Holloway v. NH Department of Corrections, Commissioner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Dale E. Holloway
v. 	Case No. 22-cv-009-SE
N.H. State Prison Warden Michelle Edmark
REPORT AND RECOMMENDATION
Before the court is New Hampshire State Prison (“NHSP”)
prisoner Dale E. Holloway’s petition for writ of habeas corpus
(Doc. No. 1), filed under 28 U.S.C. § 2254, challenging his
conviction and detention in State v. Holloway, No. 216-2019-cr-
1856 (N.H. Super. Ct., Hillsborough Cty.-N.D.) (“Holloway II”).
Also before the Court is an addendum to that petition (Doc. No.
8) in which Mr. Holloway asserts that he fears for his health
and safety while incarcerated at the NHSP. 	The petition is here
to determine whether Mr. Holloway’s claims are facially valid
and may proceed. 	See 28 U.S.C. § 2243; Rule 4 of the Rules
Governing Section 2254 Cases (“§ 2254 Rules”); LR 4.3(d)(4)(A).
§ 2254 Rule 4 Review 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, 512 U.S.
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849, 856 (1994). 	The court construes Mr. Holloway’s pleadings
liberally, in light of his pro se status. 	See Dutil v. Murphy,
550 F.3d 154, 158 (1st Cir. 2008).
Background
I. 	State Proceedings
A. 	Criminal Cases
Mr. Holloway is presently at the NHSP, serving a sentence
imposed in Holloway II, the prosecution at issue in this § 2254
petition. 	Holloway II arose from Mr. Holloway’s assault of the
attorney who was representing him in another pending criminal
case, State v. Holloway, No. 226-2019-cr-814 (N.H. Super. Ct.,
Hillsborough Cty.-S.D.) (“Holloway I”), while they were meeting
at the Hillsborough County Department of Corrections (“HCDC”).
Holloway I remains pending and is currently scheduled for a May
2023 trial in Superior Court.
Holloway II has proceeded on a faster track than Holloway
I. 	The Superior Court allowed Mr. Holloway to represent himself
in Holloway II, and Attorney Brian Lee was appointed as stand-by
counsel. 	On May 27, 2021, Mr. Holloway entered a plea of guilty
to two counts of first degree assault in Holloway II. 	The
Superior Court sentenced him to serve seven to fifteen and a
half years on one first degree assault charge and imposed a
five-to-ten-year suspended sentence on the second first degree
assault charge. 	Other charges in Holloway II were nolle
prossed. 	Mr. Holloway did not appeal the judgment in that case.
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On March 15, 2022, approximately eight months after his
Holloway II sentencing hearing, Mr. Holloway filed a pro se
motion for a new trial in Superior Court. 	The record before the
Court does not indicate whether a decision has been made on Mr.
Holloway’s motion for a new trial.
B. 	State Petitions
Mr. Holloway filed pleadings in the state courts, prior to
his Holloway II conviction, seeking release from preventive
detention and challenging the indictments in both Holloway I and
Holloway II. 	Those proceedings included Mr. Holloway’s petition
for discretionary review, filed in the New Hampshire Supreme
Court (“NHSC”), under NHSC Rule 11. 	See In re Holloway, No.
2021-0054 (N.H., filed Feb. 18, 2021). 	The NHSC summarily
denied that petition on April 15, 2021. 	See id. (Apr. 15, 2021
Order) (Doc. No. 1-1, at 3).
III. Federal Proceedings
In 2021, Mr. Holloway filed two petitions under 28 U.S.C.
§ 2241 in federal court, asserting pre-conviction challenges to
Holloway I and Holloway II. 	See Holloway v. Hillsborough Cty.
Dep’t Corr. Superintendent, No. 21-cv-205-PB (D.N.H.) (“First
§ 2241 Petition”); see also Holloway v. United States, No. 21-
cv-456-JD (D.N.H.) (“Second § 2241 Petition”). 	Both of those
petitions were dismissed without prejudice. 	See First § 2241
Petition, 2021 WL 1227082, 2021 U.S. Dist. LEXIS 198029 (D.N.H.
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Apr. 1, 2021); see also Second § 2241 Petition, 2021 U.S. Dist.
LEXIS 197030, 2021 WL 4772120 (D.N.H. Oct. 12, 2021).
Mr. Holloway filed a third § 2241 petition in federal court
in January 2022 after he was sentenced in Holloway II. 	See
Holloway v. N.H. State Prison Warden, No. 22-cv-22-SM (D.N.H.)
(“Third § 2241 Petition”). 	The Court construed the Third § 2241
Petition as seeking federal habeas relief relative to Holloway
I; the September 12, 2022 Report and Recommendation (“R&R”)
issued in that case recommends dismissal. 	See Sept. 12, 2022
R&R, Third § 2241 Petition (ECF No. 12).
