1The motion to supplement (document no. 5) will be accepted

as an addenda to the original petition (document no. 1). The

documents, in the aggregate, will constitute the petition in this

matter for all purposes.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Todd M. Horstkotte

v. Civil No. 08-cv-138-JL

Richard Gerry, Warden,

New Hampshire State Prison

REPORT AND RECOMMENDATION

Before the Court is Todd Horstkotte’s petition for a writ of

habeas corpus (document no. 1), filed pursuant to 28 U.S.C. §

2254, and his “Motion to Supplement Civil Complaint” (document

no. 5).1 The matter is before me for preliminary review to

determine whether or not the claims raised in the petition are

facially valid and may proceed. See Rule 4 of the Rules

Governing Section 2254 cases in the United States District Courts

(“§ 2254 Rules”); United States District Court District of New

Hampshire Local Rule (“LR”) 4.3(d)(2) (authorizing magistrate

judge to preliminarily review pro se prisoner filings pursuant to

28 U.S.C. § 1915A).

Case 1:08-cv-00138-JL Document 6 Filed 05/12/08 Page 1 of 14
2

Standard of Review

Under this Court’s local rules, when an incarcerated

plaintiff commences an action pro se and in forma pauperis, the

magistrate judge is directed to conduct a preliminary review. LR

4.3(d)(2). In conducting the preliminary review, the Court

construes pro se pleadings liberally, however inartfully pleaded. 

See Erickson v. Pardus, ___ U.S. ___, 127 S. Ct. 2197, 2200

(2007) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and

Haines v. Kerner, 404 U.S. 519, 520-21 (1972) to construe pro se

pleadings liberally in favor of the pro se party). “The policy

behind affording pro se plaintiffs liberal interpretation is that

if they present sufficient facts, the court may intuit the

correct cause of action, even if it was imperfectly pled.” See

Castro v. United States, 540 U.S. 375, 381 (2003) (noting that

courts may construe pro se pleadings so as to avoid

inappropriately stringent rules and unnecessary dismissals of

claims); Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). 

All of the factual assertions made by a pro se plaintiff and

inferences reasonably drawn therefrom must be accepted as true. 

See id. This review ensures that pro se pleadings are given fair

and meaningful consideration.

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3

Background

On June 27, 2007, Todd Horstkotte plead guilty to felony

theft and was sentenced to one to three years in the New

Hampshire State Prison (“NHSP”). On August 1, 2007, Horstkotte

plead guilty to a second felony theft offense and was sentenced

to one to four years in prison, to be served concurrently with

his June 27 sentence. Horstkotte first became eligible for

parole on January 16, 2008. His maximum sentence will expire in

January of 2011. 

Horstkotte alleges that, contrary to New Hampshire

Department of Corrections (“DOC”) policy, he was not given a

parole plan, paperwork, or a parole hearing during the sixty days

prior to his January 16, 2008 minimum parole date (“MPD”),

despite making inquiries during that time. In fact, no prison or

parole board official contacted Horstkotte regarding parole at

any time prior to his MPD. On January 16, 2008, Horstkotte filed

a petition for a writ of habeas corpus in the Merrimack County

Superior Court. That Court scheduled an expedited hearing on the

petition for February 8, 2008.

On January 22, 2008, the NHSP Warden was served with the

State habeas petition and notified of the February 8, 2008

Case 1:08-cv-00138-JL Document 6 Filed 05/12/08 Page 3 of 14
4

hearing date. On January 23, 2008, the parole board received a

directive, emailed from the office of the DOC Commissioner,

instructing them to schedule a hearing for Horstkotte. On

January 25, 2008, Horstkotte was notified that a parole hearing

had been scheduled for January 31, 2008. In addition, a

classification hearing was scheduled for January 30, 2008. 

On January 28, 2008, Horstkotte requested paperwork relevant

to his parole prior to his hearing date. Specifically, he

requested his pre-parole synopsis and parole plan. These

documents are intended to reflect information gathered regarding

a prospective parolee, and are supposed to be reviewed and

corroborated by an inmate’s case counselor before they are

submitted to the parole board. Due to the scheduling of the

hearing, however, these documents were not produced to Horstkotte

or the members of the parole board, and thus were not utilized by

the parole board at Horstkotte’s parole hearing. In addition,

due to the short notice he was given of the hearing date,

Horstkotte was unable to arrange for family, friends, or a future

employer to be present at the hearing to support his request for

release on parole. 

