1Named as respondents are the following individuals: Kelly

A. Ayotte, New Hampshire Attorney General; Larry Blaisdell,

Warden of the Northern New Hampshire Correctional Facility

(“NCF”); Richard M. Gerry, Warden of the New Hampshire State

Prison (“NHSP”); John Eckert, Executive Assistant of the New

Hampshire Adult Parole Board (“Parole Board”); George J. Khoury,

Chair of the Parole Board; and Parole Board members Alan Coburn,

Megan C. DeVorsey, Robert F. Hamel, George L. Iverson, Donald

LaRoche, and Pierre J. Morin. As petitioner is in alternate

custody at the NHSP and NCF, I construe the respondents to be the

wardens of those facilities. See Habeas Rule 2 (where petitioner

is in custody pursuant to a state judgment, the state officer

having custody of the petitioner shall be named as respondent).

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Peter D’Amelio

v. Civil No. 08-cv-518-JD

New Hampshire Attorney General, et al.1

REPORT AND RECOMMENDATION

Petitioner Peter D’Amelio has filed a petition for a writ of

habeas corpus and supporting documents, pursuant to 28 U.S.C. §

2254, challenging the constitutionality of his state court

conviction and confinement (document no. 1). See Rule 4 of the

Rules Governing Section 2254 Cases in the United States District

Courts (“Habeas Rule”) (requiring initial review to determine

whether the petition is facially valid). For the reasons stated

Case 1:08-cv-00518-JD Document 4 Filed 04/08/09 Page 1 of 11
2

below, I recommend that the petition be dismissed for failure to

state a claim upon which federal habeas relief may be granted.

Background

D’Amelio is a New Hampshire state prisoner who claims to be

alternately confined at the NHSP and the NCF. On September 23,

2004, the Parole Board paroled him and classified him as an

intensive supervision parolee (“ISP”). At that time, D’Amelio

signed a Certificate of Parole, indicating that he understood and

agreed to abide by certain general and specific conditions of

parole. As an ISP, D’Amelio was considered a high risk offender

and was required, among other conditions, to meet with his parole

officer at least four times a month, to obey an 8:00 p.m. curfew

and to refrain from using drugs and alcohol. 

During a regularly scheduled visit with his parole officer,

Mark O’Donoghue, on October 26, 2004, D’Amelio confided that he

had used marijuana. Rather than arrest D’Amelio for his admitted

parole violation, O’Donoghue referred him to a substance abuse

counselor. On November 23, 2004, O’Donoghue and another state

parole officer visited D’Amelio’s apartment for a routine home

visit to determine whether D’Amelio and other parolees living at

the residence were complying with the terms of their parole. 

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3

After knocking, the officers were permitted to enter the

apartment. O’Donoghue picked up a cup of water that was on a

table and noticed three pills underneath the cup along with a

cigar that appeared to contain marijuana leaves. Upon finding

the contraband under the cup, the officer placed D’Amelio in

handcuffs and took him into custody. 

The officers allegedly conducted the search pursuant to

Paragraph 401.02(b)(9) of the New Hampshire Code of

Administrative Rules, which provides that a parolee shall:

[p]ermit[] the parole officer to visit parolee’s 

residence at any time for the purpose of 

examination and inspection in the enforcement of 

the conditions of parole and submit to searches of 

his person, property, and possessions as requested 

by the parole officer; . . . 

N.H. Code Admin. R. Par 401.02(b)(9). Subsequently, D’Amelio was

charged with three counts of possession of a controlled drug with

intent to distribute. 

On July 8, 2005, D’Amelio filed a motion to suppress with

the New Hampshire Superior Court (Hillsborough County) in which

he moved to suppress all evidence seized pursuant to the illegal

search of his residence on November 23, 2004. In addition, he 

asserted that the parole search was not supported by reasonable

suspicion that he had been involved in any illegal activity, in

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2In Anderson, the plaintiff filed a civil rights action,

pursuant to Section 1983, seeking damages for Fourth Amendment

violations arising from a parole search of his residence. The

plaintiff also sought a declaration that the regulation under

which the search was conducted, N.H. Code Admin. R. Par

401.02(b)(9), was unconstitutional. Id. at *6. The court noted

that N.H. Code Admin. R. 401.02(b)(9) broadly requires a parolee

“to submit to searches of his person, property, and possessions

as requested by the parole officer” and held that the rule, as

written, was unconstitutionally overbroad on its face. Id.

