UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Frank E. Dow

v. Civil No. 07-cv-355-JL

William L. Wrenn, Commissioner,

New Hampshire Department of

Corrections

REPORT AND RECOMMENDATION

Before the Court is Frank Dow’s petition for a writ of

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

2254. 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).

Standard of Review

Under this Court’s local rules, when an incarcerated

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

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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.

Background

On March 23, 1984, Frank Dow was sentenced to a term of

eighteen years to life in prison on homicide charges. While

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serving the minimum term of his sentence, Dow was convicted of

attempted escape and sentenced to an additional prison term of 1

1⁄2 - 3 years in prison, to be served consecutively to his eighteen

year minimum sentence. On June 21, 2001, Dow was paroled from

his homicide sentence to his consecutive sentence. 

On January 2, 2003, Dow appeared in front of the Adult

Parole Board (“APB”). The APB determined that, due to the length

of his incarceration, Dow need a gradual transition into the

community before he could be paroled. The APB denied Dow’s

request for parole until his institutional custody level was

reduced. Although Dow alleges that the prison refused to lower

his custody level, the APB reheard Dow’s parole request on April

3, 2003, and approved parole for Dow. 

Dow’s parole plan was sent to the Department of Corrections

(“DOC”) Probation and Parole Department. The Officer who

received the plan refused to approve it. The APB scheduled a

review hearing on May 27, 2003. On that date, the APB rescinded

it’s former parole approval and determined that Dow would need a

gradual integration into the community through a halfway house. 

The APB agreed to rehear the matter when Dow was in a halfway

house. Because the DOC does not ordinarily allow individuals

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convicted of escape into halfway houses, the APB sent a letter to

the DOC Commissioner in July of 2003, seeking an exception to the

general rule so that Dow could be admitted to a halfway house. 

The Commissioner denied the APB’s request on August 8, 2003,

citing a number of concerns, including: (1) that public sentiment

would be negatively impacted if there were a problem with Dow at

the halfway house, and (2) that, although Dow had served the

minimum sentence imposed by the state court, he had not served

the twenty-five year minimum sentence that the Department of

Corrections had recommended to the trial court prior to Dow’s

sentencing. On September 25, 2003, the APB held another hearing

and suggested that petitioner work with a counselor to deal with

issues of institutionalization and to learn basic life skills,

since he would not be transitioning to the community through a

halfway house. 

At Dow’s next parole hearing, held January 22, 2004, the APB

again denied parole as he had not achieved a reduction in custody

status within the prison. Dow alleges that prison officials

continued to refuse to reduce his custody level.

On April 4, 2004, Dow filed a petition for a writ of habeas

corpus in the state Superior Court, arguing that his parole had

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been illegally rescinded on May 27, 2003, as he had not violated

his parole. On May 27, 2004, Dow’s parole to a halfway house was

authorized by the DOC. As a result, Dow agreed to withdraw his

petition.

On October 4, 2004, Dow was moved to the Concord Halfway

House (“CHH”). Dow reports that while at the CHH, he found

employment quickly, attended nightly Alcoholics Anonymous

meetings, and had no problems in the house or in the community. 

Dow claims that he was treated differently than other

parolees residing at halfway houses because an uncle of his crime

victim, Tony Dodge, was a Probation and Parole Officer (“PPO”)

who was transferred to the Concord office at around the same time

Dow’s parole was approved. Dow states that prior to becoming a

PPO, Dodge was a corrections officer at the prison. On several

occasions, Dodge interfered with Dow’s visits from his wife,

resulting in a confrontation and ultimately the prison

segregating Dow from Dodge at all times. While Dodge did not

speak to Dow directly at the parole office, Dow claims that Dodge

was always present when Dow reported, and did things like stand

in Dow’s way, so that Dow had to walk around him every time he

went to report to his parole officer. Dow claimed that Dodge’s

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relationship to Dow’s victim negatively impacted the treatment he

received from Dodge, Dow’s own PPO, Ron Hebert, and other PPOs in

the Concord parole office. 

Dow alleges that while living in the supervised setting of

the CHH, he was required to pay halfway house supervision fees. 

Dow claims the ordinary practice of the Department of Corrections

is not to require halfway house residents to also report to a

parole officer and to pay parole supervision fees. Dow claims,

however, that he was required to both report to a parole officer

and to pay parole supervision fees in addition to his halfway

house supervision and fees. Dow complied with these additional

conditions.

On January 24, 2005, Dow was returned to the prison after

being falsely accused of selling heroin to another halfway house

resident named Julie. On March 17, 2005, at Dow’s parole

revocation hearing, Hebert asked for Dow’s parole to be revoked

and that Dow not be considered for reparole for five years. The

APB, however, found Julie’s accusations not to be credible and

returned Dow to parole status. Julie later told Dow that Hebert

had pressured her to falsely accuse Dow of selling her heroin.

