in Mendola's claims. The claims, as identified below, will hereafter be considered to be the claims in the petition for all purposes. If Mendola disagrees with the identification of her claims, she must do so by properly moving to amend her petition, or by filing a ...

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