UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Kenneth Violette

v. Civil No. 07-cv-047-PB

New Hampshire State Prison, Warden

O R D E R

Pro se petitioner Kenneth Violette has filed a petition for

a writ of habeas corpus and amendment thereto, pursuant to 28

U.S.C. § 2254, challenging the consecutive sentences imposed upon

him by the New Hampshire Superior Court (document nos. 1, 5 and

7). The petition is before me for preliminary review. See Rule

4 of the Rules Governing § 2254 Proceedings (“Habeas Rules”)

(requiring initial review to determine whether the petition is

facially valid); see also United States District Court for the

District of New Hampshire Local Rule (“LR”) 4.3(d)(2)

(authorizing the magistrate judge to preliminarily review pro se

pleadings). For the reasons stated below, I order the petition

served on the respondent.

Background

Violette was convicted on July 1, 1998 by the New Hampshire

Superior Court (Hillsborough County) of four counts of aggravated

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felonious sexual assault pursuant to N.H. Rev. Stat. Ann. (“RSA”)

632-A:2 and one count of attempted aggravated felonious sexual

assault pursuant to RSA 629:1. He was sentenced to a term of

imprisonment, which he is currently serving at the New Hampshire

State Prison (“NHSP”). He did not file a direct appeal of his

conviction.

Subsequently, Violette filed with the superior court a

petition to correct illegal sentence. Although he has not

provided this Court with a copy of the petition, he allegedly

raised the following claims:

1. imposition of consecutive sentences must be

expressly authorized under New Hampshire law;

2. constitutional fair notice requires that

consecutive sentences be explicit within the

statutes;

3. “design of cumulative punishments, not expressly

authorized by statute, intrudes on legislative

substantive lawmaking powers;”

4. “judicial distortion of legislatively designed and

constitutionally mandated proportional punishments

results in disproportionate punishments;” and

5. “since the N.H. Criminal Code lacks any

consecutive sentencing authorization, it is

ambiguous and subject to lenity.” 

The superior court denied the petition on April 19, 2006.

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1Defining the rule, the First Circuit has held that “[i]n a

criminal case, the rule of lenity requires a court to resolve

true statutory uncertainty in the accused’s favor.” United

States v. Ahlers, 305 F.3d 54, 62 (1st Cir. 2002). The rule,

however, is one of statutory interpretation. See Sabetti v.

DiPaolo, 16 F.3d 16, 19 (1st Cir. 1994). Thus, federal courts

lack the power to apply the rule of lenity to a state statute,

except to serve constitutional interests. See Sabetti, 16 F.3d

at 19; accord Lurie v. Wittner, 228 F.3d 113, 125-26 (2d Cir.

2000).

3

Violette subsequently filed a discretionary appeal with the

New Hampshire Supreme Court (“NHSC”) in which he alleged the

following claims:

1. the sentencing court lacked statutory authority to

impose consecutive sentences;

2. Violette was denied fair notice regarding the risk

of imposition of consecutive sentences in

violation of his right to due process under state

and federal law; 

3. imposition of consecutive sentences violates the

constitutional separation of powers;

4. the consecutive sentences imposed upon Violette

were illegal because they exceeded and therefore

were disproportionate to the sentences authorized

by New Hampshire statute; and 

5. lacking a statute specifying how multiple

sentences may be imposed, the New Hampshire

Criminal Code should be construed in a defendant’s

favor, as required by the rule of lenity.1

Attached to the appeal was an appendix in which Violette cited to

both state and federal precedent in support of his claims. The

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NHSC deferred ruling upon his appeal pending the court’s decision

in Duquette v. Warden, NH State Prison, No. 2006-079, 2007 WL

120602 (N.H. Jan. 19, 2007). 

 On February 21, 2007, Violette filed the instant petition in

which he alleged the following two grounds for federal habeas

corpus relief:

1. imposition of consecutive sentences under New

Hampshire law violates federal due process where: 

(a) fair notice is not provided regarding the risk of

imposition of consecutive sentences; 

(b) ambiguities in the New Hampshire criminal statutes

are not construed in a defendant’s favor, in violation

of the rule of lenity; and

(c) consecutive sentences are not authorized under New

Hampshire law (Ground One); and 

2. “[j]udicial use of UNGRANTED substantive

punishment design powers violated federal Due

Process by subjecting citizens to punishments that

are neither authorized nor Legislatively designed” 

(Ground Two).