Case 1:08-cv-00138-JL Document 6 Filed 05/12/08 Page 4 of 14
5

On January 30, 2008, after his classification hearing, the

classifications office at the NHSP recommended that Horstkotte’s

custody status be increased from C-3, a medium security

classification, to C-4, which is “close custody,” a higher

security level, based on his disciplinary record at the NHSP. 

Prior to that hearing, Horstkotte had been classified C-3 since

at least November 16, 2007. 

On January 31, a sixty second parole hearing was held. 

After the hearing, the parole board denied Horstkotte parole on

the basis of his pending C-4 status and disciplinary record, and

advised Horstkotte that his parole request could be reheard when

he had again attained a C-3 security status.

On February 8, 2008, at the Merrimack Superior Court hearing

on Horstkotte’s petition for a writ of habeas corpus, the Warden

admitted that Horstkotte’s hearing had been administratively

overlooked, and had thus been scheduled in haste. The Warden

further conceded that, as a result, many of the procedures

ordinarily undertaken prior to a parole hearing, including notice

to interested parties and the preparation of a prerelease

synopsis and parole plan, had been dispensed with in the interest

of affording Horstkotte a quick hearing. The Warden also

Case 1:08-cv-00138-JL Document 6 Filed 05/12/08 Page 5 of 14
2To the extent that Horstkotte intended a constitutional

challenge to his classification hearing or security status, such

a claim must be raised in a civil rights action brought pursuant

to § 1983. However, Horstkotte should be aware that an inmate

has no liberty interest in being housed or classified in a

particular facility or in a particular security status. Meachum

v. Fano, 427 U.S. 215, 225 (1976). As prison inmates do not have

any liberty interest in where they are housed, transfers within

the prison are well within the discretion of prison officials,

and inmates are not protected from such transfers by the

constitution. See Olim v. Wakinekona, 461 U.S. 238, 244-45

(1983) (citing Meachum, 427 U.S. at 224-25, to support the

conclusion that prisoners have no liberty interest protecting

them from housing transfers).

6

asserted that Horstkotte would likely have been granted parole

but for his C-4 classification, and that he would likely be

released on parole once he again achieves a C-3 classification.

After the February 8 hearing, the Merrimack County Superior

Court denied Horstkotte’s petition, stating that it was moot, as

he had been given a parole hearing. Horstkotte appealed the

Superior Court’s decision to the New Hampshire Supreme Court,

which declined to hear his appeal. This petition followed. 

Here, Horstkotte claims that the prison hastily increased

his classification to C-4 so that they would have a reason not to

grant his parole.2 Horstkotte asserts that this measure was

taken by the parole board in order to shield itself from charges

that it had improperly extended Horstkotte’s period of

incarceration by denying him certain procedures, including

Case 1:08-cv-00138-JL Document 6 Filed 05/12/08 Page 6 of 14
3The claims as identified herein will be considered to be

the claims raised in the petition for all purposes. If

Horstkotte objects to the identification of the claims here, he

must do so by properly objecting to this Report and

Recommendation.

7

adequate notice and a parole hearing prior to his MPD. 

Horstkotte claims that the January 31 parole hearing is void, as

it did not comply with the procedural requirements of State laws

governing parole hearings, and that he should, therefore, be

immediately released on parole.

Discussion3

I. Claims Based on Right to Parole

Horstkotte alleges that the denial of his parole was

improper, and that he is unconstitutionally incarcerated because

he was not granted parole. It is well-settled that a convicted

person has no constitutional right to be conditionally released,

on parole or otherwise, before the expiration of a valid

sentence. See Greenholtz v. Inmates of Neb. Penal & Corr.

Complex, 442 U.S. 1, 7 (1979). A valid conviction, with all its

procedural safeguards, extinguishes that liberty right. See id.;

see also Meachum, 427 U.S. at 224. A right to parole under the

Due Process Clause exists only if such right is created by State

law. See Sandin v. Conner, 515 U.S. 472, 483-84 (1995); Hamm v.

