1Named as respondents are William Wrenn, Commissioner of the

New Hampshire Department of Corrections (“NHDOC”), Richard M.

Gerry, Warden of the New Hampshire State Prison (“NHSP”), and

John Eckert, Executive Assistant of the New Hampshire Adult

Parole Board (“Parole Board”). As petitioner is in custody at

the NHSP, I construe the respondent to be the Warden of the NHSP. 

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

Anthony LaFauci

v. Civil No. 08-cv-77-PB

Executive Assistant, New Hampshire

Adult Parole Board, et al.1

REPORT AND RECOMMENDATION

Pro se petitioner Anthony LaFauci moves this court to lift

the stay of proceedings and review his amended habeas corpus

petition, filed pursuant to 28 U.S.C. § 2254, in which he

challenges his New Hampshire state court confinement (document

no. 12). 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

Case 1:08-cv-00077-PB Document 17 Filed 03/13/09 Page 1 of 15
2To the extent LaFauci moves to lift the stay of federal

proceedings, his motion is denied as moot. On January 14, 2009,

this court granted his motion to lift the stay of federal

proceedings (document no. 13).

2

Court for the District of New Hampshire Local Rule (“LR”)

4.3(d)(2)(authorizing the magistrate judge to preliminarily

review pro se pleadings).

LaFauci’s motion is granted to the extent he seeks review of

his amended habeas corpus petition.2 For the reasons stated

below, I recommend that Grounds One and Two of the petition be

dismissed for failure to state a claim upon which federal habeas

corpus relief may be granted. By separate order issued

simultaneously herewith, I order Ground Three to be served on the

respondent.

Standard of Review

In reviewing a pro se petition, this court must construe the

pleadings liberally, see Ayala Serrano v. Gonzalez, 909 F.2d 8,

15 (1st Cir. 1990) (following Estelle v. Gamble, 429 U.S. 97, 106

(1976)), treating all well-pleaded factual allegations as true

and drawing all reasonable inferences in the litigant’s favor,

see Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996) (explaining

that all “well-pleaded factual averments,” not bald assertions,

Case 1:08-cv-00077-PB Document 17 Filed 03/13/09 Page 2 of 15
3In this action, LaFauci requests “the return of 49

month[s]” to his maximum release date of January 9, 2009. He

claims that pursuant to a settlement agreement dated April 24,

2000, the NHDOC agreed to return 100 per cent of his “lost good

time.” See LaFauci v. Commissioner, New Hampshire Dep’t of

Corrections, No. Civ. 99-597-PB, 2005 WL 419691 (D.N.H. Feb. 23,

2005). 

3

must be accepted as true). This review ensures that pro se

pleadings are given fair and meaningful consideration. See

Eveland v. Director of CIA, 843 F.2d 46, 49 (1st Cir. 1988).

Federal Proceedings

LaFauci filed an original petition with this court on

February 27, 2008, which I liberally construed to allege the

following grounds for federal habeas corpus relief:

(1) the Parole Board erred by conditioning LaFauci’s

parole on his participation in a sexual offender

program, in violation of his Fourteenth Amendment right

to due process (Ground One);

(2) the Parole Board erred by delaying and/or denying

LaFauci parole based on his non-participation in a

sexual offender program, in violation of his Fourteenth

Amendment right to due process (Ground Two); and

(3) the Parole Board erred by failing to credit 

LaFauci lost good time, thereby further delaying his

release date, in violation of his Fourteenth Amendment

right to due process (Ground Three).3

On April 17, 2008, the federal proceedings were stayed and

the petition was held in abeyance, thereby affording LaFauci an

Case 1:08-cv-00077-PB Document 17 Filed 03/13/09 Page 3 of 15
4

opportunity to amend his petition to demonstrate exhaustion of

state remedies and the timeliness of his claims. On January 14,

2009, this court granted his motion to lift the stay of

proceedings (document no. 13). LaFauci now seeks review of his

amended petition (document no. 12) and provides the following

factual background in support of his petition. The state court

record provided is incomplete.

