UNITED STATES DISTRICT COURT 

DISTRICT OF NEW HAMPSHIRE

Terry T. Thomas

v. Civil No. 07-cv-385-JL

Opinion No. 2008 DNH 102

New Hampshire State Prison,

Warden

O R D E R

Before the court is the Report and Recommendation of the

Magistrate Judge (Muirhead, J.), see 28 U.S.C. § 636(b)(1)

(2006), LR 4.3(2), 28 U.S.C. § 2254 Rule 4, LR 72.1, concluding

that petitioner Terry T. Thomas’s petition for a writ of habeas

corpus should be dismissed for lack of jurisdiction because he is

no longer in custody. See 28 U.S.C. § 2254(a) (2006). Thomas

objects to the Magistrate Judge’s recommendation. Because the

court rules that Thomas has satisfied his burden to show custody

for purposes of jurisdiction, the court does not adopt the report

and recommendation, and remands the petitioner to the Magistrate

Judge for further review. See LR 4.3, 28 U.S.C. § 2254 Rule 10,

28 U.S.C. § 636(b)(1). 

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I. APPLICABLE LEGAL STANDARD

Thomas contends that the Magistrate Judge erred in

recommending that his petition be dismissed, challenging the

conclusion that because Thomas served the maximum prison term for

the challenged convictions, he is not “in custody” for purposes

of the writ. See 28 U.S.C. § 2254(a). The district court is not

bound to accept the Magistrate Judge’s recommendations on the

disposition of a habeas corpus petition. See Grassia v. Scully,

892 F.2d 16, 18-19 (2d Cir. 1989); 28 U.S.C. §636(b)(1); LR 72.1;

see also Matthews v. Weber, 423 U.S. 261, 270-71 (1976) (decided

under prior version of the Federal Magistrate Act). In this

context, the district court “may accept, reject, or modify, in

whole or in part, . . . the recommendations made by the

magistrate judge.” 28 U.S.C. § 636(b)(1), see United States v.

Raddatz, 447 U.S. 667, 676 (1980) (district court has broad

discretion to review recommendations of magistrate judge). Broad

discretion is particularly appropriate where, as here, the

Magistrate Judge’s recommendation is based on conclusions of law. 

Gioiosa v. United States, 684 F.2d 176, 179 (1st Cir. 1982)

(district court free to review legal findings of magistrate

judge).

At this preliminary juncture in the proceedings there are no

factual disputes, and jurisdiction is a question of law. This

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court, therefore, will accept the petitioner’s jurisdictionally

sufficient facts as true and view the pleadings in a light most

favorable to the petitioner. See Valentin v. Hosp. Bella Vista,

254 F.3d 358, 363 (1st Cir. 2001).

II. BACKGROUND

In his pleadings, Thomas asserts the following relevant

facts. He was convicted in New Hampshire state court on three

counts of receiving stolen property, see N.H. Rev. Stat. Ann. §

637:7 (1986), on May 10, 2001. He was sentenced to three

concurrent terms of three and one-half to seven years in prison

for each offense and was ordered to pay restitution. He served

the maximum sentence for these convictions and was released from

the New Hampshire State Prison in December 2007. Thomas

currently awaits trial in Massachusetts on burglary charges, see

generally, Mass. Gen. Laws ch. 266 (2006), relating to an

incident occurring before his incarceration in New Hampshire.

The petitioner, proceeding pro se and in forma pauperis,

see, LR 4.3(d)(2), filed a petition for a writ of habeas corpus

seeking relief from his New Hampshire convictions. The

Magistrate Judge conducted his preliminary review under our Local

Rules, see LR 4.3(2), and recommended that the petition be

dismissed on the basis that Thomas did not satisfy the “in

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custody” requirement of the federal habeas corpus statute. 

Report and Recommendation at 4; see 28 U.S.C. § 2254(a). 

Specifically, the Magistrate Judge concluded that although Thomas

was incarcerated when his petition was filed, the court lacks

jurisdiction because Thomas served his maximum sentence and is no

longer in custody. The petitioner filed a timely objection, see

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

and the matter was submitted to this court for review. See id.

III. ANALYSIS

Disposition of this matter requires analysis of two distinct

issues: (1) whether this court has jurisdiction over Thomas’s

habeas petition, and (2) whether his petition is nevertheless

moot. See Spencer v. Kemna, 523 U.S. 1, 7 (1998). First, this

court must determine whether Thomas was “in custody” pursuant to

28 U.S.C. § 2554(a), thus conferring jurisdiction on this court. 

See Lefkowitz v. Fair, 816 F.2d 17, 19 (1987). Second, if this

court concludes that Thomas was “in custody,” then this court

must decide whether the petition is now moot because Thomas

served the maximum sentence for the challenged convictions. See

Spencer, 523 U.S. at 7. 

