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Dominic S. Ali v. Richard M. Gerry

October 10, 2012

DOMINIC S. ALI
v.
RICHARD M. GERRY, WARDEN, NEW HAMPSHIRE STATE PRISON



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

ORDER

Before the court is the petition for writ of habeas corpus (doc. no. 1), filed pursuant to 28 U.S.C. § 2254, by pro se prisoner Dominic Ali. The matter is here for preliminary review to determine whether or not the claims raised in the petition are facially valid and may proceed. See Rule 4 of the Rules Governing Section 2254 cases in the United States District Courts ("§ 2254 Rules"). The background facts and standard applied in reviewing a habeas petition pursuant to § 2254 Rule 4 are set forth at length in the report and recommendation issued on this date, and need not be repeated here.

Discussion

I. Claims

Construing the § 2254 petition (doc. no. 1) liberally, and without issuing any ruling on whether such claims are cognizable, the court finds that the petition (doc. no. 1) asserts the following claims:

1. Ali's conviction and sentence for an enhanced second degree assault charge were based on the trial court's misinterpretation of state law, particularly N.H. Rev. Stat. Ann. ("RSA") § 173-B:9, IV(b).

2. Ali's conviction and sentence for that enhanced second degree assault charge violated Ali's right to due process under the Fourteenth Amendment, in that:

A. The statute used to enhance the charge to a class A felony, RSA § 173-B:9, IV(b), is ambiguous, and the trial court failed to follow the requisite rule of lenity in allowing Ali to be convicted and sentenced for a second degree assault count charged as a class A felony;

B. The underlying conviction used to enhance the second degree assault charge was obtained through a prior plea of guilty, which Ali alleges resulted from a proceeding in which appointed counsel provided him with ineffective assistance;

C. Ali's sentence for second degree assault was, in effect, enhanced based on facts not decided by the jury beyond a reasonable doubt.

3. The prosecutor was allowed to divide a single count indictment into multiple counts in order to pursue an enhanced second degree assault charge against Ali, in violation of Ali's right to due process and a fair trial under the Fourteenth and Sixth Amendments.

4. The prosecutor knowingly introduced the victim's false testimony, which the state had improperly coerced with the threat of taking away her children, in violation of Ali's right to due process under the Fourteenth Amendment.

5. The prosecutor's closing argument improperly expressed the prosecutor's opinion of Ali's guilt, in violation of Ali's right to due process under the Fourteenth Amendment.

6. Trial counsel provided ineffective assistance, in violation of Ali's Sixth Amendment ...


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