Case 1:08-cv-00138-JL Document 6 Filed 05/12/08 Page 7 of 14
8

Latessa, 72 F.3d 947, 954-55 (1st Cir. 1995); Brooker v. Warden,

No. 98-466-JD, 1999 WL 813893, at * 2 (D.N.H. June 22, 1999). 

In New Hampshire, a convicted inmate has no state-created

liberty interest in parole. See Jago v. Van Curen, 454 U.S. 14,

19-21 (1981); Ainsworth v. Risley, 244 F.3d 209, 216-17 (1st Cir.

2001); Knowles v. Warden, 140 N.H. 387, 389, 666 A.2d 972, 974-75

(1995). “In determining whether state law provides a protectable

liberty interest in parole, federal courts are bound by the

state’s interpretation of applicable state law unless that

construction or application violates federal law.” Brooker, 1999

WL 813893, at * 2.

 The applicable New Hampshire parole laws are found in N.H.

Rev. Stat. Ann. (“RSA”) § 651-A. The statute provides that:

A prisoner may be released on parole upon the 

expiration of the minimum term of his sentence, 

[as adjusted by other statutory provisions], 

provided that there shall appear to the adult 

parole board, after having given the notice 

required in RSA 651-A:11, to be a reasonable 

probability that he will remain at liberty without 

violating the law and will conduct himself as a 

good citizen. Any prisoner so released shall be 

given a permit by the board to be at liberty from 

prison during the unexpired portion of the maximum 

term of his sentence.

Case 1:08-cv-00138-JL Document 6 Filed 05/12/08 Page 8 of 14
9

RSA 651-A:6, I (2007) (emphasis added). Under authority provided

by RSA 651-A:4, III, the Parole Board has adopted rules

pertaining to parole policy as follows:

Parole shall be considered a privilege, something 

to be earned rather than automatically given, and 

any release prior to the maximum term shall be 

made only upon careful and lawful consideration. 

An inmate shall not be granted parole unless the 

board finds a reasonable probability that the 

inmate will remain at liberty without violating 

any law and will conduct himself as a good 

citizen, pursuant to criteria in [N.H. Code Admin. R.] 

Par 301.02. 

N.H. Code Admin. R. Par 301.02 (2007). 

The New Hampshire Supreme Court has repeatedly held that the

parole board has broad discretion in its parole decisions and

that the Board is not mandated to grant parole to an inmate,

although he may meet certain conditions or criteria. See

Knowles, 140 N.H. at 389, 666 A.2d at 974-75; Cable v. Warden,

140 N.H. 395, 398, 666 A.2d 967, 969 (1995); Baker v. Cunningham,

128 N.H. 374, 381, 513 A.2d 956, 960 (1986). Simply put, “[t]he

possibility of parole is not a right to liberty conferred by New

Hampshire state law.” Brooker, 1999 WL 813893 at * 4. 

Horstkotte, in his petition, alleges that the parole board

unconstitutionally denied him parole. However, absent a

constitutional right to parole, or a liberty interest in the

Case 1:08-cv-00138-JL Document 6 Filed 05/12/08 Page 9 of 14
10

grant of parole, there is no constitutional due process violation

for a denial of parole because there is no due process right to

be granted parole. See Greenholtz, 442 U.S. at 7; Brooker, 1999

WL 813893 at *4. Accordingly, to the extent that Horstkotte’s

petition alleges such a claim, I recommend that the claim be

dismissed, as it is not cognizable in a federal habeas petition.

II. Denial of Parole Procedures

Horstkotte alleges that he was denied due process

protections that have been provided to him by State law. 

Horstkotte correctly alleges that the State of New Hampshire has

created a liberty interest in certain procedures attendant to het

consideration of in inmate for parole in the following provisions

of the New Hampshire Administrative Code:

All inmates shall receive a parole hearing within the 

60-day period prior to their minimum parole date. If 

parole is denied at the initial hearing, the board 

shall advise the inmate, in writing via a copy of the 

minutes of the hearing, what the inmate shall be 

required to do to be granted another hearing.

