UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Walter M. McKnight,

Plaintiff

v. Civil No. 05-cv-161-SM

Opinion No. 2006 DNH 081

Commissioner, New Hampshire

Department of Corrections, and

Warden, Northern N.H. Correctional

Facility,

Defendants

O R D E R

Walter McKnight, an inmate at the Northern New Hampshire

Correctional Facility, brings this petition seeking habeas corpus

relief. See 28 U.S.C. § 2254. In short, he claims to have fully

served concurrent sentences of 5 to 10 years in prison and says

prison officials are unlawfully refusing to release him from

their custody. Defendants, on the other hand, assert that

McKnight is still serving time on his second term of

imprisonment, which is consecutive to, not concurrent with, the

sentence he has already served. 

In support of his petition, McKnight seems to advance two

claims. First, he says defendants have wrongfully detained him

beyond his maximum release date, in violation of his

constitutionally protected liberty interests. Next, he claims

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that if his release date has not yet arrived, his right to due

process was violated when the state trial court sentenced him to

consecutive terms of imprisonment without adequately explaining

that fact to him. Defendants move for summary judgment, saying

there are no genuinely disputed material facts and, as a matter

of law, McKnight’s claims fail. McKnight has not filed an

objection. 

Standard of Review

I. Summary Judgment. 

When ruling on a party’s motion for summary judgment, the

court must “view the entire record in the light most hospitable

to the party opposing summary judgment, indulging all reasonable

inferences in that party’s favor.” Griggs-Ryan v. Smith, 904

F.2d 112, 115 (1st Cir. 1990). Summary judgment is appropriate

when the record reveals “no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter

of law.” Fed. R. Civ. P. 56(c). In this context, “a fact is

‘material’ if it potentially affects the outcome of the suit and

a dispute over it is ‘genuine’ if the parties’ positions on the

issue are supported by conflicting evidence.” Int’l Ass’n of

Machinists & Aerospace Workers v. Winship Green Nursing Ctr., 103

F.3d 196, 199-200 (1st Cir. 1996) (citations omitted). 

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Here, because McKnight failed to object to defendants’

motion for summary judgment, the court will take as admitted the

factual statements recited in defendants’ motion, as supported by

the attached exhibits. See Local Rule 7.2(b)(2) (“All properly

supported material facts set forth in the moving party’s factual

statement shall be deemed admitted unless properly opposed by the

adverse party.”). See also McCrory v. Spigel, 260 F.3d 27, 31

(1st Cir. 2001) (“Although we view the evidence in the light most

favorable to the nonmovant, as to any essential factual element

of its claim on which the nonmovant would bear the burden of

proof at trial, its failure to come forward with sufficient

evidence to generate a trialworthy issue warrants summary

judgment to the moving party.”) (citations and internal quotation

marks omitted). 

II. Habeas Corpus.

Since passage of the Anti-Terrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), the power to

grant federal habeas relief to a state prisoner with respect to

claims adjudicated on the merits in state court has been

substantially limited. A federal court may not disturb a state

conviction unless the state court’s resolution of the issues

before it “resulted in a decision that was contrary to, or

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involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States.” 28 U.S.C. § 2254(d)(1). See also Williams v. Taylor,

529 U.S. 362 (2000). Alternatively, habeas relief may be granted

if the state court’s adjudication “resulted in a decision that

was based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d)(2). 

Here, McKnight challenges his continuing incarceration on

grounds that the state habeas court erroneously concluded that:

(1) the trial court sentenced him to serve two consecutive,

rather than concurrent, terms of imprisonment of 5 to 10 years;

and (2) he was fully and fairly notified of those sentences and,

therefore, was not deprived of his right to due process. So, to

prevail on either claim, McKnight must demonstrate that the state

habeas court’s rejection of his petition was based on an

unreasonable determination of the relevant facts, based on the

record then before it. See 28 U.S.C. § 2254(d)(2). Moreover,

because the federal habeas corpus statute provides that “a

determination of a factual issue made by a State court shall be

presumed to be correct,” 28 U.S.C. § 2254(e), McKnight bears the

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1 Arguably, McKnight’s second claim - that he was denied

due process - is based on his assertion that the state habeas

court resolved the issue in a manner that was contrary to, or

involved an unreasonable application of, federal law. But,

McKnight did not clearly articulate that claim until he filed his

motion for reconsideration (which the court denied without

comment). Accordingly, the state habeas court never specifically

addressed the due process claim. But, in denying McKnight’s

motion to reconsider, the court necessarily concluded that

McKnight was not denied due process because: (1) the trial

court’s sentencing sheets and forms revealed that the court had

plainly sentenced McKnight to two consecutive, rather than

concurrent, terms of imprisonment; and (2) McKnight failed to

point to any evidence that might suggest the trial court

neglected to fully apprise him of the consecutive nature of the

sentences - both of which are findings of fact. 

