Neeper v. NH State Prison, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jay L. Neeper
v. 	Case No. 21-cv-759-SM
Warden, New Hampshire
State Prison
Report and Recommendation
Jay L. Neeper, an inmate at the New Hampshire State Prison
and proceeding in forma pauperis, filed a petition under 28
U.S.C. § 2254, seeking to vacate his state conviction. 	See
State v. Neeper, 160 N.H. 11 (2010). 	In the petition, Neeper
states that he is in the process of exhausting state remedies,
and asks the court to stay his petition while he completes the
exhaustion process. 	Doc. no. 1. 	He refiled the petition, which
was construed as a motion for a stay. 	Doc. no. 2. 	The petition
and motion are subject to preliminary review to determine
whether or not the claims are facially valid and may proceed.
See Rule 4 of the Rules Governing Section 2254 Cases.
Discussion
Neeper is correct that before proceeding under § 2254, he
is required to show that he has exhausted the remedies available
to him in state court or show that state processes are
unavailable. 	28 U.S.C. 	§ 2254(b)(1); Rhines v. Weber, 544 U.S.
269, 273 (2005). 	Neeper acknowledges that he is in the process
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of exhausting state court remedies. 	He identifies no claims for
purposes of his present motion.1 	As such, Neeper has presented
no claims, exhausted or unexhausted, in his current petition.
In addition, Neeper previously filed a § 2254 petition that
was denied. 	Neeper v. Gerry, 2011 U. S. Dist. LEXIS 121183, at
*2 (D.N.H. Oct. 18, 2011). 	If he intends to present the same
claim in this action, that claim would be denied. 	28 U.S.C. §
2244(b)(1). 	If he intends to present different claims, he must
meet the requirements for doing so. 	§ 2254(b)(2).
Further, although the court may stay action on a § 2254
petition to allow the petitioner to exhaust state court
remedies, the petitioner must make the necessary showing for a
stay. 	Id. at 277. 	A petitioner must demonstrate that good
cause exists for his failure to exhaust the claims previously
and that his unexhausted claims are meritorious. 	Id. 	Any stay
must be cabined within reasonable time limits. 	Id. at 278.
Neeper has not alleged any claims in support of his
petition. 	In the absence of any claims alleged in his petition,
the court cannot review the claims under the § 2254 standards or
the standard for granting a stay. 	As a result, the petition
1 Although Neeper states that he intends to raise “a former
Double jeopardy issue” in state court, he provides no other
allegations or information about that claim.
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does not present facially valid claims that can proceed in this
action, and the petition should be dismissed.
Conclusion
For the foregoing reasons, the district court should
dismiss the petition (doc. no. 1) and deny the motion to stay
(doc. no. 2) without prejudice to Neeper to file an appropriate
and properly supported petition.
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. 	Only those issues raised in the objection(s) to
this Report and Recommendation are subject to review in the
district court. 	See Sch. Union No. 37 v. United Natl Ins. Co.,
617 F.3d 554, 564 (1st Cir. 2010). 	Any issues not preserved by
such objection(s) 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
April 21, 2022
cc: 	Jay L. Neeper, pro se
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