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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Chad Evans, 

Petitioner

v. No. _________

Richard M. Gerry,

Warden, New Hampshire State Prison,

Respondent

PETITION FOR WRIT OF HABEAS CORPUS

PURSUANT TO 28 U.S.C. §2254

Chad Evans was sentenced by the judge who presided over his

jury trial to serve 28 years to life in prison for second degree

murder and assault. Based on a state statute that was not in

force at the time he committed the conduct alleged, was indicted,

or was brought to trial, the State sought, and received from a

panel of superior court judges who reviewed the trial judge’s

sentence, the Sentence Review Division (“the Division”), a

consecutive term of 15 years, thus raising the minimum term of

sentence the trial judge imposed from 28 to 43 years. The New

Hampshire Supreme Court affirmed the Division’s increase of

Evans’s sentence, finding no violation of the state and federal

constitutional prohibitions against ex post facto laws. 

Mr. Evans contends that the decision of the New Hampshire

Supreme Court was either contrary to, or an unreasonable

application of, clearly established federal law. He therefore

seeks a writ of habeas corpus, and respectfully requests that

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this Honorable Court vacate the Division’s 15-year increase of

the trial court’s sentence.

Parties 

1. Chad Evans is an inmate at the New Hampshire State

Prison in Concord, New Hampshire. His address is P.O. Box 14,

Concord, N.H. 03302-0014.

2. Richard Gerry is the Warden of the New Hampshire State

Prison in Concord, New Hampshire. His mailing address is also

P.O. Box 14, Concord, N.H. 03302-0014.

Jurisdiction, Venue and Statute of Limitations

3. This Court has jurisdiction. 28 U.S.C. §2241(a). Venue

lies in this Court. 28 U.S.C. §2241(a) & (d). The petition is

timely filed. 28 U.S.C. §2244(d)(1)(A).

Representation by Counsel

4. At trial, Evans was represented by Mark Sisti and Alan 

Cronheim, Sisti Law Offices, 387 Dover Road, Chichester, N.H.

03258.

5. On appeal, Evans was represented by David M. Rothstein,

Appellate Defender Program, Franklin Pierce Law Center, Two White

Street, Concord, N.H. 03301.

Procedural History and Facts Necessary to Decide Petition

6. In 2000, Amanda Bortner and Chad Evans lived together in

Rochester, New Hampshire. Amanda had a daughter named Kassidy. 

Tr. Trans., Vol II at 66, 69. Kassidy died on November 9, 2000,

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while under the care of Jefferey Marshall at his home in Kittery,

Maine. She was twenty-one months old. Tr. Trans. Vol II at 27,

63, 138. Marshall was babysitting Kassidy that day, and had done

so the previous day as well. 

7. The State contended that Evans inflicted the injuries

that killed Kassidy, as well as prior physical abuse that 

resulted in bruises and fractures. A Strafford County grand jury

indicted Evans with second degree murder, and five counts of

second degree assault. State v. Evans, 150 N.H. 416, 417, 839

A.2d 9, 11 (2003). In addition, the State brought against Evans

a misdemeanor count of simple assault, involving Bortner, and a

misdemeanor count of endangering the welfare of a child. 

Petition 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). 

8. Evans’s jury trial on all charges commenced on December

4, 2001. On December 21, 2001, after roughly 10 days of trial

and three days of deliberations, the jury convicted Evans of all

charges. Petition of Evans, 154 N.H. at 144, 908 A.2d at 799. On

April 16, 2002, the trial judge (Nadeau, J.) sentenced Evans to

serve 28 years to life in prison on the second degree murder

charge, and suspended sentences on the other charges. Id. 

9. Evans appealed his convictions on the merits to the New

Hampshire Supreme Court, which affirmed. Evans, 150 N.H. 416,

839 A.2d 9. 

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10. Meanwhile, the State appealed Evans’s sentence to the 

Division pursuant to N.H. R.S.A. 651:58, I, which became

effective on January 1, 2002, eleven days after Evans was

convicted. Petition of Evans, 154 N.H. at 144, 908 A.2d at 799. 

