UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Darren Starr,

Petitioner

v. Civil No. 07-cv-311-SM

Opinion No. 2008 DNH 132

Larry Blaisdell, Warden,

Northern NH Correctional

Facility,

Respondent

O R D E R

Darren Starr, an inmate at the Northern New Hampshire

Correctional Facility, petitions for a writ of habeas corpus. 28

U.S.C. § 2254. He says he is being held in violation of his

right to due process because he was sentenced in accordance with

N.H. REV. STAT. ANN. (“RSA”) § 651:2, II-e, New Hampshire’s truthin-sentencing law, and that statute was enacted without notice to

the public. Before the court is respondent’s motion for summary

judgment. Petitioner objects. For the reasons given,

respondent’s motion is granted.

Background

On November 17, 1987, petitioner was convicted of seconddegree murder. He was “sentenced to a term of twenty-eight years

to life imprisonment in accordance with RSA 651:2, II-e.” Starr

v. Governor, 154 N.H. 174, 175 (2006). 

Case 1:07-cv-00311-SM Document 14 Filed 08/05/08 Page 1 of 12
2

RSA 651:2, II-e, was a product of the 1981-82 special

session of the New Hampshire legislature. See id. The

legislature was called into session by a resolution of the

Governor and Council (“G&C resolution”) that enumerated various

matters requiring legislative attention. Truth in sentencing was

not among the matters enumerated.

The special session convened on November 17, 1981. Among

the bills introduced that day was HB 20, titled an act “relative

to minimum mandatory sentences for driving while intoxicated.” 

N.H.H.R. JOUR. 19 (1981-82 Spec. Sess.) (hereinafter “H. JOUR.”).

On December 30, 1981, Representative Carswell, one of the authors

of HB 20, filed an amendment to the bill. The amendment renamed

the bill an act “relative to minimum mandatory sentences for

driving while intoxicated and various other crimes” (Pet., Appx.

at 45), and it included a provision requiring that persons

convicted of certain crimes serve their full statutory minimum

sentences (see id.). The House Judiciary Committee held a

hearing on HB 20, including the truth-in-sentencing amendment, on

January 5, 1982. (See id. at 54-55.) After consideration by the

House, see H. JOUR. 25, 35-37, 39, the Senate, see H. JOUR. 77;

N.H.S. JOUR. 96, 149-57 (1981-82 Spec. Sess.) (hereinafter “S.

JOUR.”), and a conference committee, see H. JOUR. 476, 486; S.

JOUR. 209, 770-71, 813-14, HB 20 was enrolled on May 13, 1982,

Case 1:07-cv-00311-SM Document 14 Filed 08/05/08 Page 2 of 12
3

see H. JOUR. 519; S. JOUR. 866, and became effective on May 22,

1982, see 1981-82 N.H. LAWS 87.

“In December 2004, [Starr] sought a declaratory judgment

that the legislature had illegally adopted RSA 651:2, II-e.” 

Starr, 154 N.H. at 175. The crux of his claim was that the

legislature had no authority to take up matters, such as truth in

sentencing, that were not enumerated in the G&C resolution, and

that because the G&C resolution did not mention truth in

sentencing, his right to due process was violated by the

enactment of RSA 651:2, II-e. Id. The absence of truth in

sentencing from the G&C resolution was the entire basis for

Starr’s due process claim. See Starr, 154 N.H. at 179. “[T]he

Governor . . . responded with a motion to dismiss, which was

granted on March 3, 2005.” Id. at 175.

On appeal, the New Hampshire Supreme Court “assume[d],

without deciding, that [the New Hampshire] constitutional due

process protections attend the passage of legislation, [and]

conclude[d] that the legislature provided such protections in

this case.” Id. at 179. The Court went on to hold:

The Federal Constitution offers the petitioner no

greater protection than does the State Constitution

under these circumstances. See L C & S[, Inc. v.

Warren County Area Plan Comm’n, 244 F.3d [601,] 605

Case 1:07-cv-00311-SM Document 14 Filed 08/05/08 Page 3 of 12
4

[(7th Cir. 2001)] (concluding that “bona fide”

legislation requires no notice or opportunity to be

heard). Accordingly, we reach the same result under

the Federal Constitution as we do under the State

Constitution.

Starr, 154 N.H. at 180.

As construed by the magistrate judge, petitioner’s claim is

this:

[P]rior to passage of the “truth in sentencing law,”

the public was not given adequate notice or an

opportunity to be heard regarding that law, and the

enactment of the law, therefore, violated the due

process requirements of the Fourteenth Amendment. 

Accordingly . . . enforcement of that statute, to

deprive [petitioner] of the ability to earn good time

credits to reduce his minimum sentence, violates his

constitutional rights.

(Order (document no. 4) at 4.) 

The Legal Standard

Federal habeas corpus relief may be granted “only on the

ground that [a petitioner] is in custody in violation of the

Constitution or laws or treaties of the United States.” 28

U.S.C. § 2254(a). Passage of the Anti-Terrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), has

significantly limited the power of the federal courts to grant

habeas corpus relief to state prisoners. 

