Grant v. NH State Prison

• Court: District Court, D. New Hampshire
• Decided: August 23, 1995
• Docket: CV-95-371-M
• Status: Published

Opinion

Grant v . NH State Prison CV-95-371-M 08/23/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Eric Grant, Petitioner, v. Civil N o . 95-371-M New Hampshire State Prison Warden, Respondent.

O R D E R

Currently before the court is petitioner's motion for

appointment of counsel. For the reasons discussed below, the

motion is held in abeyance pending amendment of the original

petition for writ of habeas corpus.

BACKGROUND

Petitioner, Eric Grant, is a prisoner at the New Hampshire

State Prison, serving a 27 year to life sentence for second

degree murder. On July 3 1 , 1995, Grant filed a petition for writ

of habeas corpus with this court, alleging that "[p]etitioner did

not make a knowing intelligent or voluntary guilty plea because

he was under the influence of psychoactive medication and was

suffering from depression at the time of his pleas." The petition further avers that "[p]etitioner was denied the

effective assistance of counsel."

On the same date that Grant filed his petition, he also

filed the motion for appointment of counsel now under consideration. In support of his motion, petitioner contends he

has "insufficient legal knowledge or expertise to represent

himself and present further legal argument in support of his

petition for writ of habeas corpus." Petitioner represents to

the court that "there are facts and law in dispute that are

complicated and substantial enough for the Court to appoint

Counsel."

DISCUSSION

28 U.S.C § 2254 sets the applicable standard and criteria

that must be followed prior to addressing a petition for writ of

habeas corpus. Succinctly stated, 28 U.S.C. § 2254(b) provides

that federal habeas corpus relief may not be granted "unless it

appears that the applicant has exhausted the remedies available

in the State . . . ." Within the context of 28 U.S.C § 2254,

prior to a petitioner being heard on an application for writ of

habeas corpus in federal court, a state court must have had a

2 full opportunity to decide the issues presented in the petition.

Coviello v . Massachusetts, 528 F. Supp. 916, 917-918 (D. Mass.

1981). For remedies to be considered "exhausted" relative to a

claim presented for federal habeas review, the particular claim

must have been fairly presented and addressed at the state level.

Id. at 917; Pitchess v . Davis, 421 U.S. 4 8 2 , 490 (1975)

(respondent failed to exhaust available state remedies on the

claim which formed the basis for the unconditional writ, thereby

warranting no relief for the claim); Picard v . Connor, 404 U.S.

270 (1971) (exhaustion of state remedies is required as a

prerequisite to consideration of each claim sought to be

presented in federal habeas). In determining whether a claim

articulated in a habeas petition has been fairly presented, a

federal court may look to the opinion of the highest state court,

the appellate briefs submitted by the parties, or any

intermediate appellate court decisions. Id.; Smith v . Digmon,

434 U.S. 332 (1978).

In the case at hand, Grant raises two grounds for habeas

relief. First, he alleges his plea of guilty was unlawfully

induced, obtained involuntarily, and made without any

understanding of the nature of the charges against him and the

3 consequences of his plea. Second, Grant contends he was denied

effective assistance of counsel.

Although petitioner has facially articulated recognized

grounds for habeas consideration, he has failed to satisfy the court that he has fully exhausted his state remedies on these

claims. He simply presents an Order from the New Hampshire

Supreme Court which states:

Having considered the briefs and oral arguments of the parties, the court concludes that a formal written opinion is not necessary for the disposition of this appeal. The decision below is affirmed.

The Order does not show that petitioner raised in the state

courts the specific claims upon which he now seeks federal habeas

relief. This being the case, petitioner has not sufficiently

established that he has exhausted available state judicial

remedies, a necessary prerequisite for invocation of federal

review. Petitioner shall, therefore, be allowed thirty (30) days

from the date of this order in which to cure the deficiency by

filing an amended petition which demonstrates that he has

exhausted all available state review of the issues he seeks to

raise. Until such cure, any motions pertaining to the petition

4 for writ of habeas corpus, including the motion for appointment

of counsel, will be held in abeyance. Failure to cure the

deficiency by the time prescribed will result in dismissal of the

petition.

SO ORDERED.

Steven J. McAuliffe United States District Judge

August 2 3 , 1995

cc: Eric Grant, pro se