N.H. Code Admin. R. Par 203.02. 

The inmate may have family members, friends, 

professional persons, employers, or other witnesses 

present to discuss the case with the board, provided 

their names and relationship to the inmate are filed 

with the executive assistant.

N.H. Code Admin. R. 203.07.

Case 1:08-cv-00138-JL Document 6 Filed 05/12/08 Page 10 of 14
4I make no comment at this time about how Horstkotte’s

procedural due process claims might fare if brought in a civil

rights action pursuant to 42 U.S.C. § 1983. I find only that, if

Horstkotte claims that his right to being afforded certain

procedures has been violated, his remedy lies in a civil rights

action for monetary or injunctive relief.

11

These regulations create a right to have certain procedures

attendant to his parole consideration followed. The mandatory

language in the regulations creates a liberty interest in those

procedures, and may give rise to a constitutional civil rights

claim for the denial of due process in the event that he is

deprived of the procedures. See Bd. of Pardons v. Allen, 482

U.S. 369, 373 (1987); Greenholtz, 442 U.S. at 12. However, the

regulations do not create a liberty interest in actually being

granted parole, or in being released from custody. See

Greenholtz, 442 U.S. at 7; Sandin, 515 U.S. at 483-84. The

regulations in question create an interest only in those

procedures, however, and not in any abatement of Horstkotte’s

confinement. Even if the denial of the procedures could impact

an inmate’s release date, that fact alone does not create a

liberty interest in being released on a particular date where, as

here, no State law specifically creates such an interest. Thus,

a violation of the procedures does not give rise to a federal

habeas claim.4 Accordingly, I recommend dismissal of

Case 1:08-cv-00138-JL Document 6 Filed 05/12/08 Page 11 of 14
12

Horstkotte’s claim alleging a deprivation of his right to certain

procedural measures. 

Horstkotte argues in his petition that the parole hearing

held on January 31, 2008 should be deemed void, because the New

Hampshire Supreme Court has held that “. . . the action of the

parole board must be upheld unless shown as a matter of law to

have been arbitrary or capricious, or void for lack of the

requisite statutory process.” Martel v. Hancock, 115 N.H. 237,

239, 339 A.2d 9, 11 (1975). Horstkotte confuses the word “void,”

however, with a finding that the decision of the parole board

must be reversed. Voiding a parole hearing and decision,

however, does not mean that the decision of a parole board to

deny parole is overridden and a new decision to grant parole

inserted in its place. It simply means that the parties stand as

if the hearing had never happened. It may be that Horstkotte is

entitled to a new hearing. That issue is not before me at this

time, however, and I will not render an opinion on Horstkotte’s

entitlement to a hearing, or the likelihood of the success of an

action to grant him a new parole hearing brought at some point in

the future before a court of competent jurisdiction. 

Case 1:08-cv-00138-JL Document 6 Filed 05/12/08 Page 12 of 14
13

Section 2254 confers jurisdiction on this Court to issue

“writs of habeas corpus on behalf of a person in custody pursuant

to the judgment of a State court . . . on the ground that he is

in custody in violation of the Constitution or laws or treaties

of the United States.” 28 U.S.C. § 2254(a). Because Horstkotte

has neither a liberty interest in being granted parole, nor a

liberty interest in being released upon the parole board’s

failure to provide him with statutorily mandated process, he has

not alleged that his conviction, sentence, or present

incarceration violates any right accorded to him under the

federal Constitution or any federal law. 

Conclusion

For the foregoing reasons, I recommend that the petition for

a writ of habeas corpus be dismissed, as Horstkotte has failed to

raise any claims cognizable in a federal habeas action. Any

objections to this Report and Recommendation must be filed within

ten (10) days of receipt of this notice. Failure to file

objections within the specified time waives the right to appeal

the district court’s order. See Unauthorized Practice of Law

Case 1:08-cv-00138-JL Document 6 Filed 05/12/08 Page 13 of 14
14

Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992);

United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: May 12, 2008

cc: Todd M. Horstkotte, pro se

Case 1:08-cv-00138-JL Document 6 Filed 05/12/08 Page 14 of 14