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Peterson v. Gerry

United States District Court, D. New Hampshire

July 13, 2015

Warren E. Peterson,
v.
Richard Gerry, Warden, New Hampshire State Prison.

REPORT AND RECOMMENDATION

ANDREA K. JOHNSTONE, Magistrate Judge.

Warren E. Peterson filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 (doc. no. 1) and an "Amended Petition" (doc. no. 9) (collectively, "Petition"). The Petition is here for preliminary review to determine whether the claims for relief may proceed. See Rule 4 of the Rules Governing Section 2254 cases ("§ 2254 Rules"); LR 4.3(d)(4)(A).

§ 2254 Rule 4 Standard

In undertaking § 2254 Rule 4 preliminary review, this court decides whether the petition states facially valid claims. The court may dismiss any petition that appears legally insufficient on its face. See McFarland v. Scott, 512 U.S. 849, 856 (1994). In conducting this review, the court construes pro se petitions liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).

Procedural History

On September 10, 1999, Peterson pleaded guilty to, and was convicted of, two counts of criminal threatening, burglary, witness tampering, and kidnapping, arising out of Peterson's kidnapping of a victim and holding her hostage at gunpoint. On November 10, 1999, the New Hampshire Superior Court in Rockingham County sentenced Peterson to consecutive sentences for burglary, kidnapping, and both criminal threatening counts, and to a concurrent sentence for witness tampering, resulting in a sentence totaling 20 to 50 years. See Doc. No. 1, at 21 (State v. Peterson, No. 1999-S-601 (N.H. Super. Ct., Rockingham Cty. Oct. 1, 2013), slip. op. at 1 (recounting procedural history) (hereinafter "RCSC October 2013 Order").

On March 21, 2001, Peterson filed a motion to withdraw his guilty plea. The state court denied that motion. The New Hampshire Supreme Court declined to accept Peterson's appeal of that order on October 9, 2001. See RCSC October 2013 Order, slip op. at 1.

At some point after the November 1999 sentencing, Peterson requested a sentence review. The Sentence Review Board held a hearing in September 2001 and increased Peterson's sentence to 25 to 70 years. See id.

On November 25, 2002, Peterson, through counsel, filed a petition in federal court under 28 U.S.C. § 2254, challenging his September 1999 conviction, claiming that his plea of guilty was not knowing and voluntary. See Peterson v. Warden, No. 02cv-548-JD (D.N.H., filed Nov. 25, 2002). The court granted respondent's motion for summary judgment and rejected Peterson's claims challenging his conviction on the merits. See id., 2003 DNH 149, 2003 U.S. Dist. LEXIS 15101 (D.N.H. Aug. 29, 2003), ECF No. 17.

In 2013, Peterson filed a post-conviction proceeding in the state court, asserting that his conviction and consecutive and/or enhanced sentences for multiple counts violated the prohibition against double jeopardy. See Doc. No. 1, at 22 (RCSC October 2013 Order, slip. op. at 2). The state court denied that petition, finding both that Peterson's claims were procedurally defaulted, and that they lacked merit. See Doc. No. 1, at 24-28 (RCSC October 2013 Order, slip op. at 4-8). On January 10, 2014, the New Hampshire Supreme Court declined to accept Peterson's appeal of that order.

Claims

In January 2015, Peterson filed the Petition in this court, asserting the following claims (doc. no. 1):

(1) a double jeopardy/fair notice due process claim, challenging the validity of his burglary and criminal threatening convictions, asserting that: (a) state law, N.H. Rev. Stat. Ann. § 635:1, IV, did not authorize his conviction for both offenses; and (b) the text of that statute did not provide him with fair warning that he could be convicted and sentenced for both offenses;
(2) a double jeopardy/fair notice due process claim, asserting that: (a) in convicting and sentencing him on two counts of criminal threatening, the state bifurcated one continuous act into two offenses resulting in two consecutive sentences; and (b) Peterson did not have fair notice that moving the orientation of the gun from the victim's head to the victim's ...

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