This Court stayed the proceedings and held the petition in

abeyance pending the NHSC’s ruling on Violette’s state court

appeal. Violette was further instructed to clarify Ground Two of

his petition. On April 13, 2007, the NHSC declined his appeal

without opinion. Having requested this Court to lift the stay of

proceedings, Violette now seeks preliminary review his federal

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petition. In addition, he has clarified that Ground Two of his

petition is “an extension or derivative of the ‘Fair Notice’

claim” raised in Ground One.

Standard of Review

In reviewing a pro se petition, this Court must construe the

pleadings liberally, see Ayala Serrano v. Gonzalez, 909 F.2d 8,

15 (1st Cir. 1990) (following Estelle v. Gamble, 429 U.S. 97, 106

(1976)), treating all well-pleaded factual allegations as true

and drawing all reasonable inferences in the litigant’s favor,

see Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996) (explaining

that all “well-pleaded factual averments,” not bald assertions,

must be accepted as true). This review ensures that pro se

pleadings are given fair and meaningful consideration. See

Eveland v. Director of CIA, 843 F.2d 46, 49 (1st Cir. 1988). I

apply this standard in reviewing Violette’s petition.

Discussion

I. Custody and Exhaustion

To be eligible for habeas relief, Violette must show that he

is in custody and has exhausted all state court remedies (or that

he falls within a narrow category of cases in which exhaustion is

not required, such as the absence of an available or effective

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state corrective process). See 28 U.S.C. § 2254(a) & (b); see

also Duncan v. Henry, 513 U.S. 364, 365 (1995). He satisfies the

first requirement as he is currently incarcerated at the NHSP. 

As discussed more fully below, he also satisfies the second

requirement as he has demonstrated exhaustion of state remedies

with regard to each claim raised in his federal petition.

A petitioner’s remedies in New Hampshire are exhausted when

the State’s highest court has had an opportunity to rule on the

petitioner’s federal constitutional claims. See Lanigan v.

Maloney, 853 F.2d 40, 42 (1st Cir. 1988), cert. denied, 488 U.S.

1007 (1989) (“habeas corpus petitioner must have presented the

substance of his federal constitutional claim to the state

appellate courts so that the state had the first chance to

correct the claimed constitutional error”); see also Baldwin v.

Reese, 541 U.S. 27, 29 (2004) (citing Duncan, 513 U.S. at 365-66

(requiring petitioner to “fairly present” his claim in the

appropriate state courts, including a state supreme court with

powers of discretionary review, thereby alerting that court to

the federal nature of the claim)). “[T]he exhaustion principle

holds, in general, that a federal court will not entertain an

application for habeas relief unless the petitioner first has

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fully exhausted his state remedies in respect to each and every

claim contained within the application.” Adelson v. DiPaola, 131

F.3d 259, 261 (1st Cir. 1997). 

In the instant petition, Violette raises two grounds for

federal habeas corpus relief, as identified above. The two

grounds are identical to the claims raised by Violette in his

discretionary appeal that was presented to the NHSC for review. 

While he could have presented his federal constitutional issues

in a more direct and precise manner, his discretionary appeal was

minimally sufficient to apprise the NHSC of the federal

constitutional dimension of his claims. I therefore find that

the two claims presented here, including the federal nature of

the claims, have been properly exhausted in the state courts to

allow Violette’s federal habeas corpus action to proceed at this

time.

Conclusion

Accordingly, I direct that Violette’s petition be served on

the respondent. See Habeas Rule 4. The respondent shall file an

answer or other pleading in response to the allegations made

therein. See id. (requiring reviewing judge to order a response

to the petition). The Clerk’s Office is directed to serve the

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New Hampshire Office of the Attorney General, as provided in the

Agreement On Acceptance Of Service, copies of this Order and the

habeas petition (document nos. 1, 5 and 7). Respondent shall

answer or otherwise plead within thirty (30) days of the date of

this Order. The answer shall comply with the requirements of

Habeas Rule 5 (setting forth contents of the answer). 

Upon receipt of the response, the Court will determine

whether a hearing is warranted. See Habeas Rule 8 (providing

circumstances under which a hearing is appropriate). 

Petitioner is referred to Fed. R. Civ. P. 5, which requires

that every pleading, written motion, notice, and similar paper,

after the petition, shall be served on all parties. Such service

is to be made by mailing the material to the parties’ attorneys.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: May 17, 2007

cc: Kenneth Violette, pro se

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