Claims in this § 2254 Petition
Construed liberally, this § 2254 petition (Doc. No. 1)
asserts the following claims relating to Holloway II:
1. 	The time that elapsed between Mr. Holloway’s arrest,
indictment, and trial in Holloway II violated his right to
a speedy trial under (a) the Sixth Amendment and (b) state
laws and policies;
2. 	The preventive detention order in Holloway II, which
did not allow for Mr. Holloway’s release on bail, violated:
(a) his rights under the Eighth Amendment Excessive Bail
Clause, (b) the Fourteenth Amendment Due Process Clause,
and (c) state laws and policies;
3. 	The conditions of Mr. Holloway’s preventive pretrial
detention at the HCDC violated (a) his right to due process
under the Fourteenth Amendment, and (b) his right not to be
subjected to involuntary servitude under the Thirteenth
Amendment;
4. 	The Superior Court’s decision not to appoint new trial
counsel for Mr. Holloway, and instead to allow Attorney Lee
to remain as standby counsel, violated: (a) Mr. Holloway’s
Sixth Amendment right to counsel, (b) his Fourteenth
Amendment right to due process, and (c) his Fourteenth
Amendment right to equal protection;
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5. 	Mr. Holloway’s failure to file any state post-
conviction motion or post-conviction state habeas petition
raising Claims 1-4, supra, was the result of the
ineffective assistance of counsel or the lack of counsel,
manifesting a violation of Mr. Holloway’s Sixth Amendment
rights; and
6. 	Mr. Holloway’s guilty plea was involuntary, in
violation of his right to due process under the Fourteenth
Amendment.
In the addendum to the § 2254 petition (Doc. No. 8), Mr.
Holloway asserts the following claim:
7. 	The conditions of Mr. Holloway’s confinement at the
NHSP have violated the Eighth Amendment’s Cruel and Unusual
Punishment Clause.
Discussion
I. 	State Laws and Policies (Claims 1(b), 2(c))
This court has jurisdiction over petitions for a writ of
habeas corpus, seeking relief on the grounds that the petitioner
is confined pursuant to a state judgment, in violation of his or
her federal rights. 	28 U.S.C. § 2254. 	Claims of violations of
state laws and policies are generally not cognizable in a § 2254
petition. 	See Wilson v. Corcoran, 562 U.S. 1, 16 (2010) (“it is
only noncompliance with federal law that renders a State’s
criminal judgment susceptible to collateral attack” in a § 2254
petition (emphasis added)); Estelle v. McGuire, 502 U.S. 62, 67
(1991) (“‘federal habeas corpus relief does not lie for errors
of state law’” (citation omitted)).
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Mr. Holloway’s claims identified here as Claims 1(b) and
2(c), asserting violations of state laws and policies, do not
provide grounds for relief under 28 U.S.C. § 2254. 	Accordingly,
the district judge should dismiss those claims for lack of
jurisdiction.
II. 	Pretrial Detention (Claims 2(a)-(c), 3)
A habeas corpus petition under 28 U.S.C. § 2254 is the
proper vehicle for a state prisoner, in custody pursuant to the
judgment of a state court, to challenge the constitutionality of
his current custody. 	Claims for release asserted in a § 2254
petition filed by a convicted prisoner, however, challenging his
or her pre-trial confinement -- including excessive bail claims
and claims challenging the conditions of pretrial confinement --
become moot upon that prisoner’s conviction and transfer to
state prison. 	See Jackson v. Clements, 796 F.3d 841, 843 (7th
Cir. 2015); Porter v. Pelino, 985 F.2d 552, 1992 U.S. App. LEXIS
32221, at *5, 1992 WL 436195, at *2 (1st Cir. Dec. 9, 1992)
(unpublished table decision); Williams v. Wall, No. 09-cv-0055-
ML, 2009 U.S. Dist. LEXIS 120122, at *5-6, 2009 WL 4981463, at
*2 (D.R.I. Dec. 1, 2009), R&R adopted, 2009 U.S. Dist. LEXIS
120125, 2009 WL 4981463 (D.R.I. Dec. 22, 2009); see also Laster
v. Skipper, No. 1:21-cv-366, 2021 U.S. Dist. LEXIS 86767, at *4,
2021 WL 1809837, at *2 (W.D. Mich. May 6, 2021) (citing Murphy
v. Hunt, 455 U.S. 478, 481 (1982) (in general, Eighth Amendment
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claim to pretrial bail becomes moot once criminal defendant is
convicted)).
Mr. Holloway’s conviction and transfer to the NHSP has
mooted the claims numbered here as Claims 2 and 3. 	Accordingly,
the district judge should dismiss those claims as not facially
valid or cognizable in this proceeding.