This statute allowed the State to an seek enhancement of the

trial judge’s sentence before the Division. Petition of the

State of New Hampshire (Sentence Review Division), 150 N.H. 296,

297, 837 A.2d 291, 292 (2003)(“Petition of the State”). Before

January 1, 2002, only the defendant could appeal to the Division

the sentence imposed by the trial court judge. Thus, before the

amendment, the State could only seek to enhance the defendant’s

sentence if the defendant himself initiated the sentence review

process. 

11. The Division dismissed the State’s application for

sentence review, ruling that because Evans was not informed at

his sentencing hearing that the State could appeal and seek an

increased sentence, such review would violate his due process

rights. Petition of Evans, 154 N.H. at 144, 908 A.2d at 799. 

The State, by petition for a writ of certiorari, appealed the

Division’s ruling, and the New Hampshire Supreme Court ruled that

the Division lacked the jurisdiction to consider Evans’s due

process claim. Id. As a result, the State’s request for

sentence review under N.H. R.S.A. 658:58, I was reinstated. 

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12. On remand, Evans unsuccessfully sought legal and

equitable relief that would have barred the Division from

considering the State’s request to review Evans’s sentence. Id. 

By order dated April 26, 2005, the Division increased Evans’s

sentence by total of fifteen years, thus raising the minimum term

of his sentence from 28 to 43 years. Id. 

13. Evans appealed the Division’s order to the New

Hampshire Supreme Court, on grounds that its increase of his

sentence under R.S.A. 651:58, I violated his rights under the

due process, double jeopardy, and ex post facto clauses of the

state and federal constitutions. Id. The New Hampshire Supreme

Court affirmed the Division’s order. Id. at 144, 908 A.2d at

799.

14. Subsequently, Evans filed a timely petition for writ of

certiorari in the United States Supreme Court, pursuant to 28

U.S.C. §1257(a), in which he raised only the federal

constitutional ex post facto claim. The Court denied the

petition. Evans v. New Hampshire, No. 06-9176, __ U.S. __, 127

S.Ct. 1888, 167 L.Ed.2d 374 (March 26, 2007). 

15. Aside from the petition denied by the Supreme Court

last March, Evans has filed no other petitions or writs in the

federal courts with regard to the federal ex post facto claim he

now pursues.

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The Division’s Increase of Evans’s Sentence Violates

the Ex Post Facto Clause

16. Article I, Section 10 of the United States Constitution 

provides, in pertinent part, that “[n]o state shall . . . pass

any ex post facto law. . . .” The Division’s increase of Evans’s

sentence, based on a law that did not exist at the time he

committed the underlying offenses, violated the ex post facto

clause. This Court should grant Evans’s petition for a writ of

habeas corpus, and vacate the Division’s order.

17. “[T]wo critical elements must be present for a criminal

or penal law to be ex post facto: it must be retrospective, that

is, it must apply to events occurring before its enactment, and

it must disadvantage the offender affected by it.” Weaver v.

Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1985). 

The “disadvantage” occasioned by the new law must “alter[ ] the 

definition of criminal conduct or increase[ ] the penalty by

which a crime is punishable.” California Department of

Corrections v. Morales, 514 U.S. 499, 503 n.3, 115 S.Ct. 1597,

131 L.Ed.2d 588 (1995). Moreover, the law, to violate the ex

post facto provision, must pose more than a “speculative,

attenuated risk of affecting a prisoner’s actual term of

confinement. . . .”). Id. at 508-09.

18. For example, in Lynce v. Mathis, 519 U.S. 433, 117

S.Ct. 891, 137 L.Ed.2d 63 (1997), the Court deemed ex post facto

a statute that eliminated gain time credits awarded to inmates

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convicted of murder. “[T]he . . . statute did more than simply

remove a mechanism that created an opportunity for early release

of a class of prisoners whose release was unlikely; rather, it

made ineligible for early release a class of persons who were

previously eligible – including some, like petitioner, who had

already been released.” Id. at 446 (emphasis supplied by Lynce

Court).

19. In Garner v. Jones, 529 U.S. 244, 120 S.Ct. 1362, 146

L.Ed.2d 236 (2000), a new parole regulation established that

inmates serving life sentences, who had been denied parole, could

not apply for reconsideration for eight years. The law in effect

at the time Jones began serving his sentence allowed him to seek

reconsideration every three years. Id. at 247. The Court

remanded Jones’s ex post facto claim to determine whether the

change “created a significant risk of increasing his punishment.” 