Factual Background

LaFauci was convicted in 1995 by the New Hampshire Superior

Court (Rockingham County) of six counts of sexual assault and was

sentenced to three 31⁄2 - 7 year terms of imprisonment. The NHDOC

identified his sentences as follows:

Mr. LaFauci is currently serving the first of three (3)

consecutive 3 1⁄2 to 7 years sentences for Felonious

Sexual Assault. Those sentences are: 94-S-802; 94-S804 (concurrent with 94-S-805); and 94-S-806. He will

max out on the first sentence on January 9, 2002. Mr.

LaFauci also received concurrent sentences for

Felonious Sexual Assault and Indecent Exposure (94-S970; 94-S-808; and 94-S-1903). The sexual offender

program (SOP) requirement is part of the last sentence,

94-S-806.

See Letter from Richard M. Gerry, Acting Warden, NHSP, to Hon.

Kenneth R. McHugh, Rockingham Superior Court (dated December 19,

2000). LaFauci maintains that he was to be paroled on July 11,

1998 to the first consecutive sentence, 94-S-804 (which ran

Case 1:08-cv-00077-PB Document 17 Filed 03/13/09 Page 4 of 15
5

concurrently with 94-S-805) and then paroled on January 9, 2002

to the last consecutive sentence, 94-S-806 (the only sentence

that required him to complete a sexual offender program as a

condition of parole). 

According to LaFauci, the Parole Board erred by

misinterpreting the superior court’s mittimus and by wrongly

concluding that, as part of each sentence, he was ordered to

complete a sexual offender program prior to being considered for

parole. He alleges that Eckert, Executive Assistant of the

Parole Board, continued his parole date from July 11, 1998 to

October 15, 1998 on the basis that he had not completed a sexual

offender program. He further alleges that the Parole Board

failed to credit him with lost good time, thereby further

delaying his release date. By wrongly conditioning LaFauci’s

parole on completion of a sexual offender program and by failing

to credit him with lost good time, Eckert and the Parole Board

allegedly delayed his release date by a total of forty-nine

months.

LaFauci filed a motion to reduce sentence, which apparently

was denied by the New Hampshire Superior Court (Rockingham

County) on December 21, 1998. The court denied his motion for

Case 1:08-cv-00077-PB Document 17 Filed 03/13/09 Page 5 of 15
6

reconsideration on July 11, 2000 and noted that his maximum

release date was January 9, 2002. LaFauci then filed a motion to

correct mittimus with the superior court in which he challenged

his confinement beyond the release date of January 9, 2002. The

court denied his motion on February 22, 2001 and reasoned:

On March 17, 1995, the defendant was sentenced on six

separate indictments of felonious sexual assault. He

received three consecutive sentences of three and a

half to seven year terms at the New Hampshire State

Prison. Thus, the defendant’s total minimum term was

ten and a half years and his total maximum term was

twenty-one years. His last consecutive sentence

contained the requirement that he complete the Sexual

Offender Program before being paroled.

What the court envisioned would happen would be

that Mr. LaFauci would serve his two consecutive

minimum sentences for a total of seven years and then

he would be eligible for the completion of the Sexual

Offender Program as part of his last consecutive three

and a half minimum sentence. Thus he could have been

enrolled in the Program in or about January 2002. 

However, instead of being paroled from 94-S-802 into

his first consecutive sentence in 1998 and then being

paroled from his first consecutive sentence into his

second consecutive sentence in January of 2002, Mr.

LaFauci is still serving his first sentence.

The reasons for the delay in not being paroled

from the first sentence into the first consecutive

sentence is not because of any confusion about the

Court’s sentences or because of the Department of

Corrections handling of the defendant’s cases. The

reason for that delay is the defendant’s disruptive

behavior and protective custody issues while being

confined.

Case 1:08-cv-00077-PB Document 17 Filed 03/13/09 Page 6 of 15
4LaFauci allegedly participated in a sexual offender program

at MCI Norfolk from October 1998 through March 1999 and

successfully completed the program. In addition, he allegedly

completed a sexual offender program while incarcerated in a

correctional facility in Connecticut.

