United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge.
the court is pro se petitioner Byron Barber's petition
for writ of habeas corpus (Doc. No. 1), which cites 28 U.S.C.
§ 2254 as the source of this court's authority, and
several addenda to that petition (Doc. Nos. 4, 5, 6, 8). At
the time Barber filed this petition, he was in pretrial
detention on charges pending in the New Hampshire Superior
Court, see State v. Barber, No. 216-2017-cr-00190
(N.H. Super., Hillsborough Cty., N.). He is currently
incarcerated at the New Hampshire State Prison. It appears
that Barber was convicted and sentenced in September 2011,
who had counsel appointed to represent him in the state court
proceedings, asserts in his petition here that pretrial
rulings by the Superior Court in his criminal case, including
that court's decision not to review Barber's pro se
filings, violated Barber's right to due process and equal
protection. Barber further asserts that the prosecutor in
Barber's case defamed Barber by referring to a prior
criminal conviction in Rhode Island that Barber asserts
violated his federal rights; and that Barber's
court-appointed counsel in the Superior Court proceeding has
provided him with ineffective assistance of counsel. See Doc.
No. 1. Barber contends that his right to a speedy trial was
not safeguarded in the Superior Court, as his period of
pretrial confinement exceeded six months. See Doc. No. 4.
Barber also complains generally about the misconduct of an
informant who provided a statement that was used in
initiating Barber's prosecution, and about the Manchester
Police Department's alleged illegal law enforcement
practices. Barber has asked this court to release him from
confinement. See Doc. No. 4, at 5.
undertaking § 2254 Rule 4 preliminary review, this court
decides whether the petition states claims that are
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).
eligible for federal habeas relief, a petitioner must show
that he has exhausted the remedies available to him in the
state courts for each of his claims, or that state corrective
processes are unavailable or ineffective to protect his
rights. See 28 U.S.C. § 2254(b)(1). "[A] petitioner
must pursue and await the results of all available appeals in
state court before [he] can file a petition for habeas corpus
in federal court." Batavitchene v. Clarke, No.
10-11854-DJC, 2011 U.S. Dist. LEXIS 36682, at *4, 2011 WL
1297935, at *1 (D. Mass. Apr. 5, 2011); see also Josselyn
v. Dennehy, 475 F.3d 1, 3 (1st Cir. 2007) . Direct
review in New Hampshire includes appellate review in the New
Hampshire Supreme Court.
timing of the filing of this matter, and Barber's recent
sentencing, indicates that Barber has not likely exhausted
any of his federal claims in the state court system.
Accordingly, the district judge should dismiss this action,
without prejudice, because of Barber's failure to
demonstrate exhaustion, unless, within thirty days of the
date of this Report and Recommendation, Barber can
demonstrate that all of the claims in his petition, alleging
violations of his federal rights, have been presented to, and
finally resolved by, the New Hampshire Supreme Court.
Certificate of Appealability
Rules Governing Section 2254 Proceedings ("§ 2254
Rules") require the court to "issue or deny a
certificate of appealability ["COA"] when it enters
a final order adverse to the party." § 2254 Rule
11(a). Here, the grounds for dismissal are purely procedural,
and not substantive.
When the district court denies a habeas petition on
procedural grounds without reaching the prisoner's
underlying constitutional claim, a COA should issue when the
prisoner shows, at least, that jurists of reason would find
it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling.
Slack v. McDaniel,
529 U.S. 473, 484 (2000). If the
claims asserted in the petition in this case are unexhausted,
reasonable jurists would not find it debatable that the
petition should be dismissed. Accordingly, if Barber fails to
show cause why this matter should not be dismissed, the
district judge ...