Id. at 255.

20. Federal courts have construed Morales to mean that if

the new law has a punitive effect as applied to the inmate, its

retrospective application violates the ex post facto clause. 

See, e.g., Richardson v. Pennsylvania Baord of Parole, 423 F.3d

282, 290 (3 Cir. 2005)(retroactive application of change in rd

parole regulations may be unconstitutional if practical effect

creates significant risk of increased punishment); Glascoe v.

Bezy, 421 F.3d 543, 548 (7 Cir. 2005)(“[petitioner] must show th

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that as applied to his own sentence the new law created a

significant risk of increasing his punishment.”); 16A Fed. Proc.,

L.Ed. §41:212 (2007)(“to be eligible for habeas corpus relief

based on a violation of the Ex Post Facto clause, a petitioner

must show both a retroactive change in law or policy and that

this change caused [the] individual disadvantage by creating a

significant risk of increasing his punishment.”). 

21. In other words, a law that makes an inmate eligible for

parole every five years instead of yearly may be

unconstitutionally ex post facto as applied to a non-violent

offender who had a compelling case for earlier parole, but not as

applied to a convicted serial killer who has no practical chance

of ever being paroled. Similarly, if the effect of the change is

purely speculative, there can be no ex post facto claim. See,

e.g., Snodgrass v. Robinson, – F.3d –, 2008 WL 108789, at 3 (8th

Cir. 2008)(holding ex post facto clause inapplicable to changes

in statute governing commutation of sentence). 

22. In Petition of Evans, the New Hampshire Supreme Court

held that N.H. R.S.A. 651:58, I was not ex post facto as applied

to Evans. In so ruling, the Court compared the change in this

statute to the change Congress made to 18 U.S.C. §3742(e) in

2003. 154 N.H. at 149, 908 A.2d at 802. The federal statute

governs the standard to be applied when an appellate court

reviews a district court’s decision to depart from sentencing

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guidelines. Before 2003, the appellate court afforded

“substantial deference” to the district court’s decision. Id. 

After 2003, the standard of appellate review was de novo. Id. 

In the face of ex post facto challenges to the application of the

new standard, federal circuit courts found no violation because

the amendment effected no substantive change. Id. at 149-50, 908

A.2d at 799-800 (citing cases); see, e.g., United States v.

Mallon, 345 F.3d 943, 946 (7 Cir. 2002)(“Procedural innovations th

that don’t tinker with substance as a side effect are compatible

with the ex post facto clause.”)(citations omitted). The

Petition of Evans Court directly analogized the sentence review

statute to the federal statute, and determined that “under either

statute, a defendant was subject to the same potential punishment

at both his original sentencing hearing and before the reviewing

tribunal. . . . In a manner akin to the former section 3742(e),

RSA 651:58 merely changed who made the final sentencing decision,

but not the legal standards for that decision.” 154 N.H. at 151,

908 A.2d at 804. (Emphasis added by Court).

23. Evans does not question the validity of Mallon. See

United States v. Phillips, 356 F.3d 1086, 1099 (9 Cir. th

2004)(“Procedural changes such as the PROTECT Act’s new standard

of review do not fall under the purview of the Ex Post Facto

Clause.”); United States v. Riley, 376 F.3d 1160, 1165 n. 3 (D.C

Cir. 2004)(collecting cases that follow Mallon). He does

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question the applicability of the holding to this case. In

Mallon, the statutory amendment impaired no substantive right. 

Id. at 1165 (holding no constitutional violation where change

does not take away a substantive right). A different result

attaches if an amendment purports to revoke or restrict the

availability of a downward sentencing departure, or otherwise

“`works to the defendant’s detriment.’” United States v. Smith,

311 F.Supp.2d 801, 806 (E.D. Wis. 2004)(quoting United States v.

Seacott, 15 F.3d 1380, 1386 (7 Cir. 1994)). th

24. A new law that creates a mechanism for the State to

increase a sentence, which did not exist at the time of the

commission of the underlying criminal conduct, like the statutes

discussed in Smith and Garner, cannot be afforded retroactive

effect. Before Evans was convicted, the State could not obtain

any appellate review of his sentence before the Division. It was

not that the right existed, but the standard of review was

different – such review was impossible. Thus, also impossible

was the prospect that if the defendant was convicted of murder,

and received a 28-year sentence from the trial judge, the State

could, as it did here, avail itself of a statutory mechanism to

increase the defendant’s sentence by 15 years. 

