Harrington v. Northern NH Correctional Facility, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Kevin Harrington
v.
Civil No. 21-cv-850-JL
Warden, Northern New Hampshire
Correctional Facility
REPORT AND RECOMMENDATION
Petitioner Kevin Harrington has filed a petition for a writ
of habeas corpus (Doc. No. 1) pursuant to 28 U.S.C. § 2254. 	Mr.
Harrington has also filed additional documents (Doc. Nos. 4-20,
22, 23, 25-38), each of which the Court construes as an addendum
to Mr. Harrington’s habeas petition for all purposes. 	The
matter is before this Magistrate Judge for preliminary review,
pursuant to Rule 4 of the Rules Governing § 2254 Proceedings (“§
2254 Rules”) and LR 4.3(d)(4). 	Also before the undersigned are
Mr. Harrington’s motion to stay (Doc. No. 21) and “Motion to
Suit” (Doc. No. 24).
Standard
In undertaking § 2254 Rule 4 preliminary review, this court
decides whether the petition contains sufficient factual matter,
accepted as true, to state a facially valid claim to relief that
may be brought in a federal habeas action. 	See McFarland v.
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Scott, 512 U.S. 849, 856 (1994). 	When a habeas petitioner is
proceeding pro se, the assertions contained in his petition and
other filings are construed liberally. 	See Erickson v. Pardus,
551 U.S. 89, 94 (2007) (per curiam).
Background
On March 13, 2020, Mr. Harrington was convicted in the
Merrimack County Superior Court (“MCSC”), after a jury trial, on
charges of felony sexual assault, burglary, simple assault and
false imprisonment. 	See State v. Harrington, No. 217-2019-CR-
00891 (N.H. Super. Ct., Merrimack Cty.). 	On June 22, 2020, the
MCSC sentenced Mr. Harrington to serve five-to-fifteen-years in
prison and imposed additional suspended consecutive and
concurrent sentences. 	See id.
On June 26, 2020, Mr. Harrington filed a motion to suspend
that sentence, which the MCSC denied on June 30, 2020. 	On July
20, 2020, Mr. Harrington filed a direct appeal of his
convictions and sentences in the New Hampshire Supreme Court
(“NHSC”). 	On March 8, 2021, the NHSC granted Mr. Harrington
leave to file a motion for a new trial in the Superior Court,
asserting claims that he was denied the effective assistance of
counsel at his trial. 	Mr. Harrington filed a motion for new
trial on May 25, 2021. 	The public docket of Mr. Harrington’s
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state criminal case indicates that his motion for a new trial
was denied on or before October 6, 2021. 	The NHSC issued its
briefing schedule in his direct criminal appeal on November 12,
2021. 	That appeal is still pending.
Discussion
I. 	Claims Asserted Under 28 U.S.C. § 2254
A. 	Nature of § 2254 Claims
Under federal law, an individual in custody pursuant to a
state court conviction and sentence may challenge the
constitutionality of his conviction and/or sentence by filing a
petition for a writ of habeas corpus under 28 U.S.C. § 2254.
See Hill v. McDonough, 547 U.S. 573, 579 (2006); Preiser v.
Rodriguez, 411 U.S. 475, 500 (1973) (“when a state prisoner is
challenging the very fact or duration of his physical
imprisonment, and the relief he seeks is a determination that he
is entitled to immediate release or a speedier release from that
imprisonment, his sole federal remedy is a writ of habeas
corpus.”). 	Here, Mr. Harrington’s filings assert claims
challenging his conviction and sentence, including, among
others, claims that his trial counsel failed to provide him with
effective assistance of trial, that there was insufficient
evidence presented at trial to support his conviction, that his
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jury was tainted, and that his due process rights were violated
before and during his trial. 	Mr. Harrington may bring such
claims, which challenge, under federal law, the validity of his
conviction, and thus the legality of his present incarceration,
in a habeas action under 28 U.S.C. § 2254.
B. 	Exhaustion of § 2254 Claims
To be eligible for federal habeas relief, Mr. Harrington
must show that he has fully exhausted the remedies available to
him in the state courts as to each of his federal claims, or
that the state courts’ corrective processes are unavailable or
ineffective to protect his rights. 	See 28 U.S.C. § 2254(b)(1).
To do that, “a petitioner must pursue and await the results of
all available appeals in state court before . . . [filing] a
petition for habeas corpus in federal court.” 	Batavitchene v.
Clarke, No. 10-11854-DJC, 2011 WL 1297935 at *1, 2011 U.S. Dist.
