Towle v. NH State Prison, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Towle
v. Civil No. 15-cv-117-SM
Warden, New Hampshire State Prison
REPORT AND RECOMMENDATION
Before the court in this habeas corpus action is
“Respondent’s Motion to Dismiss” (Doc. No. 18), which has been
referred to this Magistrate Judge for a report and
recommendation as to disposition. Also before this court for
ruling are two motions filed by the petitioner: a “Rule 12(e)
Motion,” (Doc. No. 24), seeking a more definite statement of the
arguments the respondent has asserted in the motion to dismiss;
and a “Motion to Bar and Preclude Respondent’s Motion to
Dismiss” (Doc. No. 26). Respondent has filed a response to the
petitioner’s motions (Doc. No. 28).
Background
In this action, filed pursuant to 28 U.S.C. § 2254, Towle
has raised fourteen claims for relief, identified as Claims 1-14
in this Court’s August 28, 2015 Order (Doc. No. 5) (“August 28
Order”). In the August 28 Order, the court directed Towle to
move to amend his petition to assert the federal nature of his
Case 1:15-cv-00117-SM-AJ Document 50 Filed 12/20/16 Page 1 of 5

2
claims, and either to demonstrate that each of those claims had
been exhausted in the state courts, or to move to stay this
action to allow him exhaust his state remedies before proceeding
here.
Thereafter, Towle filed a motion to amend his petition
(Doc. No. 9). Attached to that motion were state court
documents demonstrating that in proceedings beginning in
Superior Court in September 2015, and ending in the New
Hampshire Supreme Court (“NHSC”) on December 7, 2015, Towle had
exhausted all fourteen of the federal claims asserted in the
§ 2254 petition. See Doc. Nos. 9-1, 9-2, 9-3. This court
granted Towle’s motion to amend, finding that the federal nature
of Towle’s claims had been exhausted, in an Order (Doc. No. 13)
issued March 23, 2016 (“March 23 Order”).
Discussion
I. Motion to Dismiss
The respondent has filed a motion to dismiss (Doc. No. 18)
Towle’s habeas petition, asserting two bases for dismissal: 1)
that Towle failed to raise the federal claims asserted in his
petition in either the trial court, the state post-conviction
court, or the NHSC; and 2) that thirteen of Towle’s fourteen
claims here are procedurally barred, that Towle has not
demonstrated cause and prejudice for the procedural bar, and
Case 1:15-cv-00117-SM-AJ Document 50 Filed 12/20/16 Page 2 of 5

3
thus, that this court is precluded from reviewing those claims.
A. Exhaustion
“[A] habeas petitioner must ‘exhaust[] the remedies
available in the courts of the State’ before seeking relief on a
given claim in federal court.” Jaynes v. Mitchell, 824 F.3d
187, 192 (1st Cir.) (quoting 28 U.S.C. § 2254(b)(1)(A)), cert.
denied, 137 S. Ct. 312 (2016). To exhaust his remedies, a
petitioner “‘must have tendered his federal claim in such a way
as to make it probable that a reasonable jurist would have been
alerted to the existence of the federal question.’” Jaynes, 824
F.3d at 192 (citation omitted).
Here, petitioner has demonstrated, in his filings in this
court, that the federal constitutional claims he seeks to assert
here have been raised in the state Superior Court and in the New
Hampshire Supreme Court, see Doc. No. 9-1, at 1-4; Doc. No. 9-2,
at 1; Doc. No. 9-3, at 4-6, and thus are exhausted.
Respondent’s assertions to the contrary are contradicted by the
record before the court, including by documents to which
respondent specifically refers and cites in his motion to
dismiss. Accordingly, to the extent the respondent’s motion to
dismiss rests on Towle’s alleged failure to exhaust his federal
habeas claims, the motion should be denied.
B. Procedural Default
The respondent also asserts in his motion to dismiss (Doc.
Case 1:15-cv-00117-SM-AJ Document 50 Filed 12/20/16 Page 3 of 5

4
No. 18), that thirteen of the fourteen claims Towle pursues in
this action are procedurally defaulted. This court denies that
motion, in part, without prejudice, in light of respondent’s
assertion in the motion that he intends to “file a more
comprehensive motion for summary judgment and supporting
memorandum of law,” with respect to those claims. Doc. No. 18,
at 5. In the interest of justice, this court should have the
benefit of respondent’s best and most comprehensive arguments on
the point, and Towle’s response to those arguments, prior to
considering its merits. Accordingly, the district judge should
deny the motion to dismiss (Doc. No. 18) to the extent it seeks
dismissal on grounds of procedural default, without prejudice to
the respondent’s ability to assert those arguments on summary
judgment, where the court can consider the question with the
benefit of more comprehensive briefing.
II. Pending Motions (Doc. Nos. 24, 26)
Towle has filed two motions (Doc. Nos. 24, 26) concerning
the respondent’s motion to dismiss (Doc. No. 18) that would be
moot if the motion to dismiss is denied. Towle seeks a more
definite statement and/or clarification of arguments in the
motion to dismiss, see Towle’s Mot. (Doc. No. 24), and also
seeks to “bar and preclude” the motion to dismiss on procedural
grounds, see Towle’s Mot. (Doc. No. 26). In light of the
recommendation set forth herein that the district judge deny the
Case 1:15-cv-00117-SM-AJ Document 50 Filed 12/20/16 Page 4 of 5

5
motion to dismiss, both of Towle’s motions (Doc. Nos. 24, 26)
should be denied as moot.
Conclusion
For the foregoing reasons, the district judge should deny
the respondent’s motion to dismiss (Doc. No. 18), without
prejudice to the respondent’s ability to assert, in a motion for
summary judgment, that claims in the petition are procedurally
defaulted. The district judge should also deny Towle’s motions
(Doc. Nos. 24, 26) as moot. If the district judge issues an
order approving this report and recommendation, the deadline for
filing a motion for summary judgment in this matter will be
sixty days after the date of that order.
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). 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
December 20, 2016
cc: Robert V. Towle, pro se
Donna J. Brown, Esq.
Elizabeth C. Woodcock, Esq.
Lynmarie C. Cusack, Esq.
Case 1:15-cv-00117-SM-AJ Document 50 Filed 12/20/16 Page 5 of 5