LeBlanc v. Northern NH Correctional Facility, Warden

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Scott LeBlanc
v. 	Case No. 18-cv-1245-LM
State of New Hampshire
REPORT AND RECOMMENDATION
Scott LeBlanc has filed a “Motion for Stay and Abeyance of
Petition Filed Under 28 U.S.C. § 2254 for a Writ of Habeas
Corpus.” 	(Doc. No. 1). 	The motion is before this magistrate
judge pursuant to LR 72.1, for a report and recommendation
(“R&R”) as to its disposition.
Background
LeBlanc is a prisoner of the State of New Hampshire who was
convicted in state court of one or more counts of aggravated
felonious sexual assault. 	See State v. LeBlanc, No. 2016-0353,
2017 N.H. LEXIS 198, 2017 WL 4770564 (N.H. Sept. 20, 2017)
(citing RSA 632–A:2 (2016)). 	He appealed his convictions, and
on September 20, 2017, the New Hampshire Supreme Court issued an
unpublished opinion affirming those conviction. 	See id.
LeBlanc filed a motion for a new trial in the trial court
on October 25, 2018. 	See Mot. To Stay (Doc. No. 1), at 2. 	He
filed the instant motion to stay on December 26, 2018, seeking
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to stay federal habeas corpus proceedings in this court while he
pursues a new trial in the state courts.
LeBlanc has not filed a petition for writ of habeas corpus
in federal district court, however. 	Therefore, this court
issued an Order notifying LeBlanc that under Rhines v. Weber,
544 U.S. 269, 277 (2005), one of the factors the court must
consider in deciding whether to grant a motion for stay and
abeyance is “whether the grounds upon which the petitioner seeks
federal habeas relief are ‘plainly meritless,’” April 3, 2020
Order (Doc. No. 8), at 1, something this court could not do
because LeBlanc had not filed a federal habeas petition, or any
other document, stating substantive grounds for relief. 	The
court directed the Clerk of Court to send a blank form petition
- “Petition for Relief From a Conviction or Sentence By a Person
in State Custody (Petition Under 28 U.S.C. § 2254 for a Writ of
Habeas Corpus),” (AO 241), – to LeBlanc and instructed LeBlanc
to complete the form, listing all grounds for relief, with
supporting facts, that he intended to pursue in federal habeas,
and file it as an exhibit to his motion for stay and abeyance
within 30 days. 	See id. at 1-2. 	The Order alerted LeBlanc that
upon receipt of his completed habeas petition, the court would
determine whether a stay should be entered so that LeBlanc could
exhaust his federal habeas claims in the state courts, whether
the case should otherwise proceed, or whether the case should be
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dismissed. 	See id. at 2. 	The court also warned LeBlanc that
failure to comply with the Order would result in a
recommendation that the motion for stay and abeyance be denied.
See id. at 2.
LeBlanc filed a response (Doc. No. 9) to the court’s Order,
on April 23, 2020. 	He did not file a petition for writ of
habeas corpus as an exhibit. 	Instead, LeBlanc provided the
court an update on the status of his state court proceedings and
reargued that there is good cause for the court to grant the
motion for stay and abeyance.
Discussion
The Antiterrorism and Effective Death Penalty Act of 1996,
28 U.S.C. § 2244(d)(1), establishes a one-year statute of
limitations for a state prisoner to file a federal habeas corpus
petition under 28 U.S.C. § 2254. 	The one-year period generally
starts when a prisoner’s conviction becomes final, at the
conclusion of a direct appeal or the expiration of time for
seeking a direct appeal. 	See § 2244(d)(1)(A). 	The statute of
limitations is tolled, however, during the time in “which a
properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or
claim is pending.” 	§ 2244(d)(2).
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In Rhines v. Weber, the Court held that when presented with
a timely-filed habeas petition containing both exhausted and
unexhausted claims, a district court may stay the petition where
certain criteria are satisfied so that the petitioner can return
to state court to complete the exhaustion process and
subsequently return to federal court to pursue his fully
exhausted habeas claims. 	544 U.S. at 278. 	Such a procedure
allows a prisoner facing expiration of the statute of
limitations to file a timely federal habeas petition and still
exhaust his habeas claims in the state courts.
Rhines is inapposite here, however, as LeBlanc has not
filed a federal habeas petition. 	Nor has he identified grounds
for substantive habeas relief in either his motion for stay and
abeyance or his response to this court’s April 3, 2020 Order.1
Consequently, there is no action for this court to stay and hold
in abeyance.
“‘The exercise of judicial power under Art. III of the
Constitution depends on the existence of a case or controversy,’
1 Federal courts sometimes will ignore the legal label that
a pro se litigant attaches to a filing and recharacterize it in
order to place it within a different legal category “to create a
better correspondence between the substance of a pro se motion’s
claim and its underlying legal basis.” 	See Castro v. United
States, 540 U.S. 375, 381 (2003). 	Had LeBlanc’s motion or
response discussed the grounds for relief he currently is
attempting to exhaust in the state courts, for example, this
court may have been able to recharacterize one or the other as a
§ 2254 petition.
