Charles Glen, Jr. v. NH DOC Commissioner

2017 DNH 109

• Court: District Court, D. New Hampshire
• Decided: June 8, 2017
• Docket: 16-cv-6-JD
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Charles Glenn, Jr.

v. Case No. 16-cv-006-JD Opinion No. 2017 DNH 109 New Hampshire Department of Corrections, Commissioner

O R D E R

Charles Glenn, Jr. filed this federal habeas action, see

Petition (Doc. No. 1), pursuant to 28 U.S.C. § 2254, asserting

that his conviction and sentence for second degree murder was

obtained in violation of his constitutional rights. This matter

has been stayed upon Glenn’s assertion that he intends to amend

his complaint to add additional claims that have not yet been

exhausted in the state courts, but that he intends to litigate

in state court post-conviction proceedings.

In January 2016, the state trial court appointed counsel to

represent Glenn for the purposes of preparing and litigating

state post-conviction challenges to his conviction and/or

sentence. Glenn has provided this court with copies of letters

(Doc. Nos. 25-1, 30-1) sent to him by his state court counsel,

dated December 13, 2016, and February 17, 2017, indicating that

counsel was reviewing “the extensive record and case materials

for potential issues for the State collateral review,” and that

the review could take several months. Doc. No. 25-1. The February 2017 letter indicates that the state court has not

imposed any deadline on Glenn’s ability to seek post-conviction

relief.

In the interest of affording Glenn the opportunity to raise

all of his federal claims in this action, this court has stayed

Glenn’s case pending the filing and resolution of the

anticipated post-conviction proceedings in the state court. See

Jan. 11, 2017 Order (Doc. No. 26), at 2. Such a stay cannot be

indefinite.

[T]he district court’s discretion in structuring the stay is limited by the timeliness concerns reflected in AEDPA [the Antiterrorism and Effective Death Penalty Act]. A mixed petition should not be stayed indefinitely. . . . Without time limits, petitioners could frustrate AEDPA’s goal of finality by dragging out indefinitely their federal habeas review. Thus, district courts should place reasonable time limits on a petitioner’s trip to state court and back.

Rhines v. Weber, 544 U.S. 269, 277–78 (2005) (citing Zarela v.

Artuz, 254 F.3d 374, 381 (2d Cir. 2001) (district courts “should

explicitly condition the stay on the prisoner’s pursuing state

court remedies within a brief interval, normally 30 days, after

the stay is entered”)).

This court will lift the stay in this action within sixty

days of the date of this Order, unless Glenn, within that time

period, files either: (1) a motion to maintain the stay,

demonstrating that Glenn or counsel appointed on his behalf in

state court, has filed a post-conviction proceeding in state

2 court, or (2) a motion to extend the stay beyond sixty days,

demonstrating good cause for an extension. Glenn is notified

that inaction by state court counsel, without more, may not be

considered good cause by this court, given the length of time

state court counsel has been appointed, and the lack of

information provided to this court indicating when or whether

court-appointed counsel may file a state post-conviction

proceeding on Glenn’s behalf.

Conclusion

The court directs as follows:

1. The stay in this case is continued for sixty days.

The court will issue an Order lifting the stay thereafter, if

Glenn fails to respond to or comply with this Order.

2. Prior to the expiration of the sixty day period, Glenn

may file a motion seeking to maintain the stay, demonstrating

that Glenn, pro se or through appointed counsel, has filed a new

state post-conviction proceeding, and attaching as an exhibit to

that motion a copy of that state court petition or other

pleading.

3. Glenn may move to extend the sixty day deadline by

filing a motion demonstrating good cause for such extension.

The inaction of state court-appointed counsel alone may not

suffice to demonstrate good cause.

3 SO ORDERED.

______________________________ Andrea K. Johnstone United States Magistrate Judge

June 8, 2017

cc: Charles Glenn, Jr., pro se Elizabeth C. Woodcock, Esq. Christine List, Esq., NH Appellate Defender-courtesy copy Stephanie Hausman, Esq., NH Appellate Defender–courtesy copy