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On March 21, 2005, Dow was returned to parole and sent to a

halfway house in Manchester. The APB had previously been

reluctant to send Dow to Manchester because Dow’s crime occurred

there. Dow’s Manchester PPO did not require Dow to report for

parole supervision or pay parole supervision fees while Dow was

at the halfway house. Dow was more restricted in his freedoms at

the Manchester halfway house than he had been in Concord, to

avoid negative interactions in the community where his crime had

been committed. Because he was not allowed to work in

Manchester, Dow arranged a job in another town. Dow’s PPO

approved the plan and approved Dow to move out of the halfway

house to his family’s home near his job. 

On April 22, 2005, the day Dow was to move home, he was

waiting for his sister to pick him up when he was told that,

instead of going home, he was being returned to the CHH. Dow was

not told why his return home had been cancelled. The CHH unit

manager repeatedly refused to discuss the issue with Dow.

On May 4, 2005, while walking to an Alcoholics Anonymous

meeting with another CHH resident, Dow was stopped by PPO Hebert

who was driving by. Hebert wanted to know why Dow was in

Concord, and why he had not yet reported to Hebert. Hebert

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stated that Dow was not allowed to be in the company of another

parolee outside of the house, AA meetings, or work, that he would

revoke Dow’s parole if it happened again, and that he would “make

sure that [Dow] was ‘found guilty next time.’” Dow reported to

Hebert the next day, and once again had to walk around Dodge who

had positioned himself in Dow’s way. When he reported, Dow was

told by Hebert that he had been lucky not to have had his parole

revoked at his March 2005 hearing. Dow returned to the halfway

house and tried unsuccessfully to discuss with the CHH unit

manager his problems with Hebert and Dodge. Dow then left the

halfway house to do his laundry and did not return. The next

day, a warrant for Dow’s arrest issued. Dow was arrested a month

later at his home address where he had intended to move on April

22, 2005.

Dow was appointed counsel for his parole revocation hearing,

which was scheduled on July 19, 2005. He met his attorney the

day before the hearing. Dow’s attorney advised him that he could

expect a revocation and reconsideration for parole in six months

if he plead true to the parole violation. Dow plead true at the

hearing. Hebert recommended that Dow receive a five year

setback, with a rehearing in two years if Dow was of good

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1A “setback” is the period of time a parole revokee must

serve at the prison prior to again being considered for parole.

2Dow reapplied for parole on November 29, 2007, but was

denied. Instead, the five year setback imposed on July 19, 2005

was reaffirmed.

3The claims as identified herein will be considered to be

the claims raised in the petition for all purposes. If Dow

objects to the identification of the claims here, he must do so

by objecting to this Report and Recommendation or by properly

moving to amend his petition.

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behavior.1 Dow’s attorney then requested that Dow receive a

three-year setback. The APB imposed a five-year setback and has

not, since then, granted any rehearing although Dow has been of

good behavior since his parole was revoked.2

Dow now brings this petition, raising five claims for

relief:3

1. Dow’s liberty interest in remaining free on parole was 

abridged by the Department of Corrections placing him 

in the custody of a parole office whose officers were 

biased against him, because one of the officers was a 

relative of his crime victim;

2. Dow was denied the effective assistance of counsel at 

his parole revocation hearing when his attorney 

recommended the APB impose a three-year setback after 

advising Dow he could expect only a six month setback 

upon his true plea to the parole violation;

3. Dow was denied a determinate sentence, in violation of 

his due process rights, because his five-year setback 

served to increase his minimum sentence without the 

express authorization of the sentencing court;

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4. The five-year setback Dow received for a technical 

violation of his parole was excessive, and contrary to 

the Eighth and Fourteenth Amendment’s guarantee against

cruel and unusual punishment, in that it was improperly

based on the nature of his underlying crime rather than

the nature of his parole violation;

5. Dow’s ability to be paroled was improperly obstructed 

by the DOC when it (I) refused to reduce his custody 

status while requiring him to attain a reduced custody 

status to obtain parole, (ii) suggested that, to obtain

parole, Dow avail himself of programming that did not 

exist, and (iii) continued to obstruct his 

rehabilitation after he was granted parole.

Discussion

I. Claims Based on Right to Parole

It is well-settled that a convicted person has no

constitutional right to be conditionally released 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 v. Fano, 427 U.S. 215,

224 (1976). Further, a convicted person does not have a

constitutional interest in being paroled to any particular

district. See Bagley v. Harvey, 718 F.2d 921, 924 (9th Cir.

1983); Alonzo v. Rozanski, 635 F. Supp. 496, 498 (N.D. Ill.

1986). A right to parole under the Due Process Clause exists

only if such right is created by state law. See Sandin v.

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Conner, 515 U.S. 472, 483-84 (1995); Hamm v. Latessa, 72 F.3d

947, 954-55 (1st Cir. 1995); Brooker v. Warden, N.H. State

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

1999). Here, Petitioner 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, N.H. State Prison, 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 the terms

of release for parole:

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.