Case 1:07-cv-00311-SM Document 14 Filed 08/05/08 Page 4 of 12
5

When a petitioner’s claim “was adjudicated on the merits in

State court proceedings,” id., a federal court may disturb a

state conviction only when: (1) the state court adjudication

“resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding,” 28 U.S.C. § 2254(d)(2); or (2) the

state court’s resolution of the issues before it “resulted in a

decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1);

see also Williams v. Taylor, 529 U.S. 362, 399 (2000). 

Notwithstanding petitioner’s argument to the contrary, his

petition is subject to AEDPA’s strict standard of review, because

his federal due process claim “was adjudicated on the merits in

state court proceedings.” Norton v. Spencer, 351 F.3d 1, 5 (1st

Cir. 2003) (quoting Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir.

2001); citing Ellsworth v. Warden, 333 F.3d 1, 6 (1st Cir.

2003)). Specifically, in reliance upon L C & S, 244 F.3d at 605,

the state supreme court ruled that legislative action is not

subject to the due process requirements of the Fourteenth

Amendment, and thus held that the manner in which HB 20 was

Case 1:07-cv-00311-SM Document 14 Filed 08/05/08 Page 5 of 12
1 In its analysis under the state constitution, the New

Hampshire Supreme Court did not decide whether “constitutional

due process protections attend the passage of legislation,”

Starr, 154 N.H. at 179, but assumed that they did, id. However,

that determination pertained to petitioner’s state constitutional

claim, not his federal constitutional claim, which is at issue

here.

2 As already explained, petitioner is incorrect.

6

enacted did not violate Starr’s federal constitutional rights.1 

Discussion

Respondent argues that he is entitled to judgment as a

matter of law because: (1) the legislature’s enactment of HB 20

did not violate petitioner’s procedural due process rights; (2)

enactment of HB 20 did not violate petitioner’s substantive due

process rights; and (3) petitioner cites no authority to support

his claim that specific enumeration in the G&C resolution was

necessary to provide notice to the public of the matters the

legislature would be taking up at its special session. 

Petitioner counters that: (1) he is entitled to de novo review;2

(2) the state supreme court erroneously found, as a factual

matter, that members of the public had spoken at the January 5

hearing on HB 20; (3) the state supreme court incorrectly

determined that public testimony at the January 5 hearing

demonstrated the adequacy of public notice concerning the truthin-sentencing amendment to HB 20; (4) he has provided authority

Case 1:07-cv-00311-SM Document 14 Filed 08/05/08 Page 6 of 12
3 The four cases petitioner cites are all from other states

and turn on an analysis of state constitutional provisions. None

of them addresses the issue in this case, which is whether the

procedure employed by the New Hampshire legislature offended the

federal constitution. 

7

for the proposition that enumeration in the G&C resolution was a

necessary prerequisite for legislative consideration of truth in

sentencing;3 (5) the cases respondent cites are inapposite; and

(6) due process attaches to the enactment of legislation. More

specifically, he argues:

The Petitioner is not saying that he, or any other

individual, was entitled to personalized notice prior

to the enactment [of the] TSA [truth in sentencing

act]. The Petitioner is also not presenting that he

was entitled to some type of notice or hearing before

the requirements of [the] TSA applied to his sentence. 

The petitioner is asserting that the legislature,

especially when meeting in special session, had to

provide some type of general notice to the citizens to

apprise them that [the] TSA was being considered and/or

enacted so that interested individuals could speak at

the public hearings. Where no public notice was

provided, the legislature violated the due process of

the Fourteenth Amendment by failing to provide adequate

notice.

(Pet’r’s Mem. of Law (document no. 10-2) at 8-9.) He further

argues: “In the present matter, no notice of [the] TSA was

provided to the public, absolutely none. Therefore, the

enactment of the TSA was in violation of the Fourteenth Amendment

and invalid.” (Id. at 10.)

Case 1:07-cv-00311-SM Document 14 Filed 08/05/08 Page 7 of 12
8

Under AEDPA’s strict standard of review, respondent is

entitled to prevail because the New Hampshire Supreme Court did

not render a “decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” 28 U.S.C.

§ 2254(d)(1). 

Petitioner cites three United States Supreme Court opinions

in his brief. One concerned “the constitutional sufficiency of

notice to beneficiaries on judicial settlement of accounts by the

trustee of a common trust fund established under the New York

Banking Law.” Mullane v. Cent. Hanover Bank & Trust Co., 339

U.S. 306, 307 (1950). The second concerned whether a person

could be prosecuted under both federal and state law for “the

manufacture of intoxicating liquor for beverage purposes,” Hebert

v. Louisiana, 272 U.S. 312, 313 (1926), and whether the United

States Supreme Court had the authority to decide whether the

Louisiana Supreme Court had correctly construed a Louisiana

statute, id. at 316-17. Mullane and Hebert are so different from

this case that the New Hampshire Supreme Court’s decision on

Starr’s appeal could not have been either contrary to or an

unreasonable application of those decisions. See Williams v.

