UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Chad Evans,

Petitioner

v. No. 1:08-cv-105-JD

Warden, 

New Hampshire State Prison, 

Respondent 

 

PETITIONER’S MEMORANDUM OF LAW IN SUPPORT OF OBJECTION

TO MOTION FOR SUMMARY JUDGMENT

AND CROSS-MOTION FOR SUMMARY JUDGMENT

On February 19, 2010, the Warden filed a Motion for

Summary Judgment (“MSJ”) on Evans’s Petition for Writ of

Habeas Corpus Under 28 U.S.C. §2254 (“Petit.”), and an

accompanying Memorandum of Law. Evans has filed an

Objection to the Warden’s Motion, as well as a Cross-Motion

for Summary Judgment. He files this Memorandum in support

of both his Objection and Cross-Motion. Based on the

Petition, which Evans incorporates by reference, and the

additional arguments in his Memorandum, Evans is entitled to

summary judgment on the pleadings.

Background

Chad Evans was charged in state court with second

degree murder, five counts of second degree assault, simple

assault, and endangering the welfare of a child. Petition

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of Evans, 154 N.H. 142, 144, 908 A.2d 796, 798 (2006), 

cert. denied, __ U.S. __, 127 S.Ct. 1888, 167 L.Ed.2d 274

(2007). On December 21, 2001, after ten days of trial and

three days of deliberation, the jury convicted Evans of all

charges. Id. On April 16, 2002, the trial court (Nadeau,

J.) sentenced Evans to serve 28 years to life in prison on

the murder charge, and concurrent sentences on the other

charges. Id. 

Eleven days after Evans was convicted, N.H. R.S.A.

651:58, I (“RSA 651:58, I”) went into effect. Id. This

statute gave the State the opportunity to appeal a state

prison sentence to the Sentence Review Division of the

Superior Court – an option formerly held only by the

sentenced inmate. Petition of the State of New Hampshire

(Sentence Review Division), 150 N.H. 296, 297, 837 A.2d 291,

292 (2003). The State exercised its statutory right to

appeal Evans’s sentence. Id. The Sentence Review Division

kept in tact the murder sentence of 28 years to life, but

imposed three consecutive 5-15 year sentences on three

second degree assault convictions. Petition of Evans, 154

N.H. at 144, 908 A.2d at 799. This increased Evans’s

minimum term of imprisonment from 28 to 43 years.

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Evans challenged the Division’s ability to increase his

sentence in the New Hampshire Supreme Court, alleging, in

pertinent part, that RSA 651:58, I was ex post facto as

applied to his case. Id. That court rejected his claim. 

Id. The United States Supreme Court subsequently denied his

petition for writ of certiorari. Evans v. New Hampshire,

__ U.S. __, 127 S.Ct. 1888, 167 L.Ed.2d 274 (2007). Evans

then filed this Petition, which this Court stayed based on

his request to develop and exhaust other state court claims. 

See Order of May 6, 2008. On January 12, 2010, the Court

lifted the stay and Evans reinitiated his Petition. See

Order of January 20, 2010; Petition (re-served on January

20, 2010). 

Pending are the Petition, the Warden’s Motion for

Summary Judgment, Evans’s Objection and his Cross-Motion for

Summary Judgment. Evans agrees with the Warden that no

evidentiary hearing is needed to resolve these motions. 

Based on the facts and the law, the application of RSA

651:58, I to Evans violates the federal constitutional

prohibition against ex post facto laws. U.S. Const. Art. I,

§10. This Court should grant his Petition and order the

Sentence Review Division to reinstate his sentence of 28

years to life in prison.

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Response to Warden’s Arguments 

The Warden argues that RSA 651:58, I is not an ex post

facto law as applied to Evans. MSJ 10-12. He argues

alternatively that the state court’s application of the ex

post facto clause was neither contrary to, nor an

unreasonable application of, federal law. MSJ 12-15. The

Warden contends that the Clause’s reach is nearly

exclusively limited to crimes or penalties that were not in

effect when the defendant committed his crime. MSJ 10-11. 

This reading ignores Supreme Court precedent holding that a

law violates the ex post facto clause when it “creat[es] a

significant risk of increas[ed] . . . punishment.” Garner

v. Jones, 529 U.S. 244, 255, 120 S.Ct. 1362, 146 L.Ed.2d 236

(2000). 

In addition to the Third, Seventh and Eighth Circuit

cases Evans cited in his Petition, Petit. 7-8, the Fifth,

Sixth, Ninth, Tenth, Eleventh, and D.C. Circuits have

engaged in the “significant risk of increased punishment”

analysis of ex post facto claims. See, e.g., Wallace v.