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and ‘a federal court [lacks] the power to render advisory
opinions.’” 	U.S. Nat. Bank of Oregon v. Indep. Ins. Agents of
Am., Inc., 508 U.S. 439, 446 (1993) (quoting Preiser v. Newkirk,
422 U.S. 395, 401 (1975)). 	In the context of a habeas action,
“a habeas suit begins with the filing of an application for
habeas corpus relief – the equivalent of a complaint in an
ordinary civil case.” 	Woodford v. Garceau, 538 U.S. 202, 208
(2003); see also Calderon v. Ashmus, 523 U.S. 740, 746 (1998)
(“The underlying ‘controversy’ between petitioners and
respondent is whether respondent is entitled to federal habeas
relief setting aside his sentence or conviction [.]”). 	Without
the filing of a habeas petition, or the inclusion of grounds for
substantive habeas relief in the motion to stay, there is no
case or controversy before the court, and it does not have
jurisdiction to consider the motion. 	See, e.g., Calderon, 523
U.S. at 746-49 (no “case or controversy” where prisoners sought
declaratory relief to determine time limits that would govern
future habeas actions); United States v. Thomas, 713 F.3d 165,
168 (3d Cir. 2013) (noting, in dicta, that “no case or
controversy generally exists before an actual § 2254 petition is
filed.” (citations omitted)); Drewry v. Maine, No. 1:14-MC-
00187-JAW, 2014 U.S. Dist. LEXIS 131381, at *2, 2014 WL 4987938,
at *1 (D. Me. Sept. 18, 2014), R&R adopted, No. 1:14-MC-00187-
JAW, 2014 U.S. Dist. LEXIS 142266, 2014 WL 4987938 (D. Me. Oct.
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7, 2014); see also Gonzalez v. Madden, No. CV 20-1803-DSF (KK),
2020 U.S. Dist. LEXIS 38362, 2020 WL 1062148 (C.D. Cal. Mar. 4,
2020) (dismissing action because movant sought extension of time
without having filed a federal habeas petition, and, therefore,
there was no case or controversy properly before the court);
Crystal v. Inch, No. 3:19-CV-4915-LC-MJF, 2019 U.S. Dist. LEXIS
224915, at *2, 2019 WL 7580177, at *1 (N.D. Fla. Dec. 9, 2019),
R&R adopted, No. 3:19-CV-4915-LC-MJF, 2020 U.S. Dist. LEXIS
5873, 2020 WL 210804 (N.D. Fla. Jan. 14, 2020) (dismissing
action because the court lacks jurisdiction to rule on any
procedural (or substantive) matters before an actual habeas
petition is filed); Bailey v. W. Virginia, No. 1:18-CV-01403,
2019 U.S. Dist. LEXIS 175565, at *19-20, 2019 WL 5061261, at *6
(S.D.W. Va. Aug. 5, 2019), R&R adopted, No. 1:18-CV-01403, 2019
U.S. Dist. LEXIS 174264, 2019 WL 5057950 (S.D.W. Va. Oct. 8,
2019) (denying motion to stay absent any underlying § 2254
petition, or any articulation of potential claims provided in
the motion) (collecting cases).
Because LeBlanc has not yet filed a petition for writ of
habeas corpus, and his motion for stay and abeyance does not
include grounds for substantive habeas relief, there is no case
or controversy before the court. 	As such, the district judge
should dismiss the motion for lack of subject matter
jurisdiction.
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Dismissal of this motion does not preclude LeBlanc from
timely filing a place-holder habeas petition that states grounds
for relief, with supporting facts, concurrent with another
motion to stay and abey federal habeas proceedings, while he
exhausts his claims in the state courts. 	The docket in
LeBlanc’s state case, State v. LeBlanc, No. 216-2013-CR-00657
(N.H. Super. Ct., Hillsborough Cty., N. Dist.), shows a hearing
on LeBlanc’s motion for a new trial is scheduled on July 29,
2020, in Hillsborough County Superior Court. 	Thus, LeBlanc has
not yet fully exhausted his claims in the state courts, and time
remains for him to file a place-holder habeas petition and
motion for stay and abeyance.
Conclusion
For the foregoing reasons, the district judge should
dismiss the “Motion for Stay and Abeyance of Petition Filed
Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus” for lack of
subject matter jurisdiction and direct that this action be
terminated. 	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 specific written
objections to the Report and Recommendation within the specified
time waives the right to appeal the district court’s order. 	See
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Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
June 8, 2020
cc: 	Scott LeBlanc, pro se
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