Taylor, 529 U.S. 362, 399 (2000) (construing the “contrary to”

and “unreasonable application” clauses); Sleeper v. Spencer, 510

Case 1:07-cv-00311-SM Document 14 Filed 08/05/08 Page 8 of 12
9

F.3d 32, 38 (1st Cir. 2007) (citing L’Abbe v. DiPaolo, 311 F.3d

93, 96 (1st Cir. 2002)) (construing the “unreasonable

application” clause). 

The third Supreme Court case petitioner cites was a

constitutional challenge to an Indiana “statute providing that a

severed mineral interest that is not used for a period of 20

years automatically lapses and reverts to the current surface

owner of the property, unless the mineral owner files a statement

of claim in the local county recorder’s office.” Texaco, Inc. v.

Short, 454 U.S. 516, 518 (1982). Texaco, however, was a

challenge to the substance of the Indiana statute, not the

procedure by which it was enacted. Moreover, the Supreme Court

explained in Texaco that “[t]he due process standards of Mullane

apply to an ‘adjudication,’” 454 U.S. at 535, and that “[t]he

Court in Mullane itself distinguished [from an adjudication] the

situation in which a State enacted a general rule of law,” id.

Thus, the Texaco opinion underscores the inapplicability of

Mullane to the facts of this case.

The New Hampshire Supreme Court’s decision in petitioner’s

direct appeal was neither contrary to nor an unreasonable

application of Mullane, Hebert, Texaco, or any other decision by

the United States Supreme Court. The Court has never imposed, or

Case 1:07-cv-00311-SM Document 14 Filed 08/05/08 Page 9 of 12
10

implied the existence of, any federal due process requirement

with regard to the process by which state legislation is enacted. 

And, it certainly has not held that the federal due process

clause precludes a state legislature meeting in special session

from considering matters not enumerated in the executive branch

resolution or proclamation that called it into session. To the

contrary, the Court has held that when state statutes grant

officials immunity from tort claims, or adjust welfare benefits,

“the legislative determination provides all the process that is

due.” Logan v. Zimmerman Brush Co., 455 U.S. 422, 433 (1982)

(citing Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239

U.S. 441 (1915)); cf. Atkins v. Parker, 472 U.S. 115, 129 (1985)

(“The procedural component of the Due Process Clause does not

‘impose a constitutional limitation on the power of Congress to

make substantive changes in the law of entitlement to public

benefits.’”) (quoting Richardson v. Belcher, 404 U.S. 78, 81

(1971)). Because the United States Supreme Court has never

interpreted the due process clause to require those affected by

legislation to receive any form of notice beyond that provided by

the legislative process itself, and has never established any

constitutional standard for the forms of public notice that a

state legislature must provide before it may enact legislation of

general applicability, the New Hampshire Supreme Court did not

render a decision that was either contrary to or an unreasonable

Case 1:07-cv-00311-SM Document 14 Filed 08/05/08 Page 10 of 12
11

application of federal law when it ruled that petitioner’s

federal due process rights were not violated by the manner in

which RSA 651:2, II-e, was enacted. Accordingly, respondent is

entitled to judgment as a matter of law.

Finally, the court notes the lack of factual support for

petitioner’s claim that the public was given no notice that the

legislature was considering truth in sentencing during the 1981-

82 special session. The public record demonstrates that: (1) the

truth-in-sentencing amendment to HB 20 was discussed at the

January 5, 1982, public hearing; (2) the amendment was mentioned

in the January 21, 1982, House Journal, which stated: “The

amendment specifies certain serious crimes for which the full

minimum sentence imposed shall be served,” H. JOUR. 25; (3) the

full text of a truth-in-sentencing amendment was published in the

January 28, 1982, House Journal, id. at 35-36, which

characterized HB 20 as pertaining “to the parole, sentencing and

credit for good conduct of prisoners,” id. at 35; and (4) the

amendment was debated on the floor of both the House, H. JOUR.

25, 37, and the Senate, S. JOUR. 149-56. Approximately four

months before HB 20 was finally adopted, the public had been

given notice in a variety of forms that the legislature was

contemplating the enactment of a truth-in-sentencing law. On

Case 1:07-cv-00311-SM Document 14 Filed 08/05/08 Page 11 of 12
12

that basis, even under de novo review, respondent would be

entitled to judgment as a matter of law.

Conclusion

For the reasons given, respondent’s motion for summary

judgment (document no. 9) is granted. The clerk of the court

shall enter judgment in accordance with this order and close the

case. 

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

August 5, 2008

cc: Darren Starr, pro se

John R. Lilly, Esq.

Nancy J. Smith, Esq.

John Vinson, NH Department of Corrections

Stephen D. Fuller, Esq., NH Attorney General’s Office

Case 1:07-cv-00311-SM Document 14 Filed 08/05/08 Page 12 of 12