5

burden of “rebutting the presumption of correctness by clear and

convincing evidence,” id.

1

Background

In March of 1994, McKnight was convicted of three counts of

aggravated felonious sexual assault (state court docket numbers

93-S-1091, 1092, and 1094), as well as two counts of felonious

sexual assault. In June of that year, the trial court sentenced

McKnight as follows: 

1. Case number 93-S-1091: not more than 10

years, nor less than 5 years, stand

committed, with pretrial confinement credit

of 72 days; 

2. Case number 93-S-1094: not more than 10

years, nor less than 5 years, consecutive to

the sentence imposed in case no. 93-S-1091

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(i.e., commencing upon McKnight’s having

served the sentence imposed in case no. 93-S1091); and 

3. Case number 93-S-1092: not more than 7 years,

nor less than 31⁄2 years, suspended,

consecutive to 93-S-1094 and concurrent with

the sentences imposed in cases 93-S-1527 and

1528 (presumably, the two convictions for

felonious sexual assault). 

Exhibit 3 to defendants’ memorandum (document no. 11-5). Each of

the sentencing forms was completed and signed by the trial judge,

with handwritten notations describing details such as the length

of the sentence, McKnight’s pretrial confinement credit, whether

the sentence was consecutive to or concurrent with another, and,

as to the concurrent sentence imposed in case number 93-S-1094,

the conditions under which the court would consider suspending a

portion of that sentence. Those handwritten notes convey that

the sentencing judge was fully aware of the sentences he was

imposing on McKnight and intended the two 5 to 10 year terms of

incarceration to be consecutive. McKnight did not appeal his

convictions or his sentences to the New Hampshire Supreme Court. 

The mittimus sent by the clerk of the state trial court to

the prison appears to have combined the sentences for cases 93-S1091 and 1094 (both of which are referenced at the top of the

document) and says simply that the “defendant is sentenced to the

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2 The mittimus is an order of the sentencing court,

directing the sheriff (or other law enforcement officer) to take

custody of the defendant and deliver him to the prison to serve

the sentence imposed upon him. See N.H. Rev. Stat. Ann. ch.

622:9. See also Riley v. Whittiker, 49 N.H. 145, 148 (1869)

(noting that the mittimus commands “the sheriff to convey the

respondent safely to the jail, . . . and deliver him to the

keeper thereof, and the said keeper . . . to receive the said

respondent into his custody in said jail and him there safely

keep.”) 

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New Hampshire State prison for not more than 10 years, nor less

than 5 years.” Exhibit 3 to defendants’ memorandum (document no.

11-3). That document is the obvious source of McKnight’s

professed confusion (as well as the initial confusion at the

prison).2

In March of 2004, erroneously believing the McKnight had

served his 10-year maximum sentence, the administrator of

offender records at the New Hampshire State Prison issued a

memorandum informing the relevant parties that McKnight would be

released from confinement on March 18, 2004. Upon learning that

the prison intended to release McKnight, the trial court sent

official copies of McKnight’s sentencing documents to the prison. 

Those documents demonstrated that McKnight had not yet served his

full sentence and, in fact, had an additional sentence of 5 to 10

years to serve before he would be eligible for release (i.e., he

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had yet to begin serving the consecutive sentence of 5 to 10

years imposed in case number 93-S-1094). 

Shortly thereafter, McKnight filed a petition for writ of

habeas corpus in state court, alleging that he was being

wrongfully held beyond his maximum release date. At a hearing on

April 20, 2004, the state habeas court observed that the

certified sentencing documents made it clear that the trial court

had imposed two consecutive sentences of 5 to 10 years in prison. 

McKnight told the court that he was not aware that he had been

sentenced to consecutive terms of imprisonment and believed,

based upon the mittimus contained in the prison’s records, that

he had already served his full sentence. He did not, however,

present any evidence supporting his claim that, when the trial

court orally imposed his sentence, it ordered him detained under

concurrent terms of incarceration. Absent such evidence, the

state habeas court informed McKnight that the trial court’s

sentencing documents, not the mittimus, controlled the term of

his confinement. 

In its written order, the state habeas court ruled that

McKnight had been sentenced to “2 consecutive terms of 5-10

years” and, therefore, the “March 12, 2004, record of the Dept.

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of Corrections appear[ed] to be in error.” Exhibit 4 to

defendants’ memorandum (document no. 11-6). McKnight filed a

motion to reconsider, which the court denied. He then appealed

to the New Hampshire Supreme Court, which declined the appeal

without comment. Subsequently, pursuant to 28 U.S.C. § 2254,

McKnight filed a petition seeking habeas corpus relief from this

court. 

Discussion

I. McKnight’s Petition Must be Resolved Based

Upon the State Habeas Court’s Record. 