Quarterman, 516 F.3d 351, 355 (5 Cir. 2008)(applying th

“significant risk” analysis to change in parole

regulations); Michael v. Ghee, 498 F.3d 372, 382 (6 Cir. th

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2007)(focus is “whether the new guidelines present a

significant risk of increasing the plaintiff’s amount of

time actually served”); Fletcher v. Reilly, 433 F.3d 867,

876-77 (D.C. Cir. 2006)(“The controlling inquiry under

Garner is . . . whether differences in the exercise of

discretion between the two systems actually create[ ] a

significant risk of prolonging [an inmate’s]

incarceration.”)(quotation omitted)(brackets added by

Fletcher Court); Swan v. Ray, 293 F.3d 1252, 1253-54 (11th

Cir. 2002)(discussing Garner); Henderson v. Scott, 260 F.3d

1213, 1216 (10 Cir. 2001)(new law must create sufficient th

risk of increasing punishment).

The First Circuit, in a case cited by the Warden, MSJ

12, has also applied the “significant risk of increased

punishment” test to ex post facto claims. Hamm v. Latessa,

72 F.3d 947 (1 Cir. 1995). In Hamm, an inmate pursued an st

ex post facto claim based on a change in the parole scheme. 

Id. at 957-958. The court rejected the claim based on the

inmate’s inability to demonstrate a significant likelihood

of harm, in the form of increased incarceration, based on

the change in the scheme. Id. (relying on California

Department of Corrections v. Morales, 514 U.S. 499, 115

S.Ct. 1597, 131 L.Ed.2d 588 (1995)).

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The Warden argues that RSA 651:58, I “did not increase

the maximum sentence, nor did it assure that, if the State

requested a lengthier sentence, the request would be

fulfilled.” MSJ 12. These statements are accurate. 

However, if “significant risk of increased punishment” is

the appropriate test, RSA 651:58, I is ex post facto as

applied to Evans. Before that law was enacted, an offender

in Evans’s position had no risk of increased punishment,

after having been sentenced by the trial court, unless he

initiated review of his sentence by the Sentence Review

Division. After the law was enacted, the State could

initiate sentence review irrespective of the offender’s

intent or desire, and request that the Sentence Review

Division increase the term of incarceration the trial judge

had imposed. 

Moreover, unlike in Hamm or Morales, the risk of

increased punishment here is not speculative. When the

government appeals a sentence, the risk that the sentence

will be changed to the detriment of the defendant is great. 

See Amy Baron Evans and Jennifer Niles Coffin,

Deconstructing the Relevant Conduct Guideline: Challenging

the Use of Uncharged and Acquitted Offenses in Sentencing 32

n. 38 (August 11, 2008), available at

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http://www.fd.org/pdf_lib/relevant conduct3.pdf (“A study of

appellate decisions after Booker shows that 98.6% of withinguideline sentences appealed by defendants were affirmed,

and 78.3% of below-guideline sentences appealed by the

government were reversed.”). The fact that RSA 651:58, I

gave the State the ability to seek a sentence increase, but

did not compel the Sentence Review Division to adopt the

State’s recommendation, does not deprive the law of its ex

post facto character. See Michael, 498 F.3d at 382 (“The

presence of discretion does not displace the protections of

the Ex Post Facto clause. . . .”); Fletcher, 433 F.3d at

876-77 (regulation that changes how board exercises

discretion may still be ex post facto as applied); cf.

United States v. Demaree, 459 F.3d 791, 792-94 (7 Cir. th

2006)(change in advisory sentencing guideline not ex post

facto). 

The Warden further argues that the state court’s ruling

is neither contrary to, nor an unreasonable application of,

federal law. MSJ 12-15. Evans has two responses. First,

because the state court misconstrued the scope of the

protection afforded by the ex post facto clause, and

therefore failed to properly apply the “significant risk of

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increased punishment” test, its decision was both contrary

to and an unreasonable application of federal law. 

Second, Supreme Court precedent, while not “materially

indistinguishable” on its facts, nonetheless illustrates the

ex post facto nature of RSA 651:58, I as applied to Evans

such that the state court’s failure to apply that precedent,

and afford Evans relief, was unreasonable. The “reasonable”

interpretation of that precedent is that new laws

retrospectively exposing an offender to increased punishment

are ex post facto. Petit. at 7-8 (citing and quoting

cases). RSA 651:58, I, as applied to Evans, had that

effect. This Court should grant Evans’s petition.

WHEREFORE, Mr. Evans respectfully requests that this

Honorable Court:

a. Deny the Warden’s Motion for Summary Judgment;

b. Grant Evans’s Cross-Motion for Summary Judgment;

and

c. Remand his case to the Sentence Review Division of

the Superior Court with an order to reinstate his sentence

of 28 years to life in prison. 

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 Respectfully submitted,

 /s/ David M. Rothstein 

By 

 David M. Rothstein #5991

 Deputy Chief Appellate Defender

 Appellate Defender Program

 2 White Street

 Concord, NH 03301

 603) 228-9218

 Email: drothstein@piercelaw.edu 

 

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Motion

has been emailed this 17th day of March, 2010, to:

Elizabeth C. Woodcock

ASsistant Assistant Attorney General

at: Elizabeth.Woodcock@doj.nh.gov

/s/ David M. Rothstein 

 David M. Rothstein

DATED: March 17, 2010

 

 

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