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

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

pertaining to parole policy:

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 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 who

meets certain conditions or criteria. See Knowles, 140 N.H. at

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

Specifically, Dow has alleged that he was denied the right

to be paroled by the respondent: (1) conditioning his release on

compliance with the supervision of a particular parole office;

(2) imposing an excessive setback after a revocation hearing; (3)

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denying him parole eligibility before the expiration of his fiveyear setback; and (4) requiring Dow to attend a halfway house,

obtain a reduced custody level, and avail himself of counseling

prior to being considered for parole. 

Given that petitioner is a convicted prisoner, he has no

constitutionally protected or state-created liberty interest in

being granted parole. Petitioner also has no legitimate claim to

being paroled to a particular address or district. Nothing

petitioner alleges, even if true, would indicate that the Parole

Board abused its broad discretion by committing Dow to the

custody of the Concord parole officer, requiring him to live in a

particular halfway house or denying Petitioner parole for his

failure to provide an approved parole plan or to make his way to

a reduced custody level that would render him able to be paroled. 

Dow’s challenges to his setback are actually challenges to the

APB’s refusal to consider Dow for reparole after his parole was

revoked. Accordingly, those challenges rely for their viability

on the existence of a right to be granted parole. Accordingly,

Petitioner’s claims challenging the denial of parole, the five

year setback, and the imposed conditions for obtaining and 

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4To the extent that Dow alleges that individual members of

the Concord parole office violated his constitutional rights, his

claim arises, if at all, under 42 U.S.C. § 1983, which provides

individuals with a cause of action for violations of

constitutional rights by individuals acting under the color of

state law. 

14

maintaining parole, are not cognizable in a federal habeas

action. 

All of these complaints are challenges to the failure to

grant parole or the failure to grant parole without imposing

particular conditions. As these claims are not cognizable in a

federal habeas action, I recommend that claims 1, 3, 4 and 5, as

numbered above, be dismissed.4 

II. Ineffective Assistance of Counsel

Dow’s remaining claim alleges that his confinement pursuant

to his parole revocation is unlawful because he received

ineffective assistance of counsel at his parole revocation

hearing. In New Hampshire, an inmate facing parole revocation

has a right to have counsel represent him at his revocation

hearing. See N.H. Code Admin. R. Ann. Par 501.05(a)(5) (2007). 

Dow alleges that his attorney failed to represent his best

interests at the hearing, and actually advocated for a position

adverse to both his interests and the advice she gave him prior

to the hearing. Dow further alleges that he relied on her advice 

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in making the decision to plead true to the violation. Dow has

sufficiently alleged, for purposes of preliminary review, that he

was not effectively represented by counsel, and therefore states

a cognizable federal habeas claim challenging his confinement

pursuant to the revocation of his parole. 

III. Custody and Exhaustion

To be eligible for habeas relief, Dow must show that he is

both in custody and has exhausted all State court remedies, or

that he is excused from exhausting those remedies because of an

absence of available or effective State corrective processes. 

See 28 U.S.C. § 2254(a) & (b); see also Adelson v. DiPaolo, 131

F.3d 259, 261 (1st Cir. 1997) (citing authority to explain the

exhaustion principle). Dow has satisfied the first requirement,

as he is currently incarcerated. 

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 claims. See Lanigan v. Maloney, 853 F.2d 40, 42

(1st Cir. 1988) (“habeas corpus petitioner must have presented

the substance of his federal constitutional claim[s] to the state

appellate courts so that the state had the first chance to

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

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Connor, 404 U.S. 270, 275 (1971) (requiring petitioner to have

fairly presented the federal nature of his claims to the State

courts to give them the first opportunity to remedy the claimed

constitutional error). At present, Dow’s petition does not

demonstrate that he has satisfied the exhaustion requirement for

his ineffective assistance of counsel claim. Dow has, however,

provided notice to this Court that this issue, including the

federal nature of the claim, is currently pending before the

state Superior Court.

If the matter is not resolved in Dow’s favor in the Superior

Court, Dow must appeal that Court’s decision to the New Hampshire

Supreme Court, again raising the federal ineffective assistance

of counsel claim he seeks to present in this petition. Once the

New Hampshire Supreme Court has had an opportunity to rule on the

issue, and has made its decision, the issue will have been

exhausted in the State courts. At that time, if the matter was

not resolved favorably to Dow in the state courts, it will become

ripe for review as a federal habeas claim.

IV. Request for Stay

Dow has requested that this matter be stayed while he

exhausts his claims in the state courts. Because I find that

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exhaustion has not yet been demonstrated, but is currently being

pursued, I will grant the request for a stay in an Order issued

simultaneously with this Report and Recommendation. The Order

also will provide Dow with sufficient direction as to how to

proceed during the pendency of the stay in this matter.

Conclusion

For the foregoing reasons, I recommend that all of the

claims, except the claim alleging ineffective assistance of

counsel, be dismissed as not 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 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: February 12, 2008

cc: Frank E. Dow, pro se

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