Holloway v. NH Department of Corrections, Commissioner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Dale E. Holloway, Jr.
v. Civil No. 22-cv-009-SE-AJ
N.H. Department of Corrections Commissioner
REPORT AND RECOMMENDATION on DOCUMENT NO. 48
In this § 2254 petition, Dale E. Holloway is challenging his conviction and sentence in
State v. Holloway, No. 216-2019-cr-1856 (N.H. Super. Ct., Hillsborough Cty.-N.D.) (“Case No.
1856”). Before the court is respondent’s motion to dismiss (Doc. No. 48), seeking dismissal of
this case based on Holloway’s failure to present and obtain a judgment as to each of his federal
claims in the New Hampshire Supreme Court (“NHSC”).
Background
Holloway filed this matter in 2022 asserting claims relating to his conviction and
sentence in Case No. 1856. The court screened the petition and dismissed some of Holloway’s
claims. See Nov. 4, 2022 Order (Doc. No. 19) (approving Sept. 21, 2022 Report and
Recommendation (“R&R”) (Doc. No. 16)).
The claims that the court allowed to proceed are the following:
Claim 1(a): The time that elapsed between petitioner’s arrest, indictment, and trial in
[Case No. 1856], violated petitioner’s right to a speedy trial under the Sixth Amendment.
Claim 4: The Superior Court’s decision not to appoint new trial counsel for Holloway in
Case No. 1856, when the court allowed Attorney Lee to remain as standby counsel,
violated:
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(a) Holloway’s Sixth Amendment right to counsel;
(b) Holloway’s Fourteenth Amendment right to due process; and
(c) Holloway’s Fourteenth Amendment right to equal protection.
Claim 6: Holloway’s guilty plea in Case No. 1856 was involuntary, in violation of his
right to due process under the Fourteenth Amendment.
Claim 7: The conditions of Holloway’s confinement at the New Hampshire State Prison
have violated the Eighth Amendment’s Cruel and Unusual Punishment Clause.1
See Aug. 29, 2023 Order at n.1 (Doc. No. 33).
Holloway filed a motion to stay (Doc. No. 21) asserting that he would use the stay to
exhaust his state remedies, and the court granted the stay, see Jun. 12, 2023 Order. The court
directed Holloway to file periodic status reports (every ninety days, starting in November 2023)
showing that he was exhausting his state remedies. See Aug. 29, 2023 Order (Doc. No. 33).
Holloway did not file any status reports. He claimed that the conditions of his
confinement interfered with his access to the courts. Because the court could not determine from
the record before it whether or not Holloway had in fact begun the process of exhausting any of
his state court remedies on Claims 1(a), 4, 6, and 7, the court lifted the stay and directed
respondent to file an answer or dispositive motion, “addressing, among other things, whether
Holloway has exhausted his available and effective state remedies.” Dec. 18, 2024 Order (Doc.
No. 44).
Respondent’s motion to dismiss asserting failure to exhaust is presently before the court.
Holloway, objecting to that motion, points to the conditions of his confinement and argues that
there are no available or effective state remedies for his claimed violations of federal rights, see,
1 The court expressly declined to decide whether or not Holloway’s Eighth Amendment
claim was cognizable in a § 2254 petition. The court noted that it would revisit that issue after
Holloway exhausted his state remedies, and the matter had been briefed.
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e.g., Doc. No. 72 (asking court to consider matters asserted in Document No. 63 as grounds for
finding an absence of available or effective state remedies).
Legal Standard
This court construes respondent’s motion to dismiss as a motion filed under Fed. R. Civ.
P. 12(b)(6), asserting petitioner’s failure to exhaust his state remedies as to Claims 1(a), 4, 6, and
7.
“A motion to dismiss a habeas petition is reviewed under the same standard as a
motion to dismiss a civil complaint under Fed. R. Civ. P. 12(b)(6).” Considering
a motion to dismiss, a court “accept[s] all well-pleaded facts in the complaint as
true . . . .” A court also “construe[s] all reasonable inferences in favor of the
plaintiff . . . .” In addition to the well-pleaded allegations in the petition, the
Court may consider “documents incorporated by reference in [the petition],
matters of public record, and other matters susceptible to judicial notice.”