LEXIS 36682 at *4 (D. Mass. Apr. 5, 2011).
Here, Mr. Harrington’s direct appeal is still pending in
the NHSC. 	The state courts, therefore, have not yet been
provided with a full opportunity to rule on Mr. Harrington’s
federal claims for habeas relief. 	Those claims, therefore, have
not been fully exhausted and are not ripe for review in a § 2254
action in this court, and should be dismissed on that basis.
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This matter may be dismissed without impairing Mr.
Harrington’s ability to file a timely federal habeas petition
once he has fully exhausted all of his claims in the state
courts, as the one-year time limit for filing a § 2254 action
does not begin to run until his state criminal conviction is
made final by the conclusion of his direct appeal of that
conviction. 	See 28 U.S.C. § 2244(d)(1)(A). 	Accordingly, the
district judge should dismiss Mr. Harrington’s habeas action in
its entirety, without prejudice to his ability to refile a new
habeas action once his criminal conviction becomes final in the
state courts.
II. 	Claims Asserted Under 42 U.S.C. § 1983
If a prisoner asserts civil claims challenging the
constitutionality of the conditions of his confinement, or other
alleged violations of his civil rights, whether he is seeking
money damages or injunctive relief, such claims must be brought
in a civil lawsuit filed under 42 U.S.C. § 1983. 	See Hill, 547
U.S. at 579; Nelson v. Campbell, 541 U.S. 637, 643 (2004)
(“[C]onstitutional claims that merely challenge the conditions
of a prisoner’s confinement, whether the inmate seeks monetary
or injunctive relief, fall outside of [the core of habeas
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corpus] and may be brought pursuant to § 1983 in the first
instance.”).
In his filings here, Mr. Harrington asserts claims for
monetary relief, alleging that other people have caused him
harm. 	Those claims arise under § 1983, or another civil cause
of action, as they do not challenge the legality of Mr.
Harrington’s conviction and sentence. 	Those claims cannot be
asserted in this § 2254 case. 	Accordingly, the district judge
should dismiss all of Mr. Harrington’s claims challenging the
conditions of his confinement, or seeking money damages or
injunctive relief, without prejudice to Mr. Harrington’s ability
to litigate those claims in a separate § 1983 action in this
Court, and/or a civil action in the state courts. 	To that end,
in an Order issued simultaneously with this Report and
Recommendation, the Court directs the Clerk’s office to redocket
Mr. Harrington’s filings (Doc. Nos. 1, 4-38) as the initial
pleading in a new civil case.
Motions
Pending before the court are two motions (Doc. Nos. 21, 24)
Mr. Harrington has filed asking the Court to amend this matter
to add both habeas claims and civil claims for damages to his
habeas petition, and to join defendants to this action. 	In both
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motions, Mr. Harrington also asks the court to put this case “on
hold” so that he doesn’t lose the opportunity to be compensated
by individuals who, he claims, have harmed him.
Because the habeas petition in this case should be
dismissed as unexhausted and premature, and the civil claims Mr.
Harrington has asserted here should be dismissed as they are not
appropriately litigated in a habeas action, the district judge
should deny Mr. Harrington’s motions (Doc. Nos. 21, 24) as moot.
To the extent Mr. Harrington seeks to add civil claims for money
damages to this case, the district judge should deny the motions
without prejudice to Mr. Harrington’s ability to seek such
relief in the new civil § 1983 action which this Court directs
the Clerk’s office to open in an Order issued this date, or in
another civil action Mr. Harrington may bring in an appropriate
state or federal court.
Conclusion
For the reasons explained above, the district judge should:
1. 	dismiss Mr. Harrington’s § 2254 petition (Doc. No. 1)
as premature and unexhausted, without prejudice to his
ability to challenge his conviction and/or sentence in this
court in a new § 2254 action, after his conviction has
become final in the state courts;
2. 	dismiss Mr. Harrington’s claims challenging the
conditions of his confinement, and other civil claims,
seeking monetary and/or injunctive relief, without
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prejudice to Mr. Harrington’s ability to assert those
claims in an action in this court brought pursuant to 42
U.S.C. § 1983, or in a civil action in state court; and
3. 	deny Mr. Harrington’s pending motions (Doc. Nos. 21,
24) as moot.
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 objection(s) to this
Report and Recommendation “‘are subject to review in the
district court.’” 	Id. 	Additionally, any issues “‘not preserved
by such objection are precluded on appeal.’” 	Id. (citations
omitted).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
May 27, 2022
cc: 	Kevin Harrington, pro se
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