The opinion of the court was delivered by: Landya McCafferty United States Magistrate Judge
Before the court is pro se petitioner Amato John Russo's writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, and the addenda thereto (doc. nos. 1, 16 and 17) (hereinafter "the petition"). The petition challenges Russo's conviction and extended sentence on charges of solicitation of witness tampering in state court. The petition is here for preliminary review to determine whether or not the claims are facially valid and cognizable in an action for federal habeas relief pursuant to § 2254. See Rule 4 of the Rules Governing Section 2254 cases in the United States District Courts ("§ 2254 Rules"). Also pending before the court is Russo's motion for appointment of counsel (doc. no. 10).
For reasons set forth below, the motion for appointment of counsel (doc. no. 10) is denied without prejudice to Russo's filing such a motion in the future if an evidentiary hearing is scheduled or other circumstances warrant the appointment of counsel. In addition, as specified below, Russo is ordered to amend his petition to clarify the basis of his claims of prosecutorial misconduct and malicious prosecution, and to show that he has exhausted all of his federal due process claims.
The following background is derived from Russo's petition (doc. nos. 1, 16 and 17); Russo's motion for appointment of counsel (doc. no. 10); and the New Hampshire Supreme Court ("NHSC") order affirming the conviction and sentence at issue, see State v. Russo, No. 2009-0870 (N.H. Jan. 21, 2011).
On February 19, 2009, Russo was tried before a jury on charges of solicitation of witness tampering, see N.H. Rev. Stat. Ann. ("RSA") §§ 629:2, I, and 641:5, I. Russo has asserted that the State's only witness, Dave Ligocki, was and continues to be "mentally unstable," and that the State did not inform Russo of that fact. Additionally, Russo has asserted that the prosecutor engaged in "misconduct" in connection with Russo's trial and/or sentencing, and that the prosecution was "malicious."
The jury convicted Russo after the February 2009 trial, and a sentencing hearing followed in October 2009. At the sentencing hearing, the State identified three predicate convictions and sentences upon which it based a request for an extended sentence, namely, a prior five to ten year stand committed sentence, and two originally suspended sentences which were imposed upon Russo between the February 2009 trial and the October 2009 sentencing hearing. The trial court accepted the State's recommendation and imposed an extended sentence, pursuant to RSA § 651:6, II(a).*fn1
Russo appealed his conviction to the NHSC, claiming, among other things, that the trial court committed plain error by sentencing him to an extended term of imprisonment because, at the time the State notified him of its intent to seek an extended term, the predicate sentences were suspended, and suspended sentences could not be used as a basis for an extended sentence. The NHSC affirmed Russo's conviction, specifically declining to find plain error in the sentence because the NHSC had not yet had occasion to clarify whether under RSA § 651:6, II(a), a suspended sentence, imposed prior to sentencing, qualifies as a basis for an extended sentence. See Russo, slip op. at 2.
Russo filed the instant petition for federal habeas relief on January 9, 2012. In the petition, Russo asserts that he has new evidence proving his innocence, and that his conviction and sentence violated his federal constitutional rights, as follows*fn2
1. The imposition of an extended sentence violated Russo's Fourteenth Amendment right to due process because, as a matter of state law, (a) the predicate "convictions" at issue included a parole violation, and parole violations do not constitute "convictions"; and (b) two of the predicate sentences were suspended at the time the State notified Russo of its intent to seek an extended sentence, and a suspended sentence imposed prior to sentencing but after conviction on the subsequent offense does not qualify as a predicate for an extended sentence.
2. The imposition of an extended sentence violated Russo's Fourteenth Amendment right to due process because the extended sentence statute, RSA 651:6, II(a), was ambiguous as applied to Russo, and the rule of lenity applied in such cases precludes the imposition of an extended sentence.
3. The prosecutor's failure to disclose pretrial that the State's only witness was "unstable" violated Russo's due process rights under the Fourteenth Amendment, as construed in Brady v. Maryland, 373 U.S. 83 (1963), and its progeny.
4. Russo's conviction and sentence were obtained in violation of his Fourteenth Amendment right to due process because the prosecutor engaged in "misconduct" in ...