Dupont v. NHSP Warden

2003 DNH 119

• Court: District Court, D. New Hampshire
• Decided: July 15, 2003
• Docket: CV-03-287-M
• Status: Published

Opinion

Dupont v . NHSP Warden CV-03-287-M 07/15/03 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Timothy Dupont, Petitioner

v. Civil N o . 03-287-M Opinion N o . 2003 DNH 119 Jane Coplan, Warden, New Hampshire State Prison, Respondent

O R D E R

Petitioner, Timothy Dupont, was tried and convicted by a

state superior court jury of sixty-nine counts of felonious

sexual assault upon his stepdaughter. The New Hampshire Supreme

Court affirmed all convictions on appeal. State v . Dupont, __

N.H. __, 816 A.2d 954 (2003). Petitioner, through counsel, then

filed a federal petition for habeas corpus. See 28 U.S.C. §

2254. That petition i s , however, facially deficient insofar as

it fails to allege that petitioner’s appeal to the state supreme

court raised the federal constitutional issues he seeks to

advance in this forum (i.e., that he “exhausted” his federal

claims in state court). See 28 U.S.C. § 2254(b) and ( c ) . See

also Barresi v . Maloney, 296 F.3d 48 (1st Cir. 2002). As the

Barresi court noted: Barring certain exceptional circumstances . . . 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. This exhaustion requirement, codified at 28 U.S.C. § 2254(b) and ( c ) , embodies principles of federal-state comity and is designed to provide state courts with an initial opportunity to pass upon and correct alleged violations of their prisoners’ federal rights. The petitioner bears the heavy burden of demonstrating satisfaction of the exhaustion requirement. To carry that burden, the petitioner must show that he tendered his federal claim to the state’s highest court in such a way as to make it probable that a reasonable jurist would have been alerted to the existence of the federal question.

Id. at 51 (emphasis supplied) (citations and internal punctuation

omitted). Simply stated, Dupont’s petition fails to meet that

burden.

Conclusion

Petitioner is afforded thirty (30) calendar days from the

date of this order within which to file an amended petition for

habeas corpus relief. In i t , he shall state whether or not he

has exhausted his state remedies with regard to the federal

claims he seeks to advance in this court (by, for example,

attaching copies of his state notice of appeal and appellate

2 brief and by pointing to specific invocations of federal

constitutional rights in those documents). 1

Counsel might also consider recasting the petition in terms

of the applicable standard of review. See 28 U.S.C. §

2254(d)(1). See also Williams v . Taylor, 529 U.S. 3 6 2 , 412-13

(2000). In other words, assuming petitioner raised his federal

constitutional claims before the state supreme court “face-up and

squarely,” Martens v . Shannon, 836 F.2d 715, 717 (1st Cir. 1988),

his habeas petition should articulate whether (and why) he

believes that court’s resolution of those issues was “contrary

t o , or involved an unreasonable application o f , clearly

established Federal law, as determined by the Supreme Court of

the United States.” 28 U.S.C. § 2254(d)(1). As counsel is no

doubt aware, it is not enough to simply assert that the state

court resolved the issues before it “incorrectly.” See Taylor,

529 U.S. at 410-11 (“[T]he most important point is that an

unreasonable application of federal law is different from an

1 A brief review of the New Hampshire Supreme Court’s opinion in petitioner’s case does not reveal any basis to think petitioner squarely presented any federal issues in that appeal; the court resolved the issues raised by petitioner on state constitutional and common law grounds.

3 incorrect application of federal law. . . . [A] federal habeas

court may not issue the writ simply because that court concludes

in its independent judgment that the relevant state-court

decision applied clearly established federal law erroneously or

incorrectly. Rather that application must also be

unreasonable.”) (emphasis in original).

If petitioner fails to file a timely amended petition that

adequately demonstrates exhaustion, his current petition will be

dismissed without prejudice.

SO ORDERED.

Steven J. McAuliffe United States District Judge

July 1 5 , 2003

cc: Paul J. Haley, Esq.