25. Under these circumstances, a statute that did not exist

when Evans was convicted exposed him to a “significant risk of

increased punishment.” It visited upon Evans the prospect of

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Indeed, in 2007, the legislature did increase the penalty for the 1

second degree murder of a child to a minimum mandatory sentence of 35 years to

life. N.H. R.S.A. 651:6, I(p) & V. Had Evans been brought to trial in 2007,

he would not be subject to this new provision. The State, however, was able

to achieve the same effect by virtue of the sentence review provision that,

likewise, did not exist when Evans was convicted. 

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serving a greater sentence than he would have faced had he been

sentenced before the law took effect, just as surely as if the

legislature had changed the possible punishment for murder or

assault.1

26. The ruling of the New Hampshire Supreme Court was both

contrary to, and an unreasonable application of, United States

Supreme Court precedent. See 28 U.S.C. §2254(d)(1). “Under the

“contrary to” clause [of AEDPA], a federal habeas court may grant

the writ if the state court arrives at a conclusion opposite to

that reached by this Court on a question of law or if the state

court decides the case differently than this Court has on a set

of materially indistinguishable facts.” Williams v. Taylor, 529

U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The

inquiry is “whether a Supreme Court rule – by virtue of . . . its

distillation of general federal law precepts into a channeled

mode of analysis specifically intended for application to variant

factual situations – can fairly be said to require a particular

result in a particular case.” Williams v. Rahim, 230 F.3d 421,

425 (1 Cir. 2000). st

27. While Evans is not aware of a Supreme Court case

decided on a “set of materially indistinguishable facts,” the

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Court, in Morales, Lynce and Garner, has established a broader

“mode of analysis” of ex post facto claims, the application of

which compels a different result than that reached by the state

court here. The new sentence review statute is fairly analogous

to a parole regulation, which did not exist at the time of

sentencing, but which created the “significant risk” that the

inmate would serve a longer sentence. Here, the State’s ability

to get sentence review did not exist at the time Evans was

convicted, and the application of the new statute did more than

create a “risk” of increased incarceration – Evans actually got

an additional 15 years in prison. Under these circumstances, the

state court’s resolution is contrary to relevant Supreme Court

jurisprudence.

28. “Under the `unreasonable application’ clause [of

AEDPA], a federal habeas court may grant the writ if the state

court identifies the correct governing legal principle from the

Court’s decisions but unreasonably applies that principle to the

facts of the prisoner’s case.” Williams, 529 U.S. at 413, 120

S.Ct. 1495, 146 L.Ed.2d 389. “We agree with the Second Circuit

that some increment of incorrectness beyond error is required . .

. . The increment need not be great, but it must be great enough

to make the decision unreasonable in the independent and

objective judgment of the federal court. . . .” McCambridge v.

Hall, 303 F.3d 24, 36 (1 Cir. 2002)(quotation omitted). st

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29. Here, the state court unreasonably applied the ex post

facto rule to Evans’s case. The court’s conclusion that the new

statute did no more than change the tribunal that imposed the

final sentence is an unreasonable application of Mallon, which in

turn had relied on Supreme Court cases explaining the distinction

between substantive and procedural amendments.

30. Because the New Hampshire Supreme Court’s ruling

violated Evans’s federal constitutional rights in a manner that

was contrary to, and an unreasonable application of, Supreme

Court precedent, this Court should grant his petition for a writ

of habeas corpus, and vacate the Division’s 15-year increase of

Evans’s sentence.

WHEREFORE, Mr. Evans respectfully requests that this

Honorable Court grant his petition for writ of habeas corpus, and

vacate the Division’s 15-year increase of the trial judge’s

sentence. 

 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

 

 

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Petition has

been emailed to:

1) N. William Delker, Senior Assistant Attorney General at

will.delker@doj.nh.gov

and

2) Richard Gerry, Warden, NH State Prison at

dgerry@nhdoc.state.nh.us 

 

this 20 day of March, 2008. th

/s/ David M. Rothstein 

 David M. Rothstein

DATED: March 20, 2008

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