1I construe this action to name Larry Blaisdell, the Warden

of the Northern New Hampshire Correctional Facility, where

Carpenito is incarcerated, as the respondent to this action. See

Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (general rule is

that the proper respondent in habeas challenge to present

physical confinement is the warden of the facility where the

prisoner is being held, rather than a remote supervisory

official).

2Because Carpenito’s challenge is to the execution of his

theft sentence, rather than its underlying legality, the relief

Carpenito seeks arises either under 28 U.S.C. § 2254, which

confers jurisdiction on this Court to issue “writs of habeas

corpus on behalf of a person in custody pursuant to the judgment

of a State court . . . on the ground that he is in custody in

violation of the Constitution or laws or treaties of the United

States,” 28 U.S.C. § 2254(a), or under 28 U.S.C. § 2241, which

confers jurisdiction on this Court to issue writs of habeas

corpus in response to a petition from a state or federal prisoner

who “is in custody in violation of the Constitution or laws or

treaties of the United States.” 28 U.S.C. §§ 2241(a) and (c)(3). 

I need not decide this matter at this stage of the proceedings. 

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Anthony Carpenito

v. Civil No. 09-cv-021-SM

William Wrenn, Commissioner,

New Hampshire Department of Corrections1

O R D E R

Before the Court is Anthony Carpenito’s petition for a writ

of habeas corpus, filed pursuant to 28 U.S.C. § 22542, alleging

Case 1:09-cv-00021-SM Document 10 Filed 02/27/09 Page 1 of 11
2

that he is presently serving a sentence that has expired. The

matter is before me for preliminary review to determine whether

or not the claim raised in the petition is facially valid and may

proceed. See Rule 4 of the Rules Governing Section 2254 Cases in

the United States District Courts (“§ 2254 Rules”); see also

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

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

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3

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

Carpenito claims that his continued incarceration pursuant

to his theft conviction, which has extended beyond the expiration

of his maximum sentence for that charge, violates the Fifth,

Fourteenth, and Eighth Amendments to the United States

Constitution. The following chronology of events is gleaned from

Carpenito’s petition (document nos. 1 and 4 - 6), which has been

supplemented by sentencing orders of the New Hampshire Superior

Courts and a copy of the Respondent agency’s own records

regarding Carpenito’s sentence. I have also taken note of the

information available regarding Carpenito’s sentence on the New

Hampshire Department of Corrections’ website. 

Case 1:09-cv-00021-SM Document 10 Filed 02/27/09 Page 3 of 11
4

# On May 18, 1993, Carpenito was sentenced to serve 1-10 

years in prison on a charge of theft. He was granted 

280 days of pretrial credit toward that sentence.

# Accordingly, Carpenito reached his minimum parole 

eligibility date 85 days after he was sentenced, on 

August 11, 1993. His maximum parole date would 

therefore have been August 11, 2002.

# Carpenito was released on parole on August 16, 1993.

# On December 15, 1999, Carpenito was returned to prison 

on a parole violation.

# On August 27, 2001, Carpenito was released to the 

prison’s Administrative Home Confinement program 

(“AHC”) which entails home confinement and electronic 

monitoring of an inmate committed to the custody of the

New Hampshire Department of Corrections.

# On September 26, 2001, Carpenito escaped from AHC.

# At the time of his escape, Carpenito had 288 days 

remaining to serve on his maximum sentence.

# On March 12, 2007, Carpenito was directed to begin 

serving the remainder of his theft sentence. On that 

date, Carpenito was also sentenced to serve 2-5 years 

for the escape, consecutive to the theft sentence.

# The maximum term of Carpenito’s sentence expired 288 

days later, on January 14, 2008.

# Notwithstanding the expiration of his theft sentence, 

the New Hampshire Adult Parole Board scheduled a parole

hearing in Carpenito’s theft sentence in April of 2008, 

and denied him parole to his escape sentence at that 

time. No further parole hearing has been scheduled. 

