Czekalski v. NH State Prison, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jason A. Czekalski
v. 	Case No. 17-cv-64-JL
N.H. State Prison Warden
REPORT AND RECOMMENDATION
Petitioner, Jason A. Czekalski, has filed a petition for a
writ of habeas corpus under 28 U.S.C. § 2254. 	Before the court
is Mr. Czekalski’s Response (Doc. No. 42) to the April 22, 2021
Order (Doc. No. 41), which directed him either to delete Claims
8(a)-(c) and 9, or move to stay the petition to exhaust those
claims, as state corrective processes appeared to be unexhausted
as to those claims.
Claims 8(a)-(c) and 9 have been identified by this court as
follows:
8. 	Mr. Czekalski’s conviction violated his Sixth
Amendment right to the effective assistance of
appellate counsel in his direct appeal and his
Fourteenth Amendment right to due process, in that:
a. 	appellate counsel refused to consult with
and respond to Mr. Czekalski;
b. 	appellate counsel did not pursue all valid
appealable issues; and
c. 	appellate counsel made statements to the New
Hampshire Supreme Court [“NHSC”] for counsel’s
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own benefit that were false or misleading and
detrimental to Mr. Czekalski’s interests.
9. 	The NHSC, in Mr. Czekalski’s direct appeal of his
conviction, failed to follow its own rules by failing
to perform a meaningful inquiry into his complaints
about appellate counsel, in violation of Mr.
Czekalski’s Fourteenth Amendment right to due process.
Mr. Czekalski has conceded that Claims 8(a)-(c) are
unexhausted. 	See Response (Doc. No. 42). 	Aware that, under 28
U.S.C. § 2244(b), he would forego the ability to litigate the
deleted claims here and in a future successive petition, he asks
the court to delete those claims, so that his remaining claims
may proceed. 	Accordingly, consistent with Mr. Czekalski’s
request, the district judge should deem Claims 8(a)-(c) to be
deleted from the petition and dismissed as moot.
As to Claim 9, Mr. Czekalski has qualified his request to
have Claim 9 deleted from the petition upon this court first
finding that Claim 9 is unexhausted. 	See Response (Doc. No.
42). 	He argues that there is no higher state court in which he
could litigate his claim that the NHSC violated his Fourteenth
Amendment right to due process. 	Assuming without deciding that
the NHSC is the only state court that could decide whether the
petitioner’s due process right has been violated in the manner
alleged, the district court should nevertheless find Claim 9 to
be unexhausted as petitioner has not demonstrated that he placed
Claim 9 before the NHSC, “in such a way as to make it probable
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that a reasonable jurist would have been alerted to the
existence of the federal question,” Dutil v. Murphy, 550 F.3d
154, 158 (1st Cir. 2008) (citation and internal quotation marks
omitted), regarding the NHSC’s alleged violation of his due
process rights, and he has not shown that he would be
procedurally barred from litigating that claim in the NHSC at
this time. 	See Apr. 22, 2021 Order (Doc. No. 41) (discussing
exhaustion requirement as applied to Claims 8(a)-(c) and 9).
Then, upon finding that claim to be unexhausted, the district
judge should also deem Claim 9 to be deleted from the petition
and dismissed as moot, consistent with Mr. Czekalski’s request.
See Response (Doc. No. 42).
Conclusion
For the foregoing reasons, the district judge should: (1)
deem Claims 8(a)-(c) to be deleted from the petition and
dismissed as moot; and (2) find Claim 9 to be unexhausted and
then deem Claim 9 to be deleted from the petition and dismissed
as moot. 	Any objections to this Report and Recommendation must
be filed within fourteen days of receipt of this notice. 	See
Fed. R. Civ. P. 72(b)(2). 	The fourteen-day period may be
extended upon motion. 	Failure to file objections within the
specified time waives the right to appeal the district court’s
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order. 	See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168
(1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
May 19, 2021
cc: 	Jason A. Czekalski, pro se
Elizabeth C. Woodcock, Esq.
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