UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

John E. Eldredge

v. Civil No. 08-cv-41-JD

Larry Blaisdell, Warden,

Northern New Hampshire

Correctional Facility

REPORT AND RECOMMENDATION

Before the Court is John Eldredge’s petition for a writ of

habeas corpus (document no. 2), filed pursuant to 28 U.S.C. §

2254. The matter is before me for preliminary review to

determine whether or not the claims raised in the petition are

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

Governing Section 2254 cases in the United States District Courts

(“§ 2254 Rules”); 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

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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

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

On May 12, 2006, John Eldredge, who was on parole for a

sexual offense for which he served prison time, turned himself in

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1The papers filed by Eldredge indicate that he also failed

to notify his parole officer that he was moving, failed to notify

the police department of the city he was moving to as required by

the State sex offender registration statute, and failed to

maintain employment while on parole. Although Eldredge

ultimately admitted to the violations charged, he claims that his

reason for turning himself in was to get himself away from

illicit drug use.

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to his parole officer because he had violated the conditions of

his parole by using drugs.1 A parole revocation hearing was held

on June 26, 2006. Prior to the hearing, Eldredge, through his

attorney, entered into an agreement with his parole officer for

Eldredge to plead true to the violation and receive a one year

“setback” in prison. Eldredge agreed to participate in NA and AA

programs during his incarceration. Eldredge pleaded true to the

violation and the Parole Board revoked Eldredge’s parole,

agreeing to consider a request for reparole in April 2007. The

Parole Board found that Eldredge’s parole was “revoked for

absconding, failure to report, heroin use, failure to work, and

failure to notify police of address change” and that the

violations merited a “one-year sanction.” No other directive or

agreement was made part of the record by the Parole Board. The

Parole Board did not specifically exempt Eldredge from any

particular programming not mentioned in the pre-hearing

agreement, or promise that Eldredge would be paroled at the end

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of one year, but only determined that he would be eligible to be

considered for reparole at that time.

While incarcerated awaiting his June 26 parole hearing,

Eldredge was interviewed by Judy Mann at the prison’s Sex

Offender Program (“SOP”). After Eldredge’s parole was revoked,

Mann recommended that Eldredge participate in the SOP’s Parole

Violators Group (“PVG”). Mann found that Eldredge had failed to

take full responsibility for the conduct which lead to his parole

violation, blaming his addiction and his parole officer instead. 

Further, Mann found that Eldredge refused to concede that his

failure to notify the police or his parole officer of his address

change put him at risk of reoffending, because he believed the

risk had been eliminated by his previous participation in sexual

offending treatment programs during his original sentence and

while on parole. After speaking with Eldredge’s outside

treatment provider, Mann also found that Eldredge’s substance

abuse had created issues in his sexual offender treatment. For

all of those reasons, Mann recommended that Eldredge be required

to complete the PVG. Eldredge was given the opportunity to enter

the PVG on July 17, 2006 and July 19, 2006. On both occasions,

Eldredge refused to participate in the program.

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 A reparole hearing was held on April 26, 2007. At that

time, Eldredge’s counselor recommended to the Parole Board that

parole be denied because Eldredge had neither completed the PVG,

nor even conceded that he needed to complete the program. 

Instead, Eldredge refused programming on the grounds that he

believed his agreement to plead true to the violation exempted

him from having to participate in any sexual offender

programming. 

 At the April 26 hearing, the Parole Board asked Eldredge if

he had completed the sexual offender programming recommended by

Mann. Eldredge stated that he had completed the SOP during his

original prison term, and that he should not be required to

engage in further sexual offender programming as a condition of

reparole because his true plea to the parole violation was based

on an agreement that he would be required to participate in

substance abuse counseling, not sexual offender programming. 

Despite these arguments, the Parole Board denied Eldredge parole

until he completed the PVG at the SOP. 

Eldredge filed a petition for a writ of habeas corpus in the

Coos County Superior Court, which dismissed the petition without

a hearing. Eldredge appealed the dismissal to the New Hampshire

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Supreme Court, raising federal constitutional grounds for the

relief he sought. The New Hampshire Supreme Court declined the

appeal and this petition followed. Eldredge claims here that his

Fifth and Fourteenth Amendment due process rights have been

denied by the Parole Board’s denial of parole, because that

decision was inconsistent with the agreement he entered into

prior to pleading true to the parole violation.

Discussion

It is well-settled that a convicted person has no

constitutional right to be conditionally released, on parole or

otherwise, before the expiration of a valid sentence. See

Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1,

7 (1979). A valid conviction, with all its procedural

safeguards, extinguishes that liberty right. See id.; see also

Meachum, 427 U.S. at 224. A right to parole under the 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); Brooker v. Warden,

No. 98-466-JD, 1999 WL 813893, at * 2 (D.N.H. June 22, 1999). 

In New Hampshire, a convicted inmate has no State-created

liberty interest in parole. See Jago v. Van Curen, 454 U.S. 14,

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19-21 (1981); Ainsworth v. Risley, 244 F.3d 209, 216-17 (1st Cir.

2001); Knowles v. Warden, 140 N.H. 387, 389, 666 A.2d 972, 974-75

(1995). “In determining whether state law provides a protectable

liberty interest in parole, federal courts are bound by the

state’s interpretation of applicable state law unless that

construction or application violates federal law.” Brooker, 1999

WL 813893, at * 2.

 The applicable New Hampshire parole laws are found in N.H.