McKnight has not requested, nor does it appear that he would

be entitled to, an evidentiary hearing aimed at supplementing the

state habeas court’s record. Section 2254(e)(2) of Title 28

provides that a state habeas petitioner is entitled to an

evidentiary hearing on his or her claims only when one or more of

the following conditions is met: (1) the claims are based upon a

new rule of constitutional law, made retroactive to cases on

collateral review; (2) the claims are based upon a factual matter

that could not have been previously discovered through the

exercise of reasonable diligence; or (3) the petitioner has a

legitimate claim of actual innocence (that is, one provable by

clear and convincing evidence). Because none of those factors

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appears to be present in this case (and, of course, because

McKnight has not requested a hearing), the court must resolve

McKnight’s petition based solely on the record presented to the

state habeas court. 

II. McKnight was Sentenced to Consecutive,

not Concurrent, Terms of imprisonment. 

The state habeas court supportably determined, as a factual

matter, that McKnight was sentenced to consecutive, rather than

concurrent, terms of imprisonment. The trial court’s certified

sentencing documents persuasively demonstrated that the 5 to 10

year sentence imposed in case number 93-S-1094 was consecutive to

the 5 to 10 year sentence imposed in case number 03-S-1091. 

Those documents were apparently properly filed in the court’s

records and McKnight was provided with copies either at or

shortly after his sentencing, which copies would have fully

apprised him of the consecutive nature of the two sentences of 5

to 10 years. He does not claim otherwise. 

To be sure, the mittimus prepared by the clerk of court and

delivered to the state prison was somewhat ambiguous (by virtue

of its silence on the issue) and might be construed by one

unfamiliar with the case as suggesting that the sentences in

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those two cases were imposed concurrently. Cf. State v. Rau, 129

N.H. 126, 130 (1987) (“[W]hen a sentencing order, encompassing

multiple counts or multiple indictments, is silent as to whether

the sentences imposed on each count or indictment are to run

concurrently or consecutively, the presumption is that the

sentences run concurrently.”) (emphasis supplied). Importantly,

however, the trial court’s sentencing orders, not the mittimus,

control the term and conditions of McKnight’s sentences. As

Justice Cardozo observed more than seventy years ago:

The only sentence known to the law is the sentence or

judgment entered upon the records of the court. If the

entry is inaccurate, there is a remedy by motion to

correct it to the end that it may speak the truth. But

the judgment imports verity when collaterally assailed. 

Until corrected in a direct proceeding, it says what it

was meant to say, and this by an irrebuttable

presumption. In any collateral inquiry, a court will

close its ears to a suggestion that the sentence

entered in the minutes is something other than the

authentic expression of the sentence of the judge.

* * * 

A warrant of commitment [i.e., mittimus] departing in

matter of substance from the judgment back of it is

void. . . . The prisoner is detained, not by virtue of

the warrant of commitment, but on account of the

judgment and sentence. 

Hill v. Wampler, 298 U.S. 460, 464-65 (1936) (citations and

internal punctuation omitted) (emphasis supplied). 

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3 McKnight also suggests, without support, that the trial

court’s certified sentencing documents were forged some time

after the prison notified the court that he was about to be

released. By falsifying those documents, says McKnight, the

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The evidence before the state habeas court was plain: while

the mittimus delivered to the state prison differed in expression

from the judgment and was ambiguous, the trial court’s sentencing

documents were unambiguous. The trial court sentenced McKnight

to serve consecutive terms of imprisonment of 5 to 10 years. 

McKnight has not pointed to any evidence which might even hint

that the state habeas court based its decision “on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. §

2254(d)(2). As to the first claim in McKnight’s petition, then,

the State is entitled to judgment as a matter of law. 

III. McKnight was not Denied Due Process. 

McKnight says he believes that when the court orally

pronounced his sentence, it ordered him to serve no more than a

total of ten years in prison - a recollection he says is

consistent with the mittimus contained in the prison’s records. 

Accordingly, to the extent the trial court’s documents disclose

that his sentence was more severe than the one he claims the

court orally announced, he says he was denied due process.3 

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trial court violated his constitutionally protected right to due

process, as well as his right not to be subjected to ex post

facto laws. He has not, however, submitted any evidence to

support that claim. 

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In other words, McKnight asserts that, because the court’s

oral pronouncement of sentence (allegedly) failed to properly

apprise him of all the essential elements of that sentence (i.e.,

the consecutive nature of two terms of imprisonment), he was not

provided with a clear, unambiguous statement of his sentence, as

required by the Constitution. See, e.g., Perkins v. Peyton, 369

F.2d 590, 592 (4th Cir. 1966) (holding that a state inmate has a

right “not to be detained under a judgment which is so vague and

uncertain as to be invalid under the familiar principles of due

process”). See also State v. Burgess, 141 N.H. 51, 52 (1996)

(“Due process requires a sentencing court to make clear at the

time of sentencing in plain and certain terms what punishment it

is extracting.”) (citations and internal punctuation omitted)

(emphasis in original). 