7

State v. LaFauci, No. 94-S-802, 804, 805, 806, 807 and 808, slip

op. at 2-3 (N.H. Feb. 22, 2001). The court added that the

maximum release date of January 9, 2002 pertained only to the

sentence imposed under 94-S-802. Id. at 1-2. The record is

silent as to whether LaFauci sought further appellate review.

LaFauci alleges that on May 19, 2005, the Parole Board

notified him that he would be paroled on December 27, 2005,

pending confirmation that he completed a sexual offender program

at the Massachusetts Correctional Institution in Norfolk,

Massachusetts (“MCI Norfolk”).4 He further alleges that on April

13, 2006, the Parole Board “retroactively paroled [him] to

December 27, 2005.”

LaFauci filed an original habeas corpus petition with the

NHSC on August 16, 2007. Construed liberally, the petition

raised due process claims arising from the Parole Board’s

conditioning of his parole on his participation in a sexual

offender program and the Parole Board’s failure to credit him

with lost good time. On October 1, 2007, the NHSC dismissed the

Case 1:08-cv-00077-PB Document 17 Filed 03/13/09 Page 7 of 15
5LaFauci filed several responsive motions and a motion

entitled “Motion to Reduce the Minimum Term in 94-S-806 and Order

the New Hampshire Adult Parole Board to Correct 3 1⁄2 Years Delay

Retroactively”; his motions raised claims similar to those raised

in federal habeas corpus petition.

8

petition without prejudice to LaFauci seeking relief from the

superior court in the first instance. On October 22, 2007,

LaFauci filed a habeas corpus petition with the New Hampshire

Superior Court (Merrimack County) in which he raised claims

similar to those presented to the NHSC. The petition was

transferred to the New Hampshire Superior Court (Rockingham

County); the record is silent as to the disposition of the

petition. LaFauci also raised similar claims in various motions

filed with the New Hampshire Superior Court (Rockingham County)

from January 2008 through April 2008.5 The record is silent as

to the superior court’s disposition of the motions and whether

LaFauci sought further appellate review. 

LaFauci filed a habeas corpus petition with the New

Hampshire Superior Court (Rockingham County) which was denied on

July 1, 2008. On August 12, 2008, he filed an appeal with the

NHSC in which he raised due process claims arising from the

Parole Board’s conditioning of his parole on his participation in

a sexual offender program and the Parole Board’s failure to

Case 1:08-cv-00077-PB Document 17 Filed 03/13/09 Page 8 of 15
9

credit him with lost good time. On August 15, 2008, the NHSC

deferred ruling on the appeal pending the issuance of a decision

by the superior court with regard to a pending post-trial motion

filed by LaFauci.

LaFauci alleges that on October 27, 2008, the NHSC declined

his appeal. He further claims that the NHSC “denied his motion

to file appeal decisions of both superior courts” with regard to

his petition for a writ of habeas corpus. Thus, he appears to

allege that the NHSC declined the appeal of his state court

habeas petition, in which he raised claims similar to those

raised in his federal petition. LaFauci has not provided this

court with a copy of the NHSC’s October 27, 2008 order.

Discussion

I. Noncognizable Claims

In his federal petition, LaFauci alleges that the Parole

Board violated his Fourteenth Amendment right to due process by

conditioning his parole on his participation in a sexual offender

program (Ground One) and by delaying and/or denying him parole

based on his non-participation in a sexual offender program

(Ground Two).

Case 1:08-cv-00077-PB Document 17 Filed 03/13/09 Page 9 of 15
10

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).

Both the New Hampshire parole statute and the Parole Board’s 

regulations plainly provide that the Parole Board has discretion

in deciding whether to grant or deny parole to an eligible

inmate. See N.H. Rev. Stat. Ann. 651-A:6 (2007) (providing that

the Parole Board “may” grant parole to eligible inmates); N.H.