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A. In custody requirement

The writ of habeas corpus is an extraordinary remedy

intended to protect “restraints on individual liberty.” Hensley

v. Mun. Court, 411 U.S. 345, 351 (1973); Tinder v. Paula, 725

F.2d 801, 803 (1st Cir. 1984). Its purpose is to provide for

“judicial inquiry . . . into the legality of the detention of a

person.” Carafas v. LaVallee, 391 U.S. 234, 238 (1968). It is

not “casually available,” Lefkowitz, 816 F.2d at 19, and “its use

has been limited to cases of special urgency, leaving more

traditional remedies for cases in which the restraints on liberty

are neither severe nor immediate.” Tinder, 725 F.2d at 803

(quotations omitted). As such, this court’s remedial habeas

corpus powers are accessible only to petitioners who are “in

custody” as a result of a state court conviction. 28 U.S.C. 

§ 2554(a); see Maleng v. Cook, 490 U.S. 488, 491 (1989). 

The habeas corpus statute grants the district court

jurisdiction to “entertain an application for a writ of habeas

corpus [on] behalf of a person in custody pursuant to the

judgment of a State court only 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. § 2554(a) (emphasis added). The

statutory mandate that a petitioner be “in custody” for the

sentence or conviction under attack -- clearly evident in the

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text of the statute itself -- is grounded in the fundamental

purpose of the habeas corpus writ as explained above. See

Carafas, 391 U.S. at 238. 

“Custody” under the federal habeas statute is determined at

the time the petition is filed. Maleng, 490 U.S. at 491; 

Carafas, 391 U.S. at 238; Tinder, 725 F.2d at 80. The term

“custody” requires “restraints not shared by the public

generally, . . . there must be some type of continuing

governmental supervision over the person.” Tinder, 725 F.2d at

803 (quotations and citations omitted). Actual incarceration

easily meets this test because the petitioner is under the direct

supervision of corrections authorities, cf. Lefkowitz, 816 F.2d

at 19 (term custody not limited to physical custody only), and

incarceration is a restraint not faced by the general public. 

See Spencer, 523 U.S. at 7 (petitioner’s incarceration at the

time petition filed satisfies the statutory “in custody”

requirement); Leitao v. Reno, 311 F3d 453, 455 (1st Cir. 2002);

Perez v. Greiner, 296 F.3d 123, 125 n.3 (2nd Cir. 2002) (“in

custody” requirement satisfied because petitioner incarcerated

when petition filed); cf. Carafas 391 U.S. at 226 (petitioner in

custody because petition filed before sentence expired);

Lefkowitz, 816 F.2d at 19.

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Thomas filed his petition while he was serving his sentences

for possession of stolen property at the New Hampshire State

Prison. His inmate status was certified by the warden. Thus he

was “in custody” pursuant to 28 U.S.C. § 2254(a). See, e.g.

Spencer, 523 U.S. at 7. Because custody status is determined at

the time a petition is filed, Maleng, 490 U.S. at 491; Carafas,

391 U.S. at 238, this court properly has jurisdiction to

entertain Thomas’s habeas corpus challenge to his New Hampshire

convictions. See 28 U.S.C. § 2254(a).

B. Mootness

The issue remains whether Thomas’s petition became moot when

he finished serving the maximum sentence for his New Hampshire

convictions. Article III, § 2 of the Constitution requires that

there must be a live “case-or-controversy” to invoke this court’s

jurisdiction. “This case-or-controversy requirement subsists

through all stages of federal judicial proceedings.” Spencer,

523 U.S. at 7 (quotations omitted). It mandates that the parties

have a continuing personal interest in the outcome, id., and that

the court is capable of granting “effectual relief to the

potentially prevailing party.” Horizon Bank & Trust Co. v.

Massachusetts, 391 F.3d 48, 53 (1st Cir. 2004). In essence, the

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petitioner must have incurred, or be subject to, a cognizable

injury that a court can remedy. Spencer, 523 U.S. at 7.

When a petitioner is released from detention, the inquiry

shifts to whether the petitioner will continue to suffer

“collateral consequences” from the challenged conviction. United

States v. Duclos, 382 F.3d 62, 65-66 (1st Cir. 2004); see Horizon

Bank, 391 F.3d at 54. This “collateral consequences” rule

recognizes that even after release, a case-or-controversy

continues because the petitioner still has a personal stake in

the outcome of the petition and is threatened by an actual harm

that a court can redress. See Duclos, 382 F.2d at 65-66; cf.

