1By order of April 2, 2008, civil case numbers 08-cv-21-JL

and 08-cv-22-JL were consolidated and 08-cv-21-JL was designated

as the main case.

2As petitioner is in custody at the Northern New Hampshire

Correctional Facility (“NCF”), I construe the respondent to be

the Warden of the NCF. See Habeas Rule 2 (where petitioner is in

custody pursuant to a state judgment, the state officer having

custody of the petitioner shall be named as respondent).

1

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Thomas P. Cossette

v. Civil No. 08-cv-21-JL1

State of New Hampshire2

REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 2254, petitioner Thomas P. Cossette

has filed an amended petition for a writ of habeas corpus,

challenging his New Hampshire state court conviction and

confinement (document no. 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

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2

Local Rule (“LR”) 4.3(d)(2) (authorizing the magistrate judge to

preliminarily review pro se pleadings).

For the reasons stated below, I conclude that Cossette’s

claims pertaining to his conviction (Grounds One, Two and Three)

are time-barred and, therefore, recommend that they be dismissed. 

I further conclude that his remaining claims are either

noncognizable or unexhausted for purposes of federal habeas

review and, therefore, recommend that they be dismissed (Grounds

Four, Five and Six).

Background

Convicted in 2002 by the New Hampshire Superior Court

(Carroll County) of two counts of aggravated felonious sexual

assault, Cossette was sentenced to a term of imprisonment of “no

more than seven and no less than three and one-half years.” See

State v. Cossette, No. 2007-0476, slip op. at 1 (N.H. March 20,

2008). “The sentencing court recommended to the department of

corrections that [Cossette] enter the sexual offender program

(SOP) ‘if deemed appropriate.’” Id. He is currently incarcerated

at the NCF. 

Cossette filed a direct appeal of his conviction with the

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3Cossette allegedly is unable to provide this court with a

copy of the appeal and, for purposes of demonstrating exhaustion

of his related federal claims, relies solely on the NHSC

decision.

4The counts allegedly pertained to assaults committed by

Cossette during June 2, 2000 and October 10, 2000. 

3

New Hampshire Supreme Court (“NHSC”)3 in which he raised the

following claims:

(1) the trial court erred in granting the state’s

motion to join for trial six counts of aggravated

felonious sexual assault and one count of felonious

sexual assault4;

(2) the state presented insufficient evidence to prove

that Cossette was in a position of authority over the

victim;

(3) the state presented insufficient evidence to prove

that Cossette used authority over the victim to coerce

her to submit;

(4) the trial court erred when, without a hearing, it 

denied Cossette’s motion for a new trial based upon

newly discovered exculpatory evidence; and 

(5) the trial court erred in not holding a hearing on

Cossette’s motion for new trial.

See State v. Cossette, 151 N.H. 355, 356, 856 A.2d 732, 734

(2004). The NHSC affirmed his conviction on August 31, 2004. 

See id. 151 N.H. at 363, 856 A.2d at 739.

In May 2007, after serving more than four years of his

sentence, Cossette petitioned the superior court to suspend the

Case 1:08-cv-00021-JL Document 8 Filed 02/17/09 Page 3 of 18
5Cossette alleged that the superior court’s order

retroactively and impermissibly changed his sentence of three and

one-half years to seven years, which was clearly communicated at

the time of sentencing, to a straight seven years without the

possibility of parole.

4

remaining portion of his sentence pursuant to New Hampshire Rev.

Stat. Ann. (“RSA”) 651:20 (2007). See State v. Cossette, No.

2007-0476, slip op. at 1. On June 1, 2007, the superior court

denied his petition without a hearing on the ground that he had

failed to complete the SOP. Cossette filed a motion for

reconsideration, alleging that the court erred by conditioning

his sentence suspension on his participation in the SOP. He

further alleged that his belief that he did not coerce the victim

prevented his admission into the SOP. His motion was denied on

June 19, 2007. 