Code Admin. R. Ann. Par-301.02 (2007) (providing that parole

shall be considered a privilege). 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,

Case 1:08-cv-00077-PB Document 17 Filed 03/13/09 Page 10 of 15
11

974-75 (1995), it has not created a liberty interest in the

opportunity for parole, see Reid v. Stanley, Civ. No. 04-cv-369-

JD, 2006 WL 1875355, at *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, State Prison, 140 N.H. 395,

398, 666 A.2d 967, 969 (1995). 

Here, LaFauci alleges that the Parole Board violated his

Fourteenth Amendment right to due process by conditioning his

parole on his participation in a sexual offender program (Ground

One) and by delaying and/or denying him parole based on his nonparticipation in a sexual offender program (Ground Two). The

claims raised in Grounds One and Two of the petition are actually

challenges to the Parole Board’s refusal to consider LaFauci for

parole. Thus, his challenges rely of the presumed existence of a

right to parole. Because LaFauci is a convicted prisoner, he has

no constitutionally protected or state-created liberty interest

in being granted parole. For the foregoing reasons, I recommend

that Grounds One and Two of the petition be dismissed for failure

Case 1:08-cv-00077-PB Document 17 Filed 03/13/09 Page 11 of 15
12

to state a claim upon which federal habeas corpus relief may be

granted.

II. Exhausted Claim

To be eligible for habeas relief with regard to his

remaining claim, Ground Three, LaFauci must show that he is in

custody and has exhausted all state court remedies (or that he

falls within a narrow category of cases in which exhaustion is

not required, such as the absence of an available or effective

state corrective process). See 28 U.S.C. § 2254(a) & (b); see

also Duncan v. Henry, 513 U.S. 364, 365 (1995). He satisfies the

first requirement as he is currently incarcerated at the NHSP and

thus is in custody. For the reasons stated below, I conclude

that he also satisfies the second requirement with regard to

Ground Three of the petition. 

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 federal constitutional claims. See Lanigan v.

Maloney, 853 F.2d 40, 42 (1st Cir. 1988), cert. denied, 488 U.S.

1007 (1989) (“habeas corpus petitioner must have presented the

substance of his federal constitutional claim to the state

appellate courts so that the state had the first chance to

Case 1:08-cv-00077-PB Document 17 Filed 03/13/09 Page 12 of 15
13

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

Reese, 541 U.S. 27, 29 (2004) (citing Duncan, 513 U.S. at 365-66

(requiring petitioner to “fairly present” his claim in the

appropriate state courts, including a state supreme court with

powers of discretionary review, thereby alerting that court to

the federal nature of the claim)). “[T]he exhaustion principle

holds, in general, that a federal court will not entertain an

application for habeas relief unless the petitioner first has

fully exhausted his state remedies in respect to each and every

claim contained within the application.” Adelson v. DiPaola, 131

F.3d 259, 261 (1st Cir. 1997). 

Construed liberally, Ground Three of the petition alleges

that the Parole Board erred by failing to credit LaFauci with

lost good time, thereby further delaying his release date, in

violation of his Fourteenth Amendment right to due process. 

LaFauci alleges that he presented this claim on appeal to the

NHSC. He further alleges that on October 27, 2008, the NHSC

declined his appeal. While LaFauci has not provided this court

with a copy of the relevant NHSC order, I accept his allegations

as true and therefore conclude that he has demonstrated

exhaustion of Ground Three for purposes of federal habeas review.

Case 1:08-cv-00077-PB Document 17 Filed 03/13/09 Page 13 of 15
14

Conclusion

LaFauci’s motion (document no. 12) is granted to the extent

he seeks review of his amended habeas corpus petition. For the

reasons stated above, I recommend that Grounds One and Two of the

petition be dismissed for failure to state a claim upon which

federal habeas corpus relief may be granted. By separate order

issued simultaneously herewith, I order Ground Three to be served

on the respondent.

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. 

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);

Case 1:08-cv-00077-PB Document 17 Filed 03/13/09 Page 14 of 15
15

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: March 13, 2009

cc: Anthony LaFauci, pro se

Case 1:08-cv-00077-PB Document 17 Filed 03/13/09 Page 15 of 15