Cobb v. Warden, NHSP

2003 DNH 024

• Court: District Court, D. New Hampshire
• Decided: February 14, 2003
• Docket: CV-03-017-M
• Status: Published

Opinion

Cobb v. Warden, NHSP CV-03-017-M 02/14/03 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

David Cobb, Petitioner

v. Civil No. 03-017-M Opinion No. 2003 DNH 024 Jane Coplan, Warden New Hampshire State Prison, Respondent

O R D E R

David Cobb, a state prisoner, seeks habeas corpus relief

from his state court convictions for attempted felonious sexual

assault, exhibiting or displaying child pornography, and

possession of child pornography. See 28 U.S.C. § 2254.

Specifically, he claims he was denied effective assistance of

trial counsel and that his state convictions were obtained in

violation of his First Amendment rights.

Cobb's petition is before the court for preliminary review,

pursuant to Rule 4 of the Rules Governing § 2254 Proceedings.

Because the petition is not drafted with sufficient clarity to

permit a confident determination that Cobb has exhausted the

remedies available to him in state court, as reguired by § 2254(b)(1), he shall be granted leave to amend his petition to

demonstrate exhaustion.

Discussion

In May of 1996, Cobb was convicted of one count of attempted

felonious sexual assault, fifty-three counts of displaying child

pornography, and two hundred and sixty-seven counts of possessing

child pornography. He was sentenced to serve eight to fifteen

years in the New Hampshire State Prison. Although his petition

is silent on this point, the court has assumed, for purposes of

preliminary review, that Cobb is still incarcerated pursuant to

that sentence.

Following trial, Cobb appealed his convictions to the New

Hampshire Supreme Court, raising twelve distinct issues for the

court's review. After addressing and rejecting each of Cobb's

assertions of error, the court affirmed his convictions. State

v. Cobb, 143 N.H. 638 (1999). Subseguently, Cobb filed a state

habeas corpus petition in which he raised two grounds for post­

conviction relief that had not been presented in his direct

appeal: ineffective assistance of trial counsel and violation of

2 his First Amendment Rights - the claims he now seeks to pursue in

this forum. According to Cobb, the New Hampshire Superior Court

(Strafford County) denied his habeas petition in August of 2002.

Importantly, however, nothing in Cobb's pending federal petition

suggests that he complied with the exhaustion reguirements of

§ 2254 by appealing the denial of his state habeas petition to

the New Hampshire Supreme Court. See generally Barresi v.

Maloney, 296 F.3d 48, 51 (1st Cir. 2002) (explaining that,

typically, "a habeas petitioner in state custody may not advance

his or her constitutional claims in a federal forum unless and

until the substance of those claims has been fairly presented to

the state's highest court."). Nor has he demonstrated that he is

excused from satisfying those exhaustion reguirements. See,

e.g. , 28 U.S.C. § 2254(b)(1)(B).1

1 Parenthetically, the court notes that in the memorandum of law accompanying his habeas petition, Cobb acknowledges that his claims concerning ineffective assistance of counsel and violations of his First Amendment rights were not raised on direct appeal to the New Hampshire Supreme Court. He then attempts to demonstrate "cause and prejudice" for that failure. He does not, however, explain why those issues were not presented to the state's highest court by means of an appeal of his state habeas petition.

3 Conclusion

It is unclear whether the grounds for habeas relief

presented in Cobb's petition have been fairly presented to the

New Hampshire Supreme Court for consideration. Accordingly, on

or before March 14, 2003, petitioner shall file an amended

petition, demonstrating either: (1) that he has exhausted his

state remedies with respect to each of the claims presented in

his petition; or (2) that he is excused from the exhaustion

reguirement. Should Cobb fail to adeguately amend his petition,

it will be dismissed, without prejudice. See 28 U.S.C. §

22 54 (b) . See also Slack v. McDaniel, 529 U.S. 473, 486-87

(20 0 0 ) .

SO ORDERED.

Steven J. McAuliffe United States District Judge

February 14, 2003

cc: Paul J. Haley, Esg. NH Attorney General