Subsequently, Cossette filed an appeal with the NHSC in

which he raised the following claims:

(1) the superior court abused its discretion by relying

on the non-performance of an impossible condition to

deny a hearing on sentence suspension; and

(2) the superior court abused its discretion and

violated Cossette’s right to due process by denying a

hearing on sentence suspension on the basis of his noncompletion of the SOP, because the order retroactively

altered the sentence clearly communicated at

sentencing.5

On March 20, 2008, the NHSC affirmed the superior court’s

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5

order denying Cossette’s petition to suspend his sentence. The

NHSC held that:

(1) the superior court’s decision to deny Cossette’s

petition to suspend his sentence on the ground that he

had not yet completed the SOP did not augment his

original sentence and, therefore, did not violate due

process (citing State v. LeCouffe, 152 N.H. 148, 152-

53, 872 A.2d 773, 778 (2005)(holding that a defendant

has no right to a suspension of any remaining portion

of his sentence);

(2) the superior court did not err when it conditioned

Cossette’s early release upon completion of a program

that still exists (citing LeCouffe, 152 N.H. at 152-53,

872 A.2d at 778); and

(3) the superior court did not unsustainably exercise

its discretion by denying Cossette’s request for a

hearing on sentence suspension; the NHSC reasoned that

there is no statutory right to a hearing and that

Cossette had no constitutional right to a hearing

because procedural due process is not applicable to

sentence suspension hearings (citing State v. Duquette,

153 N.H. 315, 317, 893 A.2d 709, 711-12 (2006)).

See State v. Cossette, No. 2007-0476, slip op. at 1-3. 

Cossette also filed an application for parole with the New

Hampshire Adult Parole Board (“Parole Board”). A hearing was

held on September 20, 2007 and allegedly was terminated

prematurely based on the Parole Board’s assertion that Cossette

was ineligible for parole due to his non-participation in the

SOP. Cossette filed a motion for reconsideration on October 11,

2007, alleging that the Parole Board erred by requiring him to

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6

complete the SOP. His motion was denied. Cossette concedes that

he has not sought further appellate. He reasons that any appeal

to the superior court would be futile because that court denied

his petition for sentence suspension on identical grounds. He

adds that he is financially unable to pursue an appeal.

He now brings the instant petition, which I liberally

construe to allege the following grounds for federal habeas

corpus relief:

(1) Cossette’s conviction was obtained by the

prosecution’s failure to disclose evidence favorable to

the defendant, in violation of his Fourteenth Amendment

right to due process (Ground One);

(2) the trial court erred by failing to sever the

charges, in violation of Cossette’s Fourteenth

Amendment right to due process and his right to a fair

trial (Ground Two);

(3) insufficient evidence to support the jury’s

conclusion that Cossette had authority over the victim

and coerced her to submit (Ground Three);

(4) the trial court’s denial of a hearing on sentence

suspension, based on Cossette’s non-participation in

the SOP, violated his Fourteenth Amendment right to due

process (Ground Four);

 (5) the Parole Board’s refusal to conduct a full

hearing on Cossette’s parole application violated his

Fourteenth Amendment rights to due process and equal

protection (Ground Five); and

(6) the Parole Board’s denial of parole based on

Cossette’s non-participation in the SOP violated his

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Fourteenth Amendment right to equal protection (Ground

Six).

On April 2, 2008, I ordered Cossette to amend his petition

to demonstrate exhaustion of state remedies with regard to each

claim raised in his federal petition. I further ordered him to

demonstrate that each claim was timely filed. Because his

subsequent submission to this court (document no. 5) was

nonresponsive, he was ordered to further amend his petition to

demonstrate exhaustion of state remedies and the timeliness of

his claims. This amended petition follows.

Discussion

I. Claims Barred by the Statute of Limitations

Grounds One, Two and Three of the petition are barred from

consideration due to Cossette’s failure to file within the oneyear statutory limitations period.

The Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), enacted on April 24, 1996, requires that prisoners

file applications for writs of habeas corpus within one year from

the date on which the challenged judgment becomes final. 28

U.S.C. § 2244(d)(1)(A). This limitations period begins to accrue

from the date of the final disposition of any direct appeal to

the state court of last resort and the conclusion of certiorari

Case 1:08-cv-00021-JL Document 8 Filed 02/17/09 Page 7 of 18
8

review by the United States Supreme Court, or the running of the

ninety-day period in which to seek such review. See id. See

also Donovan v. Maine, 276 F.3d 87, 91 (1st Cir. 2002).

“Statutory exceptions exist where the state impeded relief,

new constitutional rights were created by the Supreme Court, or

newly discovered facts underpin the claim.” David v. Hall, 318

F.3d 343 (1st Cir. 2003)(citing Section 2244(d)(1)(B)-(D)). The

limitations period may be tolled during the pendency of a

properly filed application for state post-conviction relief or

other collateral review in state court, and may be equitably

tolled in appropriate circumstances. 28 U.S.C. § 2244(d)(2). 

See also Neverson v. Farquharson, 366 F.3d 32, 41 (1st Cir. 2004)

(holding “the one-year limitations period in § 2244(d)(1) is not

jurisdictional and, accordingly, can be subject to equitable

tolling in appropriate cases.”). The party seeking to invoke

equitable tolling bears the burden of establishing the basis of

it. See Lattimore v. Dubois, 311 F.3d 46, 55 (1st Cir. 2002). 

In the AEDPA context, equitable tolling is the exception rather

than the rule and is deemed justified only in extraordinary

circumstances. Id.

Here, Cossette challenges a conviction and/or sentence that

Case 1:08-cv-00021-JL Document 8 Filed 02/17/09 Page 8 of 18
9

became final in August 2004. Absent tolling, he had through 

November 2005 to file a federal habeas corpus petition. He filed

the instant federal petition on January 17, 2008, more than two

years after the AEDPA grace period had expired. Grounds One, Two

and Three, therefore, are time-barred unless Cossette can

demonstrate that an application for state post-conviction relief

or other collateral review tolled the limitations period, or that

he falls within a statutory exception to the one-year limitations

period.

 There is no indication that Cossette filed any application

for state post-conviction relief or other collateral review from

August 2004 through 2006. Although he filed additional state

court appeals beginning in May 2007, they were not filed during

the AEDPA limitations period therefore their pendency is not

relevant to the tolling provisions. Cossette has not alleged any

exception to the one-year limitations period. For the foregoing

reasons, I conclude that Grounds One, Two and Three are timebarred and, therefore, recommend that they be dismissed.

Case 1:08-cv-00021-JL Document 8 Filed 02/17/09 Page 9 of 18
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II. Noncognizable Claims

A. Fourteenth Amendment Due Process Claims

1. Denial of a Full Hearing on

Cossette’s Parole Application

Cossette alleges that the Parole Board violated his

Fourteenth Amendment right to due process by refusing to conduct

a full hearing on his parole application (Ground Five). 

Procedural due process requirements apply only to the

deprivation of interests in liberty and property. See Board of

Regents v. Roth, 408 U.S. 564, 569 (1972). There is no

constitutional right, or liberty interest, of a convicted person

to be conditionally released, on parole or otherwise, before the

expiration of a valid sentence. See Greenholtz v. Inmates of

Neb. Penal & Correctional Complex, 442 U.S. 1, 7 (1979). A right

to parole under the Fourteenth Amendment 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. Latessa, 72 F.3d

947, 954-55 (1st Cir. 1995); Booker v. Warden, No. 98-466-JD,

1999 WL 813893, at *2 (D.N.H. June 22, 1999). 

Because New Hampshire provides an opportunity for parole to

its prisoners as a privilege, not a right, see Knowles v. Warden,

140 N.H. 387, 389, 666 A.2d 972, 974-75 (1995), it has not

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11

created a liberty interest in the opportunity for parole, see

Reid v. Stanley, Civ. No. 04-cv-369-JD, 2006 WL 1875355, *4

(D.N.H. July 6, 2005). 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, even where he meets 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). 