4

violation of his federally protected rights under the Fourth and

Fourteenth Amendments. On October 4, 2005, D’Amelio filed a

motion to dismiss with the superior court in which he moved to

dismiss the action against him on all counts “based on the

unconstitutionality of the provision relied upon by the State in

allowing the parole search. . .” Specifically, he asserted that

the parole search was conducted pursuant to N.H. Code Admin. R.

Par 401.02(b)(9), which was facially unconstitutional. He

further asserted that on January 30, 2004, the New Hampshire

Attorney General advised the United States District Court for the

District of New Hampshire that the Parole Board intended to

commence the administrative rule making process to amend N.H.

Code Admin. R. Par 401.02(b)(9) in accordance with Anderson v.

Peterson, 2003 WL 23100320 (D.N.H. Dec. 31, 2003).2 The superior

court denied D’Amelio’s motion to suppress and motion to dismiss;

the court further denied his subsequent motion for

Case 1:08-cv-00518-JD Document 4 Filed 04/08/09 Page 4 of 11
5

reconsideration and motion for permission to file an

interlocutory appeal.

Following a stipulated facts trial, D’Amelio was convicted

of two counts of possession of a controlled substance with intent

to distribute. Subsequently, he filed an appeal with the New

Hampshire Supreme Court (“NHSC”) in which he raised the following

claims:

(1) the State’s search of D’Amelio’s residence,

conducted pursuant to N.H. Code Admin. R. Par

401.02(b)(9), violated his federally protected rights

under the Fourth and Fourteenth Amendments; and 

(2) the trial court erred in denying D’Amelio’s motion

to suppress and motion to dismiss where the search of

his residence: (a) was conducted pursuant to the

State’s admittedly facially unconstitutional

administrative rule, N.H. Code Admin. R. Par

401.02(b)(9); (b) was not supported by reasonable

suspicion; and (c) where the New Hampshire Attorney

General previously advised the United States District

Court for the District of New Hampshire that it had

initiated the administrative rule making process to add

a “reasonable suspicion” requirement to remedy the

Parole Board’s unconstitutional rule. See Anderson,

2003 WL 23100320 (D.N.H. Dec. 31, 2003).

On December 27, 2007, the NHSC affirmed D’Amelio’s convictions

and held:

We agree with the thorough and well-reasoned decision

of the superior court concluding that the search of the

defendant’s apartment was reasonable in time, place and

frequency. See State v. Zeta Chi Fraternity, 142 N.H.

16, cert. denied, 522 U.S. 995 (1997) We therefore

Case 1:08-cv-00518-JD Document 4 Filed 04/08/09 Page 5 of 11
6

affirm his convictions.

State of New Hampshire v. Peter D’Amelio, No. 2007-0025 (N.H.

Dec. 27, 2007).

D’Amelio now brings the instant petition in which he raises

the following two grounds for federal habeas corpus relief:

(1) the search of D’Amelio’s residence, conducted 

pursuant to N.H. Code Admin. R. Par 401.02(b)(9), was

not supported by reasonable suspicion that he had

violated the conditions of his parole and, therefore,

was patently unreasonable and in violation of his

Fourth Amendment rights (Ground One); and 

(2) the trial court committed reversible error “in not

undertaking a separate federal constitutional analysis

before denying [D’Amelio’s] motions to suppress and

dismiss” (Ground Two). 

In the alternative, D’Amelio requests this court to conduct an

evidentiary hearing to determine whether the search of his

residence “would have been constitutionally proper had the New

Hampshire Adult Parole Board amended the administrative rule and

added a reasonable suspicion requirement . . .”

Discussion

I. Fourth Amendment Claim

A. Fourth Amendment Claim

Ground One of the petition asserts a federal habeas corpus

claim based on an alleged violation of D’Amelio’s Fourth

Case 1:08-cv-00518-JD Document 4 Filed 04/08/09 Page 6 of 11
3I construe this claim to allege a violation under the

Fourth Amendment, as applied to the states through the Fourteenth

Amendment.

7

Amendment right to be free from unconstitutional searches and

seizures.3

It is well-settled that “where the State has provided an

opportunity for full and fair litigation of a Fourth Amendment

claim, a state prisoner may not be granted federal habeas corpus

relief on the ground that evidence obtained in an

unconstitutional search or seizure was introduced at his trial.” 

Stone v. Powell, 428 U.S. 465, 482, 494 (1976); accord Gandarilla

v. Artuz, 322 F.3d 182, 185 (2d Cir. 2003). See also Vargas v.

