Kerner v. NH DOC, et al.

2014 DNH 104

• Court: District Court, D. New Hampshire
• Decided: May 8, 2014
• Docket: 13-CV-132-SM
• Status: Published

Opinion

Kerner v. NH DOC, et al. 13-CV-132-SM 5/8/14 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mark A. Kerner

v. Case No. 13-cv-132-SM Opinion No. 2014 DNH 104

Edward Reilly, Warden, Northern New Hampshire Correctional Facility

O R D E R

Mark Kerner has filed a habeas petition in this matter

pursuant to 28 U.S.C. § 2254. Before the court are Kerner’s:

motion to lift stay (doc. no. 11); motion to amend (doc. no. 12)

his habeas petition, including an amended petition (doc. no. 12-

1) and three addenda (doc. nos. 16-18) to the motion; motion for

independent in-camera review (doc. no. 14); a motion for an

evidentiary hearing (doc. no. 15); and motion to subpoena

witnesses (doc. no. 19).

On September 6, 2013, the court issued an order (doc. no. 8)

granting a stay in this matter to allow Kerner to return to the

state courts to exhaust the claims in his petition that were then

unexhausted. That order directed Kerner to supply the court with

regular status reports during the litigation of his state court

proceedings, and after the New Hampshire Supreme Court (“NHSC”)

issued a final order, to move this court to amend his petition and include exhibits to the motion, to demonstrate that each of

the claims in the petition was exhausted.

Kerner filed his motion to lift the stay, motion to amend,

and amended petition in a timely fashion. Kerner has not,

however, supplied the court with documentation demonstrating that

each of his federal claims has been presented to the NHSC for

consideration. Accordingly, Kerner has not demonstrated that his

NHSC filings exhausted his claims here. The court grants Kerner

leave to file the appropriate documentation, as directed below.

Conclusion

1. Kerner’s motions to lift the stay (doc. no. 11) and to

amend the petition (doc. no. 12) are granted. The clerk’s office

is directed to redocket Kerner’s proposed amended petition (doc.

no. 12-1) as the amended petition in this matter.

2. The motions for in-camera review (doc. no. 14), an

evidentiary hearing (doc. no. 15), and to subpoena witnesses

(doc. no. 19) are denied, without prejudice, as premature, as

they ask the court to address the merits of the petition prior to

the court’s completion of preliminary review.

3. Kerner is directed to supply this court, within thirty

days of the date of this order, with all of the documents he has

filed in the NHSC during the stay of this matter, including, but

2 not limited to, motions, petitions, briefs, and notices of

appeal, that served to present the federal habeas claims listed

in the amended complaint (doc. no. 12-1) in a manner adequate to

constitute exhaustion of those claims in the NHSC.

Failure to comply with the terms of this order may result in

the dismissal of this action.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

May 8, 2014

cc: Mark A. Kerner, pro se SM:jba