Accordingly, Cossette has no right to parole under federal or New

Hampshire law.

With regard to procedural protections, however, the State of

New Hampshire has created a liberty interest in certain

procedures regarding an inmate’s consideration for parole. See

Horstkotte v. Warden, Civil No. 08-cv-138-JL, 2008 WL 2329325,

slip op. at *4 (D.N.H. June 5, 2008). With regard to a parole

hearing, the New Hampshire Code of Administrative Rules provides:

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 (emphasis added). The New

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Hampshire Code of Administrative Rules further provides: 

Members of the hearing panel shall commence the

hearing by questioning the inmate regarding

information in the inmate’s prison record. The

inmate shall then have the opportunity to respond

to these questions, and to make a statement to the

board.

N.H. Code Admin. R. Par 203.06 (emphasis added). The mandatory

language in the regulations creates a liberty interest only in

those parole procedures; it does not create a liberty interest in

actually being granted parole. See Horstkotte v. Warden, Civil

No. 08-cv-138-JL, 2008 WL 2329325, slip op. at *4 (D.N.H. June 5,

2008)(citing Greenholtz, 442 U.S. at 7; Sandin, 515 U.S. at 483-

84).

Where, as here, a state prisoner challenges the

constitutionality of parole procedures, rather than requesting

immediate or speedier release, Section 1983 provides an available

remedy. See Wilkinson v. Dotson, 544 U.S. 74, 82-83 (2005)

(clarifying that Section 1983 remains available to a state

prisoner for procedural challenges where success in the action

would not necessarily spell immediate or speedier release for the

prisoner). See also Redd v. Kirkland, No. C 06-07566 JF (PR),

2008 WL 2705577, at *2 (N.D. Cal. July 10, 2008)(“Where an inmate

challenges the constitutional validity of the state procedures

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used to deny parole eligibility or parole suitability, but seeks

injunctive relief in the form of an earlier eligibility review or

parole hearing rather than earlier release, the claim is

cognizable under § 1983”)(citing Wilkinson, 544 U.S. at 82). 

Here, Cossette’s due process claim does not directly request

immediate or speedier release from prison. Instead, he

challenges the denial of a full parole hearing. To the extent he

seeks a new parole hearing, he requests relief that will render

invalid the procedures used to deny his parole eligibility. See

Wilkinson, 544 U.S. at 82-83. Any favorable result with regard

to his due process challenge does not mean an immediate release

from confinement or a shorter stay in prison. At most, it means

a new parole hearing during which parole authorities may, in

their discretion, decline to shorten his prison term. Because

Cossette’s due process claim will not necessarily result in

speedier release and will not necessarily imply the invalidity of

his conviction or sentence, I conclude that his claim may not be

bought in a habeas action. For the foregoing reasons, I

recommend that Cossette’s due process claim arising from the

denial of a full hearing regarding his parole application be

dismissed (Ground Five).

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14

2. Denial of a Hearing on Sentence

Suspension on the Basis of Cossette’s 

Non-participation in the SOP

Cossette alleges that the trial court violated his

Fourteenth Amendment right to due process by denying him a

hearing on his petition for sentence suspension based on his nonparticipation in the SOP (Ground Four). He appears to allege

that the denial of the hearing on sentence suspension resulted in

the denial of an opportunity for early release.

As explained above, an inmate has no constitutional right or

liberty interest to be conditionally released, on parole or

otherwise, before the expiration of a valid sentence. See

Greenholtz, 442 U.S. at 7. A right to parole under the

Fourteenth Amendment Due Process Clause exists only if such right

is created by state law. See Sandin, 515 U.S. at 483-84. 

Under New Hampshire law, an inmate has no right to parole, see

Knowles, 140 N.H. at 389, 666 A.2d at 974-75, and no right to the

suspension of any remaining portion of his sentence, see

LeCouffe, 152 N.H. at 152, 872 A.2d 773. See also State v.