Denbow v. Me. Dep’t of Corr., No. 1:20-cv-00175-JAW, 2020 WL 4736462, at *1 n.1, 2020
U.S. Dist. LEXIS 146957, at *4 n.1 (D. Me. Aug. 14, 2020) (citing cases, internal citations
omitted). Because Holloway is pro se, this court holds his pleadings “to less demanding
standards than those drafted by lawyers,” and this court endeavors, “within reasonable limits, to
guard against the loss of [his] claims due to technical defects.” Dutil v. Murphy, 550 F.3d 154,
158 (1st Cir. 2008).
Discussion
To be eligible for habeas relief, a petitioner must show that he exhausted all of his
remedies in the state courts for those claims, or that state court remedies are unavailable to him
or ineffective to protect his federal rights. See 28 U.S.C. § 2254(b)(1). In general, to exhaust
state remedies, a petitioner must fully litigate his federal claims at each available level of the
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state court system. See 28 U.S.C. § 2254(a) & (b); Coningford v. Rhode Island, 640 F.3d 478,
482 (1st Cir. 2011). Petitioner must “‘fairly and recognizably’” present each federal claim to the
state courts. Sanchez v. Roden, 753 F.3d 279, 294 (1st Cir. 2014) (citation omitted). In New
Hampshire, a petitioner’s remedies are fully exhausted, for purposes of § 2254(b)(1), when the
NHSC has had an opportunity to rule on the federal nature of each claim in the § 2254 petition.
See Dutil, 550 F.3d at 158.
Respondent has filed case summaries and NHSC records in support of respondent’s
motion to dismiss. Respondent further highlights the direct appeal of Holloway’s conviction in
State v. Holloway, No. 226-2019-cr-814 (N.H. Super., Hillsborough Cty.-S.D.) (“Case No.
814”), as grounds for finding that Holloway has not exhausted his state remedies as to this
§ 2254 petition. See Mot. to Dismiss, Doc. No. 48, at 2.
Respondent’s case summaries and state court records are outdated or irrelevant. This
§ 2254 petition concerns Holloway’s assault conviction in Case No. 1856 arising from
Holloway’s assault of his public defender, to which Holloway entered a guilty plea. The pending
NHSC appeal in Case No. 814 arises from Holloway’s attempted murder conviction involving
different victims on a different date, which was not consolidated with the assault proceedings.
The conviction at issue here is not presently on appeal in the NHSC; and the claims asserted here
are not directly before the NHSC in connection with Holloway’s appeal in Case No. 814.
Moreover, Holloway has maintained that the persistent restrictive conditions of his
confinement provide grounds for finding an absence of available or effective state remedies.
Respondent has asserted no arguments and pointed to no evidence to dispute Holloway’s
assertions regarding the conditions of his confinement and its impact on his satisfaction of the
exhaustion requirement.
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Respondent’s motion is inadequately supported by the record before this court and fails
to address all of the pertinent issues regarding whether all available or effective remedies are
exhausted at this time. Accordingly, the district judge should deny the motion to dismiss (Doc.
No. 48), without prejudice to respondent’s ability to file a properly supported dispositive motion,
as applied to Holloway’s circumstances.
Conclusion
For the foregoing reasons, the district judge should deny respondent’s motion to dismiss
(Doc. No. 48). Any objections to this Report and Recommendation (“R&R”) 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.
Only those issues raised in the objections to this R&R are subject to review in the district
court. See Sch. Union No. 37 v. United Nat’l Ins. Co., 617 F.3d 554, 564 (1st Cir. 2010). Any
issues not preserved by such objections are precluded on appeal. See id. Failure to file any
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
January 22, 2026
cc: Dale E. Holloway, Jr., pro se
Elizabeth C. Woodcock, Esq.
John Drennan, Esq.
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