Spencer, 523 U.S. at 7. Courts must determine, therefore,

whether after release a petitioner still suffers “redressable

injuries” sufficient to satisfy the Article II case-orcontroversy requirement. Duclos, 382 F.3d at 66.

This determination is straightforward when a petitioner

challenges an underlying criminal conviction. Cf. Spencer, 523

U.S. at 8 (drawing distinction between challenge of parole

statute and criminal conviction). In this instance, courts

presume there are sufficient collateral consequences to satisfy

the case-or-controversy requirement. Spencer, 523 U.S. at 12;

Sibron v. New York, 392 U.S. 40, 55 (1968); Duclos, 382 F.3d at

66; accord Perez, 296 F.3d at 125; Diaz v. Duckworth, 143 F.3d

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345, 346 (7th Cir. 1998). This presumption rests on the notion

that “[i]n the context of criminal conviction[s], the presumption

of significant collateral consequences is likely to comport with

reality. . . . [I]t is an obvious fact of life that most

criminal convictions do in fact entail adverse collateral legal

consequences.” Spencer, 523 U.S. at 12 (quotations omitted). A

habeas petition challenging a criminal conviction is rendered

moot “only if it is shown that there is no possibility that any

collateral legal consequences will be imposed on the basis of the

challenged conviction.” Sibron, 392 U.S. at 57. For example,

the possibility that a prior conviction may be used to either

impeach testimony in subsequent proceedings or to enhance his

sentence has been found sufficient to avoid a conclusion of

mootness. See Evitts v. Lucey, 469 U.S. 387, 392 n.4 (1985);

Ginsberg v. New York, 390 U.S. 629, 634 n.2 (1968). Further,

petitioners have a continuing personal stake in the outcome of

petition when, as here, they are still subject to pay

restitution. Cf. United States v. Molak, 276 F.3d 45, 48-49 (1st

Cir. 2002) (outstanding restitution order sufficient to establish

a continuing case-or-controversy in a direct appeal of sentence). 

Accordingly, because Thomas’s petition challenges the

legality of his New Hampshire convictions, the district court is

to presume the existence of collateral consequences. Duclos, 382

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F.3d at 66. Further, unlike habeas petitions that do not

challenge a criminal conviction, Thomas need not show actual

collateral consequences. See Spencer, 523 U.S. at 14 (parole

revocation); Duclos, 382 F.3d at 66. Rather, the petition is not

moot if there is a material possibility that Thomas will suffer

collateral consequences from his New Hampshire convictions. Cf.

Perez, 296 F.3d at 125-126 (concluding no material possibility

where petitioner permanently barred from the United States on a

wholly separate ground.) 

The record before the court does not lead it to conclude, to

any degree of certainty, that Thomas will not be subject to

collateral consequences arising from these convictions. Thomas

alleges in his petition that the New Hampshire convictions will

adversely affect the disposition of the Massachusetts charges. 

See Evitts, 469 U.S. at 392 n.4. He further alleges in the

objection to the magistrate’s recommendation that the New

Hampshire convictions may be used to enhance any sentence imposed

should he be convicted of the Massachusetts charges. Id.; see

also Ginsburg, 390 U.S. at 634 n.2. And he alleges in both his

petition and objection that he is still subject to restitution

obligations imposed pursuant to his New Hampshire convictions.

Cf. Molak, 276 F.2d at 48-49. Accordingly, this court concludes

that Thomas’s petition is not moot because there remains a

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 In his petition, Thomas challenges his sentences and asks

this court to order his immediate release from prison. Because

Thomas has served the maximum sentence and therefore this court

is unable to offer relief, such issues are moot. This finding of

mootness, as discussed previously, should not be read to apply to

any challenge to Thomas’s conviction. Cf. Barber v. Moran, 753

F. Supp. 421, 422 (D.R.I. 1991).

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sufficient material possibility of collateral harm arising from

the New Hampshire convictions.1

IV. CONCLUSION

For the foregoing reasons, I do not adopt the Report and

Recommendation insofar as it pertains to Thomas’s challenge to

his underlying conviction. I therefore remand the petition to

the Magistrate Judge for further review pursuant to LR 4.3 and 28

U.S.C. § 2254 R.10.

SO ORDERED.

 

Joseph N. Laplante

United States District Judge

Dated: May 14, 2008

cc: Terry T. Thomas, pro se

N.H. State Prison, Warden

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