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Reid v. Reilly

United States District Court, First Circuit

May 28, 2013

George Reid
v.
Edward Reilly, Warden, Northern New Hampshire Correctional Facility

ORDER

LANDYA McCAFFERTY, Magistrate Judge.

George Reid has filed a petition for a writ of habeas corpus (doc. no. 1) pursuant to 28 U.S.C. § 2254. The petition is before the court for preliminary review to determine whether Reid's claims are facially valid and cognizable in a § 2254 action for federal habeas relief. See Rule 4 of the Rules Governing Section 2254 cases in the United States District Courts ("§ 2254 Rules").

Discussion

I. Standard of Review

Pursuant to § 2254 Rule 4, a judge is required to promptly examine any petition for habeas relief, and if "it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition." Id.

II. Background

Reid was convicted of two counts of aggravated felonious sexual assault and two counts of felonious sexual assault in Strafford County Superior Court ("SCSC"), and sentenced to serve 20 to 60 years in prison. Reid appealed his conviction to the New Hampshire Supreme Court ("NHSC"). That court affirmed Reid's conviction on March 16, 2011. See State v. Reid , 161 N.H. 569, 578, 20 A.3d 298, 306 (2011).

On March 9, 2012, Reid filed a "Motion to Set Aside the Verdict and Demand for a New Trial" in the SCSC. See Doc. No. 1-3, at 1. The SCSC denied Reid's motion. See Doc. No. 1-4, at 27. Reid appealed that denial to the NHSC, see Doc. No. 1-4, at 5, and the NHSC declined to consider his appeal. Reid filed a motion to reconsider the declination, see Doc. No. 1-5, which was denied on February 7, 2013, see Doc. No. 1-6 (State v. Reid, No. 2012-0839 (N.H. Feb. 7, 2013)).

Reid now files this action, raising the following claims:

1. Reid was denied the right to due process and the right to confront the witnesses against him, in violation of the Fifth, Sixth, and Fourteenth Amendments, because the trial court improperly admitted, as "recorded recollection[s], " inadmissible hearsay statements made by the victim prior to trial.
2. Reid was denied the right to a fair trial and his right against self-incrimination, in violation of the Fifth and Fourteenth Amendments, because the trial court denied a motion for mistrial after the prosecution, in its closing argument, made reference to Reid exercising his Fifth Amendment right to remain silent by not providing a statement during the police investigation of his case; and
3. Reid was denied the effective assistance of counsel, in violation of the Sixth and Fourteenth Amendments, because his attorney failed to investigate and present evidence at trial of Reid's erectile dysfunction.

III. Exhaustion

A person in custody pursuant to a judgment of the state court may seek a writ of habeas corpus on the grounds that he is incarcerated in violation of the federal constitution or other federal law. See 28 U.S.C. § 2254. Section 2254 requires that a petitioner exhaust each federal habeas claim for relief by presenting the federal claim to the state's highest ...


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