# As to the escape charge, Carpenito, on January 15, 

2008, having served his entire maximum term on the 

theft charge as of January 14, 2008, should have 

Case 1:09-cv-00021-SM Document 10 Filed 02/27/09 Page 4 of 11
3As identified herein, this claim will be considered to be

the sole claim raised in the habeas petition for all purposes. 

If Carpenito disagrees with this understanding of the petition,

he must do so by properly moving to amend his habeas petition.

5

commenced serving his 2-5 year consecutive sentence. 

Carpenito was granted pretrial credit on the escape 

charge in the amount of 312 days. Accordingly, on May 

4, 2009, two years less 312 days since his sentence 

should have commenced, Carpenito will reach his minimum

parole eligibility date on his escape sentence. He 

will reach the maximum expiration date for that 

sentence on May 4, 2012.

Discussion

I. Illegal Incarceration Claim3

Carpenito claims that he is being incarcerated past the

maximum expiration date of his sentence. Such custody violates

Carpenito’s Fifth, Eighth, and Fourteenth Amendment rights not to

be incarcerated absent a valid conviction and sentence. See

Banks v. York, 515 F. Supp. 2d 89, 115 (D.D.C. 2007) (citing

Berry v. Baca, 379 F.3d 764, 773 (9th Cir. 2004); Davis v. Hall,

375 F.3d 703, 714 (8th Cir. 2004) (plaintiff alleged that

defendants “deprived him of a protected liberty interest by

continuing to confine him after he completed his sentence and was

ordered immediately released”); Moore v. Tartler, 986 F.2d 682,

686 (3d Cir. 1993) (“Subjecting a prisoner to detention beyond

the termination of his sentence has been held to violate the

Case 1:09-cv-00021-SM Document 10 Filed 02/27/09 Page 5 of 11
6

eighth amendment's proscription against cruel and unusual

punishment.”); Golson v. Dep't of Corrs., Nos. 90-7344, 90-7345,

1990 WL 141470, at *1 (4th Cir.1990) (“Incarceration beyond the

termination of one's sentence may state a claim under the due

process clause and the eighth amendment.”); Lewis v. O'Grady, 853

F.2d 1366, 1370 (7th Cir.1988) and Douthit v. Jones, 619 F.2d

527, 532 (5th Cir.1980) (“Detention of a prisoner thirty days

beyond the expiration of his sentence in the absence of a

facially valid court order or warrant constitutes a deprivation

of due process.”)).

Upon reviewing this petition, the Court is concerned that

Carpenito may in fact be serving a long-expired sentence. While

the Court recognizes that Carpenito must also serve a prison term

for escape consecutively to his theft sentence, given the

approach of his minimum parole eligibility date on his second

sentence, if the facts presented are accurate, the presence of a

consecutive sentence does little to reduce the urgency of this

matter.

II. Custody and Exhaustion

Section 2254(a) confers jurisdiction on this Court to issue

“writs of habeas corpus on behalf of a person in custody pursuant

Case 1:09-cv-00021-SM Document 10 Filed 02/27/09 Page 6 of 11
7

to the judgment of a State court . . . on the ground that he is

in custody in violation of the Constitution or laws or treaties

of the United States.” Accordingly, to seek habeas relief under

§ 2254, must allege both that his state conviction or sentence

violates some right accorded to him under federal law, and that

he is in custody pursuant to that state conviction or sentence. 

See Maleng v. Cook, 490 U.S. 488, 491 (1989). As Carpenito is

presently incarcerated, I find that he has satisfied this

requirement under § 2254.

In addition to demonstrating that he is “in custody,” to be

eligible for habeas relief, Carpenito must show that he 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 Braden v. 30th Jud. Cir. Ct., 410 U.S. 484, 489-92

(1973); Benson v. Super. Ct. Dep’t of Trial Ct., 663 F.2d 355,

358-59 (1st Cir. 1981). At this time, Carpenito’s petition does

not demonstrate that he has exhausted his state remedies.