Rev. Stat. Ann. (“RSA”) § 651-A. The statute provides that:

A prisoner may be released on parole upon the 

expiration of the minimum term of his sentence, 

[as adjusted by other statutory provisions], 

provided that there shall appear to the adult 

parole board, after having given the notice 

required in RSA 651-A:11, to be a reasonable 

probability that he will remain at liberty without 

violating the law and will conduct himself as a 

good citizen. Any prisoner so released shall be 

given a permit by the board to be at liberty from 

prison during the unexpired portion of the maximum 

term of his sentence.

RSA 651-A:6, I (2007) (emphasis added). Under authority provided

by RSA 651-A:4, III, the Parole Board has adopted rules

pertaining to parole policy as follows:

Parole shall be considered a privilege, something 

to be earned rather than automatically given, and 

any release prior to the maximum term shall be 

made only upon careful and lawful consideration. 

An inmate shall not be granted parole unless the 

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board finds a reasonable probability that the 

inmate will remain at liberty without violating 

any law and will conduct himself as a good 

citizen, pursuant to criteria in [N.H. Code Admin. 

R.] Par 301.02. 

N.H. Code Admin. R. Par 301.02. 

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

though he may meet certain conditions or criteria. See Knowles,

140 N.H. at 389, 666 A.2d at 974-75; Cable v. Warden, 140 N.H.

395, 398, 666 A.2d 967, 969 (1995); Baker v. Cunningham, 128 N.H.

374, 381, 513 A.2d 956, 960 (1986). Simply put, “[t]he

possibility of parole is not a right to liberty conferred by New

Hampshire state law.” Brooker, 1999 WL 813893 at * 4. 

Absent a constitutional right to parole, or a liberty

interest in the grant of parole, there is no constitutional due

process violation for a denial of parole because there is no due

process right to be granted parole. See Greenholtz, 442 U.S. at

7; Brooker, 1999 WL 813893 at *4. Accordingly, such a claim must

be dismissed, as it is not cognizable in a federal habeas

petition. Here, Eldredge argues that the Parole Board’s

revocation of his parole pursuant to his plea granted him a

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liberty interest in being released on parole if he met the

conditions to which he agreed - specifically, participation in

substance abuse counseling - and therefore exempted him from

having to participate in any other prison programming to obtain

parole. 

Parole regulations that govern the conduct of the Parole

Board, however, require the Parole Board to evaluate an inmate’s

behavior during his custody when making a parole determination. 

Criteria to be considered by the Parole Board in making its

evaluation and deciding Eldredge’s suitability for parole

include, among other things:

(a) The inmate’s personality, maturity, sense of 

responsibility, and any developments in personality 

which might promote or hinder the conformity to the 

law;

. . . 

(d) The inmate’s criminal record, including the nature 

and circumstances of criminal activity, and the recency 

and frequency of previous offenses;

. . . 

(h) The inmate’s conduct within the institution, 

including, but not limited to, 

. . . 

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(2) Evidence of self-improvement through the 

various institutional programs and, specifically 

programs which addressed problems or issues that 

contributed to the inmate’s prior criminal 

activity.

(I) Evaluations and recommendations received by the 

board from the department of corrections, courts, and 

relevant social service, mental health, and criminal 

justice agencies.

. . . 

N.H. Code Admin. R. Par 301.01. The administrative regulations

governing parole also identify the following situations in which

denying parole to an inmate is mandatory:

[T]he Board shall deny parole if, in the judgment of a 

majority of the hearing panel: 

(a) There exists a reasonable probability that the

individual will not conform to the conditions of parole

and/or the laws of the state of New Hampshire; 

(b) Continued treatment, mental or psychological care, 

or vocational or other training within the institution 

would substantially improve the inmate’s capacity to 

lead a law-abiding life upon release at a future date;

. . . 

N.H. Code Admin. R. Par 302. Contrary to Eldredge’s argument

that the Parole Board lacked authority to deny him reparole after

he served his one year setback, an examination of the relevant

parole regulations makes clear that the Parole Board is

authorized to take a continuing role in evaluating the

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appropriateness of an inmate for parole at any time prior to his

release. 

Here, the Parole Board properly exercised its authority to

make decisions based on Eldredge’s institutional behavior during

his incarceration rather than on the terms of a plea agreement. 

The regulations mandate that the Parole Board deny parole when,

as occurred here, corrections officials and the Parole Board both

determined that continued treatment in the PVG was appropriate

prior to Eldredge again obtaining parole status. The Parole

Board’s one-year setback to Eldredge only gave him the right to

be considered for parole after serving that time in prison. 

Eldredge was not denied that consideration, as he was given a

reparole hearing in April 2007. Nothing in the petition here

indicates that the Parole Board exceeded its statutorily

authorized discretion in deciding not to grant Eldredge parole,

or to require that he complete a specific program prior to being

granted parole. See RSA § 651-A:6(I) (giving Parole Board

discretion to evaluate inmate’s potential to succeed on parole).

Section 2254 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

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in custody in violation of the Constitution or laws or treaties

of the United States.” 28 U.S.C. § 2254(a). While Eldredge

attempts to raise a constitutional due process challenge to his

continued incarceration, the petition actually raises a challenge

to the denial of reparole. Such a claim is not cognizable in a

federal habeas action because, as an inmate has no liberty

interest in gaining parole, there is no due process right to be

granted parole. Accordingly, I recommend that the petition be

dismissed.

Conclusion

Any objections 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 Unauthorized Practice of

Law Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992);

United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

/s/ Justo Arenas

Justo Arenas

United States Magistrate Judge

Date: August 13, 2008

cc: John E. Eldredge, pro se

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