UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Darren Starr

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

Larry Blaisdell, Warden,

Northern New Hampshire

Correctional Facility

O R D E R

Before the Court is Darren Starr’s petition for a writ of

habeas corpus and attachments thereto (document no. 1) filed

pursuant to 28 U.S.C. § 2254. Starr alleges in his petition that

the statute under which he was sentenced was adopted by the

legislature in a constitutionally infirm manner, and that as a

result, he is being denied good time credits to which he is

entitled, in violation of his Fourteenth Amendment due process

rights. The matter is before me for preliminary review to

determine whether the petition is facially valid and should be

answered. See Rule 4 of the Rules Governing § 2254 proceedings

(“§ 2254 Rules”) (requiring initial review to determine whether

the petition is facially valid); see also United States District

Court for the District of New Hampshire Local Rule (“LR”)

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4.3(d)(2) (authorizing the magistrate judge to preliminarily

review pro se pleadings).

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

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. 

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1The “truth in sentencing” law in New Hampshire changed how

felony criminal sentences are served, by eliminating the

possibility of receiving “good time” credits that would allow a

prisoner to be paroled prior to the expiration of the minimum

term of his sentence. Instead, under N.H. Rev. Stat. Ann. 651:2,

II-e, a prisoner serving a state prison sentence, in addition to

his minimum sentence, must serve an additional disciplinary

period in confinement. Inmates may earn time off of the

disciplinary period by exhibiting good conduct while in prison,

but the time earned will not result in the prisoner’s release

3

See id. This review ensures that pro se pleadings are given fair

and meaningful consideration.

Background

In October of 1981, the Governor of New Hampshire issued a

resolution calling for the state legislature to meet in special

session for the purpose of taking action on certain enumerated

matters. The resolution identified the legislative matters that

the Governor intended the legislature to address during the

special session. One of the areas identified in the legislation

was an unforeseen loophole in the then-effective driving while

intoxicated statute that the Governor wanted the legislature to

correct.

Six weeks later, a legislator offered an amendment to the

bill concerning the driving while intoxicated legislation. That

amended bill became the “truth in sentencing” law in New

Hampshire, N.H. Rev. Stat. Ann. 651:2, II-e.1 The amendment that

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prior to the expiration of the full minimum term of the sentence.

2The due process claim articulated by Starr, as identified

here, shall be considered to be the claim raised in this petition

for all purposes. If Starr objects to this identification of his

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

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ultimately became the “truth in sentencing” law was not

specifically identified in the Governor’s resolution.

Starr was sentenced to prison on a charge of second degree

murder in 1987, under the “truth in sentencing law,” to serve a

twenty-eight years to life term. While, under the pre-1981

sentencing statute Starr would have been eligible to earn good

time to reduce his minimum parole eligibility date to less than

twenty-eight years, under the terms of the statute in force at

the time he was sentenced, Starr cannot earn eligibility for

parole prior to serving twenty-eight years. 

Starr now alleges that, prior 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, Starr claims, enforcement of

that statute, to deprive him of the ability to earn good time

credits to reduce his minimum sentence, violates his

constitutional rights.2

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Discussion

To be eligible for federal habeas relief, Starr must show

that he is both in custody and 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

process. See 28 U.S.C. § 2254(a) & (b); see Duncan v. Kennedy,

513 U.S. 364, 365 (1995) (per curiam). Starr satisfies the first

requirement as he is currently serving a New Hampshire prison

sentence and is thus in custody. 

The Court further finds that Starr satisfies the second

requirement that state court remedies be exhausted. 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.Maloney, 853 F.2d 40, 42 (1st Cir. 1988), cert. denied, 488

U.S. 1007 (1989) (“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 Baldwin v.

Reese, 541 U.S. 27 (2004) (citing Duncan, 513 U.S. at 365-66

(requiring petitioner to “fairly present” his claim in the

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appropriate state courts, including a state supreme court with

powers of discretionary review, thereby alerting that court to

the federal nature of the claim)). In order to fairly present

his claim in the state courts, Starr need only provide the state

courts with one full opportunity to pass upon the federal

question presented. O’Sullivan v. Boerckel, 526 U.S. 838, 844-45

(1999). I find that Starr, by briefing his argument, including

the federal nature of his claim, in the state Supreme Court, has

fairly presented the issue to the state court for consideration. 

Starr has, therefore, exhausted the claim in the state courts. 

Accordingly, the Court orders that the petition be served

upon Respondent, who 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). 

Service shall be completed by mailing to the New Hampshire Office

of the Attorney General, which is the prison’s attorney, by

certified mail, return receipt requested, copies of this Order

and the habeas petition (document no. 1). Respondent shall

answer or otherwise plead within thirty (30) days of the date of

this Order. The answer shall comply with the requirements of §

2254 Rule 5 (setting forth contents of the answer). 

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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’ attorneys. 

SO ORDERED. 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: February 1, 2008

cc: Darren Starr, pro se

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