III. Post-Conviction Counsel Claims (Claim 5)
Criminal defendants generally have no federal right to
counsel in state post-conviction collateral review proceedings
and thus cannot obtain federal habeas relief based on stand-
alone claims of a violation of the Sixth Amendment or Fourteenth
Amendment right to counsel, or to the effective assistance of
counsel, in those proceedings. 	See Pennsylvania v. Finley, 481
U.S. 551, 557 (1987) (“ States have no obligation to provide . . .
[postconviction relief], and when they do, the fundamental
fairness mandated by the Due Process Clause does not require
that the State supply a lawyer as well.” (citations omitted));
see also 28 U.S.C. 2254(i). 	Claim 5 does not articulate a Sixth
or Fourteenth Amendment claim that could be cognizable in a
§ 2254 petition. 	Accordingly, Claim 5 should be dismissed.
IV. 	Exhaustion
To be eligible for relief under § 2254, the petitioner must
show that he has exhausted the remedies available in the state
courts for each of his claims, or that state court remedies are
unavailable or ineffective to protect his rights. 	See 28 U.S.C.
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§ 2254(b)(1); see also Rose v. Lundy, 455 U.S. 509, 510 (1982).
A petitioner’s state court remedies in New Hampshire are
exhausted when the NHSC has had an opportunity to rule on the
claims. 	See Lanigan v. Maloney, 853 F.2d 40, 42 (1st Cir.
1988). 	The burden is on the petitioner to demonstrate
exhaustion of state remedies. 	See id.
In dismissing Mr. Holloway’s prior § 2241 petitions for
lack of exhaustion, the court concluded that he had not
demonstrated that his NHSC Rule 11 proceedings exhausted his
state remedies on the claims in those petitions that resemble
those asserted in this § 2254 petition. 	See Second § 2241
Petition, 2021 WL 5868223, at *4, 2021 U.S. Dist. LEXIS 198029,
at *10 (D.N.H. Aug. 3, 2021) (“Absent a showing that the NHSC in
fact ruled on the merits of [Mr. Holloway’s] claims or that
[petitioner] is now otherwise barred under state law from
litigating the same claims in a direct appeal or in other state
collateral proceedings, the record here does not demonstrate
that his prior [NHSC] Rule 11 filings exhausted his state
remedies on those claims.”), R&R adopted, 2021 U.S. Dist. LEXIS
197030, 2021 WL 4772120 (D.N.H. Oct. 12, 2021).
There have been no further proceedings culminating in an
opportunity for NHSC review relating to Mr. Holloway’s claims at
issue here, since the dismissal of those prior § 2241 petitions.
Accordingly, Mr. Holloway has not exhausted his state remedies
as to all of the claims in this § 2254 petition.
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A federal district court confronting a petition containing
one or more unexhausted claims generally cannot grant any
relief. 	The court has the option of dismissing the petition in
its entirety, without prejudice, or staying and holding the
petition in abeyance if there is good cause to do so, while the
petitioner returns to state court to exhaust his state remedies
on the unexhausted claims. 	See Rhines v. Weber, 544 U.S. 269,
274-75 (2005). 	Good cause for a stay of a § 2254 petition may
be found where the unexhausted claims are potentially
meritorious and the petitioner has not engaged in dilatory
tactics. 	See id. at 278. 	In the alternative, a petitioner may
amend a petition to delete the unexhausted claims, rather than
exhausting his state remedies as to those claims, see id. at
278, although in doing so, the petitioner risks losing the
opportunity to seek relief on the deleted claims in any future
§ 2254 petition, pursuant to 28 U.S.C. § 2244(b).
This court has not identified any federal habeas claim in
this case as to which Mr. Holloway has demonstrated that he
exhausted his state court remedies. 	In the Order issued this
date, the court grants Mr. Holloway the opportunity to move to
stay the instant petition so that he can return to the state
courts to exhaust his previously unexhausted federal claims,
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including, specifically, Claims 1(a), 4, 6, and 7, which are not
the subject of this R&R’s recommendation of dismissal.1
Conclusion
For the foregoing reasons, the district judge should
dismiss Claims 1(b), 2, 3, and 5 and find that Mr. Holloway has
not exhausted his state remedies as to Claims 1(a), 4, 6, and 7.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	Fed. R.
Civ. P. 72(b)(2). 	The fourteen-day period may be extended upon
motion. 	Failure to file any objection 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). 	Only those issues raised in the written objections to
this R&R “‘are subject to review in the district court,’” and
any issues “‘not preserved by such objection are precluded on
appeal.’” 	Id. (citations omitted).
__________________________________
Andrea K. Johnstone
United States Magistrate Judge
September 21, 2022
cc: 	Dale E. Holloway, pro se
1This court expresses no opinion at this time, and reserves
for further disposition after the issue is briefed and Mr.
Holloway has completely exhausted his state court remedies, a
ruling as to whether Mr. Holloway’s Eighth Amendment conditions
of confinement claim is potentially meritorious and may be
cognizable in this § 2254 petition.
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