Gunn, 67 F.3d 310 (9th Cir. 1995)(unpublished)(holding that

petitioner’s Fourth Amendment claim challenging the validity and

scope of a parole search and the legality of his arrest was not

cognizable under federal habeas review). “Stone thus stands for

the proposition that a federal habeas court ordinarily cannot

revisit a state court’s disposition of a prisoner’s Fourth

Amendment claims.” Sanna v. Dipaolo, 265 F.3d 1, 8 (1st Cir.

2001). “[T]here is an exception for instances in which a habeas

petitioner had no realistic opportunity to litigate his Fourth

Amendment claim fully and fairly in the state system.” Id.

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8

(citing Palmigiano v. Houle, 618 F.2d 877, 881-82 (1st Cir.

1980). In such instances, the habeas petitioner “bears the

burden of proving that his case fits within the contours of the

exception.” Id.

Here, in Ground One of the petition, D’Amelio alleges that

the search of his residence, conducted pursuant to N.H. Code

Admin. R. Par 401.02(b)(9), was not supported by reasonable

suspicion and, therefore, was patently unreasonable and in

violation of his Fourth Amendment rights. The record

demonstrates that he litigated this Fourth Amendment claim before

the New Hampshire state courts. First, in his motion to

suppress, D’Amelio moved the superior court to suppress all

evidence seized pursuant to the illegal search of his residence

on November 23, 2004. He asserted that the parole search was not

supported by reasonable suspicion indicating that he had been

involved in any illegal activity and, therefore, was conducted in

violation of his rights under the Fourth and Fourteenth

Amendments. Second, in his motion to dismiss, D’Amelio moved the

superior court to dismiss the action against him on all counts. 

He asserted that the parole search was conducted pursuant to N.H.

Code Admin. R. Par 401.02(b)(9), which was facially

Case 1:08-cv-00518-JD Document 4 Filed 04/08/09 Page 8 of 11
4D’Amelio is not precluded, however, from pursuing his

Fourth Amendment claim in a civil rights action under 42 U.S.C. §

1983.

9

unconstitutional. Lastly, in his appeal to the NHSC, D’Amelio

again presented his Fourth Amendment claim. He has not alleged

that he was denied an opportunity to litigate his Fourth

Amendment claim or that he was denied any state corrective

process. Given that D’Amelio was afforded a full and fair

opportunity to litigate his Fourth Amendment claims, I conclude

that his claim is not reviewable in a federal habeas corpus

action.4 Accordingly, I recommend that Ground One of the

petition be dismissed.

B. State Law Claim

Ground Two of the petition asserts a federal habeas corpus

claim arising from the trial court’s alleged error “in not

undertaking a separate federal constitutional analysis” before

denying D’Amelio’s motion to suppress and motion to dismiss. 

It is well-established that “[a] federal court may not issue

the writ on the basis of a perceived error of state law.” Pulley

v. Harris, 465 U.S. 37, 41 (1984). In conducting habeas review,

a federal court is limited to deciding whether a conviction

violated the Constitution, laws or treaties of the United States. 

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See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (holding that

“it is not the province of a federal habeas court to reexamine

state-court determinations on state-law questions.”). Thus,

“[t]he only claims cognizable in a federal habeas corpus action

are that a state conviction was obtained in violation of some

right guaranteed by the United States Constitution or other

federal law.” Figueroa v. Commissioner of Corrections, 2009 WL

179792 at *7 (D. Conn. Jan. 26, 2009).

In Ground Two of the petition, D’Amelio alleges that the

trial court committed reversible error “in not undertaking a

separate federal constitutional analysis” before denying his

motion to suppress and motion to dismiss. He merely challenges

the trial court’s ruling and rationale and fails to allege, or

even identify, a violation of a federal constitutional right. 

Because Ground Two of the petition raises an issue of state law

and fails to identify a federal claim, I conclude that it is not

cognizable on federal habeas review and therefore recommend that

it be dismissed.

Conclusion

For the reasons stated above, I recommend that the petition

be dismissed for failure to state a claim upon which federal

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habeas relief may be granted.

If this report and recommendation is approved, the claims as

identified herein will be considered for all purposes to be the

claims raised in the petition. If the petitioner disagrees with

the identification of the claims herein, he must do so by

objection filed within ten (10) days of receipt of this report

and recommendation, or he must properly move to amend the

petition. 

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

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

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: April 8, 2009

cc: H. Paul Carroll, Esq.

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