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Ali v. Reilly

United States District Court, First Circuit

May 20, 2013

Dominic S. Ali
v.
Edward Reilly, Warden, Northern New Hampshire Correctional Facility

REPORT AND RECOMMENDATION

LANDYA McCAFFERTY, Magistrate Judge.

Dominic Ali has filed a motion to drop the unexhausted claims in his § 2254 petition (doc. no. 20), identified as Claims 5 and 6(h) in the May 2, 2013, report and recommendation (doc. no. 17).

The May 2, 2013, report and recommendation (doc. no. 17), which remains pending, listed nine claims with subparts, asserted by Ali in the § 2254 petition, and further identified Claims 5 and 6(h) as unexhausted. That report and recommendation recommended that the district judge dismiss Claim 1 and reinstate Claim 9, which the court had previously dismissed. In a May 2, 2013, order (doc. no. 16), this court further granted Ali leave to file either: an amended petition demonstrating exhaustion of all claims; a motion to stay the action; or a motion to drop Claims 5 and 6(h).[1]

Ali has moved to drop Claims 5 and 6(h) (doc. no. 20) in response to the court's May 2, 2013, order (doc. no. 16). That motion should be granted, so that the petition may proceed.

The court, on this date, has directed respondent to file an answer or other response to the § 2254 petition, pursuant to Rules 4 and 5 of the Rules Governing Section 2254 Cases in the United States District Courts. The district judge should further direct respondent to address, in its answer or other response to the petition, Claims 2-4, 6(a-g), and 7-9, reproduced below:

1
2. Ali's 2008 enhanced conviction and sentence for second degree assault violated his Fourteenth Amendment right to due process and his Sixth Amendment right to a fair trial, in that:
a. The statute used to enhance the charge, RSA § 173-B:9, IV(b), is ambiguous, and the trial court failed to follow the rule of lenity when it allowed Ali to be convicted and sentenced of second degree assault charged as a class A felony;
b. The 2004 conviction used to enhance the second degree assault charge was obtained through Ali's nolo contendere plea, which Ali entered neither knowingly nor voluntarily, and which resulted from ineffective assistance of trial counsel;
c. Ali's 2008 sentence for second degree assault was enhanced based on facts not decided by the jury.
3. Ali's 2008 conviction violated his Sixth and Fourteenth Amendment rights to due process and a fair trial, in that, motivated by racial bias, the trial court allowed the prosecutor to divide a single count indictment into multiple counts, which overcharging resulted in jury confusion, harassment of Ali, and unfair prejudice.
4. Ali's 2008 conviction violated his Sixth and Fourteenth Amendment rights to due process and a fair trial, in that his conviction was based on the victim's false testimony, which the prosecutor knew to be false, and which the state had improperly coerced from the victim.
5
6. Attorneys Helen Sullivan and Aileen O'Connell violated Ali's Sixth Amendment right to the effective ...

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