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.

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8

Maloney, 853 F.2d 40, 42 (1st Cir. 1988) (“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 correct the claimed constitutional

error”); see also Picard v. 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). “In

order to exhaust a claim, the petitioner must ‘present the

federal claim fairly and recognizably’ to the state courts,

meaning that he ‘must show that he tendered his federal claim in

such a way as to make it probable that a reasonable jurist would

have been alerted to the existence of the federal question.’” 

Clements v. Maloney, 485 F.3d 158, 162 (1st Cir. 2007) (quoting

Casella v. Clemons, 207 F.3d 18, 20 (1st Cir. 2000) (internal

citations omitted)). A petitioner may fairly present a claim by:

(1) citing a provision of the federal constitution, (2)

presenting a federal constitutional claim in a manner that fairly

alerts the State court to the federal nature of the claim, (3)

citing federal constitutional precedents, (4) claiming violation

of a right specifically protected in the federal constitution,

Case 1:09-cv-00021-SM Document 10 Filed 02/27/09 Page 8 of 11
9

or, in some circumstances, (5) citing to state court decisions

that rely on federal law or articulation of a state claim that is

indistinguishable from one arising under federal law. Clements,

485 F.3d at 162 (citing Gagne v. Fair, 835 F.2d 6, 7 (1st Cir.

1987) and Nadworny v. Fair, 872 F.2d 1093, 1099-1100 (1st Cir.

1989)); see Baldwin v. Reese, 541 U.S. 27, 32 (2004) (A litigant

wishing to raise a federal issue can exhaust the federal issue in

the state courts “by citing in conjunction with the claim the

federal source of law on which he relies or a case deciding such

a claim on federal grounds, or by simply labeling the claim

‘federal.’”); cf. Martens v. Shannon, 836 F.2d 715, 717 (1st Cir.

1988) (finding that simply reciting facts underlying a state

claim, where those facts might support either a state or federal

claim, without more, is clearly inadequate to constitute fair

presentation of a federal claim to a state court). 

Carpenito has not alleged any facts indicating that the

claim presented here, including the federal nature of the claim,

has ever been raised in the state courts. Further, Carpenito has

neither alleged nor demonstrated that effective state court

corrective processes are unavailable to him. Carpenito has

therefore failed to demonstrate exhaustion. Again, as the

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petition does not conclusively negate the possibility that

Carpenito’s habeas claim has been exhausted, I will allow

Carpenito the opportunity to amend his petition to demonstrate

that his claim has, in fact, been exhausted, or that he should be

excused from exhaustion due to the unavailability of effective

state corrective processes. 

Conclusion

I direct Carpenito to amend his petition within thirty days

of the date of this Order to demonstrate that the claim raised,

including the federal nature of the claim, has been exhausted in

the state courts. To demonstrate exhaustion, Carpenito must

submit documents to this Court which show that the claim raised

in this petition, including the federal nature of the claim, has

previously been presented to the state courts, including the New

Hampshire Supreme Court, for consideration.

If Carpenito has not exhausted his claim, or fails to

adequately demonstrate exhaustion thereof, I will recommend that

this matter be dismissed without prejudice to the refiling of a

timely petition upon completion of exhaustion in the state

courts.

Case 1:09-cv-00021-SM Document 10 Filed 02/27/09 Page 10 of 11
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 The Clerk’s Office is directed to forward courtesy copies of

this Order to William Wrenn, the Commissioner of the New

Hampshire Department of Corrections, and to New Hampshire

Attorney General Kelly Ayotte. If the facts of this matter, as

presented here, are accurate, the Court has no doubt that both

Commissioner Wrenn and Attorney Ayotte would seek to correct the

situation as quickly as possible, irrespective of exhaustion.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: February 27, 2009

cc: Anthony Carpenito, pro se

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