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Ayer v. Gerry

United States District Court, District of New Hampshire

May 22, 2014

Daniel E. Ayer, Sr.
v.
Richard M. Gerry, Warden, New Hampshire State Prison Opinion No. 2014 DNH 087

ORDER

STEVEN J. MCAULIFFE United States District Judge

Daniel Ayer filed a petition for a writ of habeas corpus (doc. no. 1) in this court, pursuant to 28 U.S.C. § 2254, on September 26, 2007. This matter is before the court for preliminary review pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, and for a ruling on pending motions.

Background

Shortly after Ayer filed the initial habeas petition (doc. no. 1) in this matter, the magistrate judge issued a report and recommendation (doc. no. 8) identifying and numbering ten claims for relief (with subparts), recommending the dismissal of claim 4, finding that claims 1, 3-7, 9, and 10 had been properly exhausted and were ready to proceed, and further finding that Ayer had not demonstrated that claims 2(a) - 2 (h), all asserting that Ayer's trial counsel was ineffective, had been exhausted. Simultaneously with the report and recommendation (doc. no. 8), the court issued an order (doc. no. 9) directing petitioner either to forego his unexhausted claims, or to notify the court that he wished to return to the state court to exhaust his unexhausted claims, and, once they were exhausted, to file an amended petition in this court to so demonstrate. The report and recommendation was approved on November 26, 2007 (doc. no. 11).

At Ayer's request, the court stayed this matter on June 19, 2008. Ayer then spent more than five years pursuing postconviction relief in the state courts. On October 23, 2013, upon Ayer's assertion that his state court proceedings were complete, this court lifted the stay and directed Ayer to file a renewed motion for relief. Ayer has now filed a motion entitled "Motion for Summary Judgment" (doc. no. 50), a motion for court-appointed counsel (doc. no. 51), and a "Renewed Motion for Relief" (doc. no. 52) .

Discussion

I. Preliminary Review

A. Construction of Pleadings

The court finds that Ayer's motion for summary judgment (doc. no. 50) and his renewed motion for relief (doc. no. 52) are in fact requests to amend his original habeas petition (doc. no. 1) to add two ineffective assistance of trial counsel claims, and to demonstrate exhaustion. The court thus construes both motions as motions to amend the petition, and grants the motions. The original petition (doc. no. 1), along with the assertions in the motions to amend (doc. nos. 50 and 52), will be considered to be the amended petition in this matter for all purposes. The court thus proceeds to review the amended petition, pursuant to § 2254 Rule 4 .

B. Standard

In undertaking § 2254 Rule 4 preliminary review, this court decides whether the petition contains sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face and cognizable in a federal habeas action. See McFarland v. Scott, 512 U.S. 849, 856 (1994) ("Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face."). When a habeas petitioner is proceeding pro se, the assertions contained in the petition are construed liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).

C. Claims

In the 2007 report and recommendation (doc. no. 8), the court identified the following cognizable claims for relief:

1. Ayer was denied his Fifth, Sixth, and Fourteenth Amendment rights to represent himself at trial when the trial court "forced" him to have ...

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