Dore v. Carroll County Department of Corrections et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
George L Dore,
by Jennifer-Anne:Dore1
v. 	Case No. 21-cv-857-LM
Carroll County Department of
Corrections et al.2
REPORT AND RECOMMENDATION
Before the court is the petition for a writ of habeas
corpus (Doc. No. 1), filed under 28 U.S.C. § 2254, by Jennifer-
Anne:Dore, proceeding as the “trustee authorized representative”
of George L Dore.3 	At issue in the petition is George L Dore’s
1 George L Dore’s and Jennifer-Anne:Dore’s names are
rendered several ways in the petition, with variant uses of
colons, hyphens, and semi-colons in their names, sometimes
describing themselves as trustees or estates. 	The court uses
George L Dore’s name (stripped of punctuation) and Jennifer-
Anne:Dore’s name (with a hyphen and a colon), intending to refer
to them, however they may choose to refer to themselves.
2 The appropriate respondent in a § 2254 petition is the
petitioner’s current custodian. 	See 28 U.S.C. § 2242; Rule 2 of
the Rules Governing Section 2254 Cases (“§ 2254 Rules”).
Petitioner has named a prosecutor, a Superior Court judge, the
Carroll County Sheriff’s Department, and the Carroll County
Department of Corrections as respondents. 	The clerk’s office is
directed to update the docket to indicate that the Carroll
County Department of Corrections Superintendent is the
respondent in this action.
3 In general, the real party in interest must appear and
sign pleadings personally in this court, or through counsel
admitted to practice here. 	See 28 U.S.C. § 1654; LR 83.6(b).
This court expresses no opinion at this time as to whether
Jennifer-Anne:Dore may file a § 2241 petition on behalf of
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misdemeanor conviction for disobeying a police officer, and his
resulting sentence of six months in jail, with all but forty-
five days of the sentence suspended for one year. 	See Doc. No.
1-3, at 3-5. 	The § 2254 petition is here for preliminary review
to determine whether or not the claims raised in the petition
are facially valid and may proceed. 	See Rule 4 of the Rules
Governing Section 2254 cases (“§ 2254 Rules”).
Discussion
I. 	§ 2254 Rule 4 Standard
Pursuant to § 2254 Rule 4, a judge is required to promptly
examine any petition for habeas relief, and if “it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the
judge must dismiss the petition.” 	Id. 	“Federal courts are
authorized to dismiss summarily any habeas petition that appears
legally insufficient on its face . . . .” 	McFarland v. Scott,
George L Dore. 	See Figueroa v. Rivera, 147 F.3d 77, 82 (1st
Cir. 1998) (to bring a habeas petition on behalf of another
under 28 U.S.C. § 2242, “the filing party must show both that
she is proceeding in the prisoner’s behalf and that there is a
valid reason why she is better situated than the prisoner to
pursue the writ”); see also Whitmore v. Arkansas, 495 U.S. 149,
163 (1990) (petition’s signer “must provide an adequate
explanation -- such as inaccessibility, mental incompetence, or
other disability -- why the real party in interest cannot appear
on his own behalf,” and she must show she is “truly dedicated”
to inmate’s “best interests”). 	See generally § 2254 Rule
2(c)(5) adv. comm. note to 2004 am. (courts expected to apply
“next-friend” analysis in deciding whether signer was authorized
to sign petition for inmate under § 2254 Rule 2(c)(5)).
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512 U.S. 849, 856 (1994) (citing § 2254 Rule 4).
II. 	Exhaustion
To be eligible for habeas relief on his federal claims, the
petitioner must show that he has exhausted the remedies
available to him in the state courts on his federal claims, or
that state corrective processes are unavailable or ineffective
to protect his rights. 	See 28 U.S.C. § 2254(b)(1); see also
Rhines v. Weber, 544 U.S. 269, 273 (2005) (“the interests of
comity and federalism dictate that state courts must have the
first opportunity to decide a petitioner’s claims” (citation
omitted)).
George L Dore was sentenced one day before this petition
was filed. 	See Doc. No. 1-3, at 3-5. 	The timing of that filing
indicates that he has not exhausted his available state court
remedies as to the claims in the § 2254 petition. 	Nothing in
the record suggests that state corrective processes (including a
direct appeal of the conviction and sentence) are unavailable or
ineffective at this time. 	Accordingly, the petition is subject
to dismissal, without prejudice, for failure to exhaust state
remedies. 	See Rhines, 544 U.S. at 274.
While this court may stay an action to allow time for a
petitioner to return to the state courts to exhaust state
remedies, such a stay is not properly granted here. 	Cf. id. at
277 (district court would abuse its discretion if it stays
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§ 2254 petition that includes unexhausted claims, absent
petitioner’s: showing of good cause for prior failure to exhaust
state court remedies, and showing that unexhausted claims are
potentially meritorious). 	Nothing before this court suggests
good cause for George L Dore’s failure to file a direct appeal
in the N.H. Supreme Court or otherwise exhaust his state court
remedies before filing this action.4 	Accordingly, the district
judge should dismiss the petition without prejudice.
Certificate of Appealability
A Certificate of Appealability (“COA”) may issue “only if
the [petitioner] has made a substantial showing of the denial of
a constitutional right.” 	28 U.S.C. § 2253(c)(2); see also Slack
v. McDaniel, 529 U.S. 473, 483-84 (2000). 	When the district
court denies a habeas petition on procedural grounds without
reaching the underlying constitutional claim, a COA should issue
when the inmate shows, at least, that jurists of reason would
find it debatable whether the petition states a valid claim of
the denial of a constitutional right and that jurists of reason
4 Because of the petitioner’s failure to show good cause for
not having exhausted state remedies, and in the absence of a
motion to stay, this court need not address whether or not the
claims asserted in the petition -- “legal notice and demand,”
“common law copyright notice,” “hold harmless and indemnity
agreement,” and an alleged “due process” violation when the
Superior Court did not allow those claims to be raised by a
third-party “representative” -- are potentially meritorious.
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would find it debatable whether the district court was correct
in its procedural ruling. 	Slack, 529 U.S. at 484. 	Here, the
petitioner has not made a substantial showing of the denial of a
constitutional right, and reasonable jurists would not debate
that the failure to exhaust state remedies bars relief at this
time. 	Accordingly, the district judge should decline to issue a
certificate of appealability.
Conclusion
For the foregoing reasons, the district judge should
dismiss the § 2254 petition (Doc. No. 1), without prejudice, for
lack of exhaustion of state remedies and decline to issue a
certificate of appealability. 	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 order. 	See Santos-Santos v. Torres-Centeno,
842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
October 28, 2021
cc: 	George L Dore, Carroll Cnty. Dep’t of Corr.
Jennifer-Anne:Dore, courtesy copy
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