UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Chad Evans

v. Civil No. 08-cv-105-JD

Richard Gerry, Warden

New Hampshire State Prison

O R D E R

Chad Evans has filed a petition for a writ of habeas corpus

(document no. 1) challenging the constitutionality of his

sentence as increased and imposed by the New Hampshire Superior

Court’s Sentence Review Division (hereinafter “The Division”).1 

The matter is before me for preliminary review to determine

whether Evans’ habeas petition, filed pursuant to 28 U.S.C. §

2254, is facially valid and may proceed. See Rule 4 of the Rules 

1This Court previously allowed this matter to be stayed

pending exhaustion of unrelated claims in the state court which

Evans had considered joining to this petition (document no. 5). 

By Order issued December 14, 2009 (document no. 13), I directed

Evans to file a substantive action to exhaust his unexhausted

claims in the State court within thirty days of the date of that

Order. Evans has now responded to the December 14 Order,

indicating his desire to proceed on the claim presented in his

original petition, and to forego his as yet unexhausted claims

(document no. 14).

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Governing Section 2254 cases in the United States District Courts

(“§ 2254 Rules”).

Background

Chad Evans was convicted of second degree murder and assault

and sentenced to twenty-eight years to life in prison by the

trial court. After trial, Evans filed a direct appeal of his

conviction. In the meantime, the State filed a motion seeking to

have Evans’ sentence reviewed by the Division, which is comprised

of a panel of three Superior Court judges. The State’s motion

seeking review was filed pursuant to N.H. Rev. Stat. Ann. §

(“RSA”) 651:58, enacted on January 1, 2002, eleven days after

Evans was convicted. Prior to January 1, 2002, the State could

only seek an increase of a sentence imposed by the trial court if

the defendant first applied to the Division for a review of his

or her sentence.

The Division initially dismissed the State’s petition for

review on the basis that Evans had not been advised at the time

of his sentencing that his sentence could be increased, and that

the review therefore violated his due process rights. Upon the

State’s petition for a writ of certiorari, the New Hampshire

Supreme Court (“NHSC”) found that the Division lacked

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jurisdiction to hear Evans’ due process claim and remanded the

State’s petition to the Division for consideration. On April 26,

2005, the Division imposed a consecutive sentence with a fifteen

year minimum term, effectively increasing Evans’ minimum sentence

from 28 years to 43 years in prison. 

Evans appealed to the NHSC on the grounds that the increase

violated his due process and double jeopardy rights, and his

state and federal constitutional right not to be subjected to ex

post facto laws. The NHSC affirmed the sentence increase imposed

by the Division. Evans filed an unsuccessful petition for a writ

of certiorari in the United States Supreme Court which was denied

on March 26, 2007. This petition followed, raising the federal

constitutional ex post facto claim previously raised in the state

courts and the United States Supreme Court. 

Discussion

I. In Custody Requirement

To petition a federal court for habeas corpus relief from a

state court judgment, the applicant must be “in custody in

violation of the Constitution or laws or treaties of the United

States.” See Garlotte v. Fordice, 515 U.S. 39, 40 (1995) (citing

28 U.S.C. § 2254(a)); Maleng v. Cook, 490 U.S. 488, 490-91

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(1989). Evans is presently serving the challenged sentence in

the New Hampshire State Prison and has thus satisfied the

statutory “in custody” requirement to allow this matter to

proceed.

II. Exhaustion Requirement

To be eligible for habeas relief, Evans must show that he

has exhausted all of his 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. DiPaola, 131 F.3d 259, 261

(1st Cir. 1997) (citing authority to explain the exhaustion

principle). 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.

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

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constitutional error). “In order to . . . present the federal

claim fairly and recognizably to the state courts, . . . 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) (internal citations omitted));

Josselyn v. Dennehy, 475 F.3d 1, 3 (1st Cir. 2007) (quoting

Casella v. Clemons, 207 F.3d 18, 20 (1st Cir. 2007)). 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, or, in some

circumstances, (5) citing to state court decisions that rely on

federal law or articulate 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)); cf. Martens

v. Shannon, 836 F.2d 715, 717 (1st Cir. 1988) (finding that

simply reciting facts underlying a state claim, where those facts

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might support either a state or federal claim, without more, is

inadequate to constitute fair presentation to the state court of

a federal claim). 

Evans’ petition sufficiently alleges that the federal nature

of his ex post fact claim has been fairly presented to and

exhausted in the NHSC. Accordingly, Evans has demonstrated that

the claim has been exhausted and may proceed.

Conclusion

The petition shall be served upon Respondent Richard Gerry,

the Warden of the New Hampshire State Prison. Respondent shall

file an answer or other pleading in response to the allegations

made therein. See § 2254 Rule 4 (requiring reviewing judge to

order a response to the petition). The Clerk’s office is

directed to serve the New Hampshire Office of the Attorney

General, as provided in the Agreement on Acceptance of Service,

copies of this Order and Evans’ habeas petition (document no. 1),

my December 14, 2009 Order (document no. 13), and Evans’ response

to that Order (document no. 14).

Respondent is directed to answer or to otherwise plead

within thirty days of the date of this Order. The answer shall 

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comply with the requirements of § 2254 Rule 5 (setting forth

contents of the answer). 

Upon receipt of the response, the Court will determine

whether a hearing is warranted. See § 2254 Rule 8 (providing

circumstances under which a hearing is appropriate). 

Petitioner is referred to Fed. R. Civ. P. 5, which requires

that every pleading, written motion, notice, and similar paper,

after the petition, shall be served on all parties. Such service

is to be made by mailing the material to the parties’

attorney(s). 

SO ORDERED. 

_______________________________

James R. Muirhead

United States Magistrate Judge

Date: January 20, 2010

cc: David Rothstein, Esq.

JM:jba

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