Cossette, No. 2007-0476, slip op. at 1-3. Furthermore, under New

Hampshire law, an inmate has no right to a hearing on sentence

suspension. See Duquette, 153 N.H. at 317, 893 A.2d at 711-12;

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State v. Roy, 138 N.H. 97, 635 A.2d 486 (1993) (affirming trial

court’s decision to deny defendant’s petition for sentence

suspension without a hearing and noting that nothing in RSA

651:20, pertinent superior court rules or prior case law mandates

such a hearing).

RSA(I) provides, in relevant part:

Notwithstanding any other provisions of law, except as

provided in subparagraphs (a), (b), and (c), the

sentence to imprisonment of any person may be suspended

by the sentencing court at the time of imposition of

the sentence or at any time thereafter in response to a

petition to suspend sentence . . .

N.H. Rev. Stat. Ann. § 651:20(I) (West 2007 & Supp. 2008)

(emphasis added). In addition, RSA 651:20(I)(a) provides: 

Any person sentenced to state prison for a minimum term

of six years or more shall not bring a petition to

suspend sentence until such person has served at least

4 years or 2/3 of his minimum sentence, whichever is

greater, and not more frequently than every 3 years

thereafter.

N.H. Rev. Stat. Ann. § 651:20(I)(a) (West 2007 & Supp. 2008). 

The statute further provides that “[a]s a condition of any

suspension of sentence, the court may include restitution to the

victim . . .; performance of uncompensated public service . . .;

and such other conditions as the court may determine.” N.H. Rev.

Stat. Ann. § 651:20(III) (West 2007 & Supp. 2008). The New

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16

Hampshire Supreme Court has held that “[i]n light of the

discretionary character of RSA 651:20 . . ., under the fourteenth

amendment, procedural due process is not applicable to sentence

suspension proceedings.” See Duquette, 153 N.H. at 317, 893 A.2d

at 711-12. 

Here, Cossette has not identified, under federal or New

Hampshire law, any right to the suspension of his sentence or any

right to a hearing on sentence suspension. I therefore conclude

that he has failed to alleged a cognizable due process claim for

purposes of federal habeas review. Accordingly, I recommend that

his due process claim alleging denial of a hearing on his

petition for sentence suspension be dismissed (Ground Four).

3. Denial of Parole Based on

Cossette’s Non-participation in the

SOP

Cossette alleges that the Parole Board violated his

Fourteenth Amendment right to equal protection by denying him

parole based on his non-participation in the SOP (Ground Six) and

by refusing to conduct a full hearing on his parole application

(Ground Five). By order of April 2, 2008 and October 22, 2008,

Cossette was ordered to demonstrate exhaustion of his claims. He

has failed to provide any pleadings, notices of appeal, briefs,

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17

or other state court documents indicating that he presented his

claims, including the federal nature of his claims, to the NHSC

for review. Accordingly, he has failed to allege sufficient

facts to demonstrate exhaustion of his federal claims. For the

foregoing reasons, I recommend dismissal of his equal protection

claims (Grounds Five and Six).

Conclusion

For the reasons stated above, I conclude that Cossette’s

claims pertaining to his conviction (Grounds One, Two and Three)

are time-barred and, therefore, recommend that they be dismissed. 

I further conclude that his remaining claims are either

noncognizable or unexhausted for purposes of federal habeas

review and, therefore, recommend that they be dismissed (Grounds

Four, Five and Six). 

If this recommendation is approved, the claims as identified

in this report and recommendation, will be considered for all

purposes to be the claims raised in the petition. If the

petitioner disagrees with the identification of the claims

herein, he must do so by objection filed within ten (10) days of

receipt of this report and recommendation, or he must properly

move to amend the petition. 

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Any further objection 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 28 U.S.C. § 636(b)(1);

see also Unauthorized Practice of Law Committee 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: February 17, 2009

cc: Jean Vanim-Botting, Esquire

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