Glenn v. NH Department of Corrections, Commissioner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Charles Glenn, Jr.
v. 	Civil No. 16-cv-6-JD
Helen Hanks, Commissioner,
New Hampshire Department of Corrections1
REPORT AND RECOMMENDATION
Before the court is petitioner Charles Glenn, Jr.’s request
to be returned to New Hampshire (Doc. No. 41), respondent’s
response and objection to the request (Doc. Nos. 43, 45), and
petitioner’s reply (Doc. No. 44). 	The matter has been referred
to the undersigned magistrate judge for a recommendation as to
disposition. 	See Dec. 14, 2017 Order.
On January 7, 2016, Glenn filed a habeas petition in this
court, challenging his New Hampshire state conviction for second
degree murder, asserting claims that his conviction and sentence
violate his Fifth and Fourteenth Amendment rights not to be
subjected to double jeopardy. 	At the time he filed this action,
Glenn, a New Hampshire Department of Corrections (“DOC”) inmate,
was incarcerated in Connecticut. 	In June 2016, Glenn was
1Glenn named William Wrenn, the Commissioner of the New
Hampshire Department of Corrections (“DOC”) at the time this
action was filed, as the respondent to this action. 	The court
has substituted the name of the current DOC Commissioner, Helen
Hanks, as the respondent in this case.
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transferred to a prison in New Jersey, were he remains.
In addition to this case, Glenn is litigating a state court
challenge to his conviction in which he has alleged that his
trial and/or sentencing counsel failed to provide him with the
ineffective assistance of counsel, in violation of the Sixth and
Fourteenth Amendments. 	Glenn has counsel in the pending state-
court proceedings. 	This case has been stayed pending resolution
of the state court post-conviction proceedings. 	See Aug. 30,
2017 Order (Doc. No. 39). 	If his state court proceeding is
successful, this action would be rendered moot. 	If that
litigation is not successful, Glenn may seek to amend his
petition here to assert his ineffective assistance of counsel
claims once those claims are litigated. 	Recent status reports
filed by petitioner (Doc. Nos. 48, 49) and correspondence from
Christine List, petitioner’s state court attorney (Doc. Nos. 47,
50), indicate that the state court proceedings are not likely to
conclude in the immediately foreseeable future.2
At this time, the only motion pending in this case is
2In Attorney List’s most recent correspondence, she
indicates that a status conference is scheduled in the state
court matter for June 27, 2018, and that at that time the court
will issue a scheduling order concerning “discovery deadlines,
expert disclosures, interrogatories, and evidentiary hearing
dates.” 	Attorney List has offered to provide this court with
the state court scheduling order once it is issued.
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Glenn’s motion (Doc. No. 41) to be returned to New Hampshire.
In his motion, Glenn alleges that he is not able to access New
Hampshire state law in his present facility, and is thus
impaired in his ability to litigate this action. 	Assuming,
without deciding, that Glenn will need access to such documents
once the stay in this case is lifted (if his state court
proceedings are not successful), Glenn is not prejudiced by his
current lack of access New Hampshire legal materials while this
case is stayed.
Accordingly, the district judge should deny Glenn’s motion
(Doc. No. 41) for an order directing that he be returned to New
Hampshire, without prejudice to Glenn’s ability to reassert the
request once the stay is lifted in this case. 	Further, the
denial of Glenn’s motion should be without prejudice to Glenn’s
ability to assert, through counsel, his request to be returned
to New Hampshire, in the state court to the extent he asserts
that such transfer is necessary to his ability to effectively
assist in the litigation of the state court proceedings.
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 specific written objections to the
Report and Recommendation within the specified time waives the
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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
June 28, 2018
cc: 	Charles Glenn, Jr., pro se
Elizabeth C. Woodcock, Esq.
Christina List, Esq., Courtesy Copy
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