Benninghove v. Dept. of Corrections

• Court: District Court, D. New Hampshire
• Decided: December 10, 1996
• Docket: CV-96-578-B
• Status: Published

Opinion

Benninghove v . Dept. of Corrections CV-96-578-B 12/10/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

James Benninghove

v. Civil N o . 96-578-B

Commissioner, Department of Corrections

REPORT AND RECOMMENDATION

James Benninghove's petition for a writ of habeas corpus has

become before me for preliminary review pursuant to Habeas Rule 4

and Local Rule 4.3(d)(1). Upon consideration, I recommend

dismissal for lack of exhaustion of state remedies. See Fed. R.

Civ. P. 12(b)(1).

From the face of the petition, it is clear that the

allegations set forth therein are now pending before the New

Hampshire Supreme Court in the form of petitioner's appeal of the state superior court's denial of his motion to withdraw his plea.

See Petition for Writ of Habeas Corpus at 6. The petition

therefore is premature in that state remedies have not yet been

exhausted. While petitioner is understandably frustrated at the

state's delay in responding to his arguments, delay of the

magnitude here at issue cannot, at this time, justify this

court's assuming jurisdiction over this case absent exhaustion.

I f , however, the New Hampshire Supreme Court has not ruled on the matter by February 6, 1997, Petitioner may refile with this court

and receive the benefit of a rebuttable presumption that the

state’s appellate process is ineffective, thereby excusing

Petitioner from the exhaustion requirement. C f . Carpenter v .

Young, 50 F.3d 869, 870-71 (10th Cir. 1995).

Because "it plainly appears from the face of the petition

and [the] exhibits annexed to it that the petitioner is not

entitled to relief in the district court" because he has not yet

exhausted his state law remedies, see Habeas Rule 4 , I recommend

that the petition (document n o . 1 ) be summarily dismissed, see

id. Any objection to this report and recommendation must be

filed within ten days of receipt of this notice. Failure to file

an objection within the specified time waives the right to appeal

the district court's order. See Unauthorized Practice of Law

Committee v . Gordon, 979 F.2d 1 1 , 13-14 (1st Cir. 1992); United

States v . Valencia-Copete, 792 F.2d 4 , 6 (1st Cir. 1986).

James R. Muirhead United States Magistrate Judge

Date: December 1 0 , 1996

cc: James Benninghove, pro se The Office of the Attorney General, State of New Hampshire Howard J. Zibel, Clerk, New Hampshire Supreme Court