There is no evidence in the record that supports McKnight’s

claim that the trial court failed to inform him that his two 5 to

10 year sentences were consecutive. At the hearing on his state

habeas petition, McKnight simply stated (it is unclear whether he

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was under oath) that he believed he had served his full term

after he completed ten years in prison. 

Court: “It looks pretty clear to me. There are two

consecutive sentences.” 

McKnight: “Your Honor, I wasn’t aware of all that. I

just maxed a five to ten sentence out and

they signed my papers on March 12th of this

year.” 

Court: “Well, the documents which control your

confinement are the court documents and not

the Department of Corrections documents. 

Unless there’s some error or something in the

court documents, I find it difficult to

believe. They are certified copies of the

court documents. It appears as though you

were sentenced to two consecutive five to ten

year sentences. So unless there is something

else you can tell me, there’s no relief I can

grant you on this petition.” 

Transcript of Habeas Hearing (document no. 9) at 2. McKnight did

not respond with any evidence to support his claims. 

Parenthetically, the court notes that because McKnight did

not appeal either his convictions or his sentences, a transcript

of his sentencing hearing was never prepared. And, in January of

2005 - more than nine months after McKnight filed his state

habeas corpus petition - the audio tapes of that sentencing

hearing were destroyed in the ordinary course of the court’s

business. See N.H. Super. Ct. Admin. R. 3-9(b) and 3-16

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(providing that stenographic notes and audio tapes of criminal

proceedings may be destroyed ten years following the date on

which they were prepared). But, this court cannot assume, based

simply upon the unavailability of the audio tapes from McKnight’s

sentencing hearing, that the trial court failed to advise him

that the sentences imposed were consecutive to one another. Cf.

Parke v. Raley, 506 U.S. 20, 30 (1992) (“On collateral review, we

think it defies logic to presume from the mere unavailability of

a transcript (assuming no allegation that the unavailability is

due to governmental misconduct) that the defendant was not

advised of his rights.”) (punctuation in original); United States

v. Miller, 20 F.3d 926, 932 (8th Cir. 1994) (“When the relevant

record is missing or nonexistent, as is the case here, the

presumption is that the actions of a court of competent

jurisdiction are correct.”). To prevail on his claim, McKnight

must carry a substantial burden of proof: he must demonstrate, by

clear and convincing evidence, that the state habeas court based

its disposition of his petition on an unreasonable determination

of the facts in light of the evidence before it. Given the

record developed before the state habeas court, McKnight cannot

meet that burden. 

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Under the circumstances of this case, the trial court’s

official sentencing records and judgment control and, as the

state habeas court concluded, they establish that the trial court

did (and intended to) sentence McKnight to consecutive, rather

than concurrent, terms of imprisonment. Nothing in the record

suggests that the trial court failed to fully apprise McKnight of

the consecutive nature of those sentences, nor has McKnight

claimed that there is any evidence to support his conclusory

assertion to the contrary. There being no genuinely disputed

material facts, defendants are, then, entitled to judgment as a

matter of law as to McKnight’s second claim. 

Conclusion

To the extent McKnight actually believes the sentencing

court erred in transcribing the official sentencing documents and

mistakenly made his terms consecutive, rather than concurrent,

his remedy lies with the trial court. That is, McKnight should

file a motion in that court seeking to correct the alleged

clerical mistake. He cannot challenge the accuracy of those

documents on collateral review. See, e.g., Hill v. Wampler, 298

U.S. at 464 (holding that if the sentence entered upon the

records of the court is believed to be inaccurate, that defect

must be addressed with the sentencing court or on direct appeal;

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it cannot be attacked in a subsequent collateral proceeding). 

See also Sterling v. Pate, 403 F.2d 425, 427 (7th Cir. 1968) (“It

is apparent that the District Court applied an incorrect legal

standard when it accepted testimony of the petitioner, coupled

with the recital in the mittimus, to impeach the verity of the

certified common law record of the criminal proceeding. It has

been consistently held in habeas corpus proceedings that the

record of the trial court in the underlying criminal proceeding

is not open to collateral attack, but that such record imports

absolute verity and may not be so impeached.”). 

For the foregoing reasons, as well as those set forth in

defendants’ memorandum, defendants are entitled to judgment as a

matter of law as to both claims raised in McKnight’s petition for

habeas corpus relief. Accordingly, their motion for summary

judgment (document no. 11) is granted. The Clerk of Court shall

enter judgment in accordance with this order and close the case. 

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

July 11, 2006

cc: Walter M. McKnight, pro se

Susan P. McGinnis, Esq.

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