Gray v. Zenk, Warden NHSP

2017 DNH 194

• Court: District Court, D. New Hampshire
• Decided: September 15, 2017
• Docket: 15-cv-508-LM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jeffrey M. Gray

v. Civil No. 15-cv-508-LM Opinion No. 2017 DNH 194 Michael A. Zenk, Warden, New Hampshire State Prison

O R D E R

In this action, petitioner Jeffrey Gray has filed a habeas

petition (doc. no. 1), an amended habeas petition (doc. no. 7),

and an addendum (doc. no. 28) to the amended petition,

challenging as unconstitutional the state conviction and

sentence underlying his present incarceration. For reasons set

forth below, Gray is directed to show cause, within fourteen

days of the date of this Order, why this habeas action should

not be dismissed, on the grounds set forth herein, without

prejudice to refiling after the New Hampshire Supreme Court

(“NHSC”) issues a final decision on Gray’s pending direct

appeal, State v. Gray, No. 2012-663 (N.H.). Because Gray’s

direct appeal is still pending before the NHSC, the claims

asserted in that appeal appear to be neither ripe nor exhausted. Discussion

I. Ripeness

“Ordinarily, a state criminal case is ripe for the

ministrations of a federal habeas court only after completion of

the state proceedings (that is, after the defendant has been

tried, convicted, sentenced, and has pursued available direct

appeals).” Allen v. Attorney Gen. of Me., 80 F.3d 569, 572 (1st

Cir. 1996). “The two recognized exceptions to that general rule

are certain cases involving either a colorable double jeopardy

claim challenging the government’s right to try the petitioner,

or a speedy trial claim where the relief sought is an immediate

trial rather than a release from custody.” Rojas v.

Hillsborough Cty. Super. Ct., N. Dist., No. 13-CV-495-JL, 2013

U.S. Dist. LEXIS 178193, at *2-*3, 2013 WL 6731933, at *1

(D.N.H. Nov. 22, 2013), R&R approved, 2013 U.S. Dist. LEXIS

179336, at *1, 2013 WL 6731933, at *1 (D.N.H. Dec. 17, 2013).

Abstention principles provide a basis for dismissing premature

habeas petitions. See generally In re Justices of Super. Ct.

Dep’t of Mass. Tr. Ct., 218 F.3d 11, 18 (1st Cir. 2000). Gray’s

petition appears to be unripe and subject to dismissal, because

the direct appeal of his criminal conviction remains pending.

2 II. Exhaustion

To be eligible for federal habeas relief, a petitioner must

show that he has exhausted the remedies available to him in the

state courts for each of his claims, or that state corrective

processes are unavailable or ineffective to protect his rights.

See 28 U.S.C. § 2254(b)(1). “[A] petitioner must pursue and

await the results of all available appeals in state court before

[he] can file a petition for habeas corpus in federal court.”

Batavitchene v. Clarke, No. 10-11854-DJC, 2011 U.S. Dist. LEXIS

36682 at *4, 2011 WL 1297935 at *1 (D. Mass. Apr. 5, 2011); see

also Josselyn v. Dennehy, 475 F.3d 1, 3 (1st Cir. 2007). Direct

review in New Hampshire includes appellate review in the NHSC.

Some, but not all, of Gray’s claims have been exhausted in

state court collateral challenges to his conviction.

Accordingly, his petition is “mixed,” in that it contains both

exhausted and unexhausted claims. The court may either dismiss

a mixed petition, without prejudice, for failure to exhaust all

of the claims in the petition, or enter a stay while the

petitioner exhausts the unexhausted claims. See Rhines v.

Weber, 544 U.S. 269, 275-76 (2005). District courts have

discretion to stay a mixed federal habeas petition “only in

limited circumstance.” Id. at 277. Such circumstances

generally arise when a diligent petitioner’s ability to bring

3 timely meritorious claims would be jeopardized if no stay were

entered. See id. at 277-78.

Because Gray’s direct appeal has not concluded, the statute

of limitations for filing a federal habeas action under § 2254

has not begun to run. See 28 U.S.C. § 2244(d)(1)(A) (one-year

limitations period runs “from the latest of . . . the date on

which the judgment became final by the conclusion of direct

review or the expiration of the time for seeking such review”

(emphasis added)); see also McQuiggin v. Perkins, 133 S. Ct.

1924, 1929 (2013); Holland v. Florida, 560 U.S. 631, 641 (2010)

(“[Petitioner]’s 1-year limitations period did not begin to run

until [the United States Supreme] Court denied [Petitioner]’s

petition for certiorari from the state court’s denial of relief

on direct review.” (emphasis added)). Therefore, dismissal of

this habeas action would not jeopardize Gray’s ability to file a

timely habeas action, containing all of his exhausted claims,

once the direct appeal is concluded.

For that reason, a stay would serve no useful purpose in

this matter. Accordingly, this habeas action is properly

dismissed, without prejudice to Gray’s ability to refile a

habeas action, including all of his exhausted claims, once the

NHSC has decided his direct appeal, unless Gray can demonstrate

cause for the court to find otherwise. Cf. Wood v. Milyard, 132

4 S. Ct. 1826, 1833 (2012) (district court may sua sponte dismiss

a habeas petition on timeliness grounds where the untimeliness

of the petition is apparent on the face of the petition, the

respondent has not deliberately waived the defense, and the

petitioner has “a fair opportunity to present his position”).

Conclusion

For the foregoing reasons, this action will be dismissed

without prejudice in its entirety in fourteen days, unless,

prior to that date, Gray can show cause why the petition should

not be dismissed as unripe, and for lack of complete exhaustion.

SO ORDERED.

__________________________ Landya B. McCafferty United States District Judge

September 15, 2017

cc: Jeffrey M. Gray, pro se Elizabeth C. Woodcock, Esq.