UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Chad Evans

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

Opinion No. 2010 DNH 094

Warden, New Hampshire

State Prison

O R D E R

Chad Evans seeks habeas corpus relief, pursuant to 28 U.S.C.

§ 2254, from his sentence following his conviction in state court

on charges of reckless second-degree murder, second-degree

assault, and endangering the welfare of a minor. Evans’s minimum

sentence was increased following review by the Superior Court

Sentence Review Division, requested by the state under the

amended version of New Hampshire Revised Statutes Annotated

(“RSA”) § 651:58, I. For purposes of habeas review, Evans

contends that application of the amended version of RSA 651:58,

I, in his case violated the constitutional prohibitions against

ex post facto laws, and that the New Hampshire Supreme Court’s

decision affirming the sentence was both contrary to and an

unreasonable application of federal law.

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Background

Evans was convicted on December 21, 2001. On April 16,

2002, he was sentenced to serve twenty-eight years to life in

prison on the second-degree murder charge and received suspended

sentences on the assault and endangering charges. Evans appealed

his conviction, which was affirmed. State v. Evans, 150 N.H. 416

(2003).

The state filed a petition for sentence review under RSA

651:58, I. The Superior Court Sentence Review Division

(“Division”) dismissed the petition because Evans was not

informed at his sentencing hearing that the state could seek

review. The state appealed that decision, and the New Hampshire

Supreme Court held that the Division exceeded its jurisdiction in

dismissing the state’s petition. Petition of New Hampshire, 150

N.H. 296, 299 (2003). On April 26, 2005, in response to the

state’s petition, the Division added a consecutive sentence of

five to ten years for one of the assault convictions and a second

consecutive sentence of ten to thirty years on another assault

conviction. Because the additional sentences were consecutive to

the sentence of twenty-eight years to life on the second degree

murder conviction, Evans’s minimum sentence increased from

twenty-eight years to forty-three years.

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Evans appealed the Division’s sentencing decision,

contending that application of RSA 651:58, I, violated his rights

under the state and federal constitutions to due process, to

protection against double jeopardy, and to the prohibition

against ex post facto laws. The New Hampshire Supreme Court

concluded that the amendment to RSA 651:58, I, “created a

procedural change in the statute by altering who made the final

sentencing decision, but not the legal standards for that

decision . . . [and] did not alter the definition of the

underlying offenses, increase the sentencing range for which a

defendant was eligible as a result of a conviction, or eliminate

any available defenses.” Petition of Evans, 154 N.H. 142, 153

(2006). As a result, the supreme court held that application of

the amended version of RSA 651:58, I, did not violate the

prohibitions against ex post facto laws. Id. The Supreme Court

denied Evans’s petition for a writ of certiorari. Evans v. New

Hampshire, 127 S. Ct. 188 (March 26, 2007). Evans filed his

petition under § 2254 in this court on March 20, 2008.

Discussion

Evans contends that the application of RSA 651:58, I, in his

case, which resulted in an increase in his minimum sentence, was

a violation of the prohibitions against ex post facto laws in the

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Federal Constitution because RSA 651:58, I, went into effect

eleven days after Evans was convicted. He argues that the New

Hampshire Supreme Court’s decision that application of RSA

651:58, I, in his case was not an ex post facto law was both

contrary to and an unreasonable application of federal law. The

Warden moves for summary judgment to deny Evans’s petition. 

Evans moves for summary judgment in his favor.

Summary judgment is commonly used in habeas corpus

proceedings. See Fed. R. Civ. P. 81(a)(4); Rule 12, Rules

Governing § 2255 Cases. Summary judgment is appropriate when

“the pleadings, the discovery and disclosure materials on file,

and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c). Evans and the Warden

agree that Evans’s petition does not raise factual issues, that

the petition presents only a legal issue, and that no hearing is

necessary. Cross motions for summary judgment that are based on

the factual background of the claims must be considered

separately. When only a legal issue is presented, as in this

case, the parties have presented their motions as a “case

stated.” See Am. Lease Ins. Agency Corp v. Balboa Capital Corp.,

579 F.3d 34, 39 n.5 (1st Cir. 2009); Garcia-Ayala v. Lederle

Parenterals, Inc., 212 F.3d 638, 643 (1st Cir. 2000).

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States are prohibited by the Federal Constitution “from

enacting laws with certain retroactive effects.” Stogner v.

California, 539 U.S. 607, 610 (2003). A challenged law violates

the prohibition against ex post facto laws if it applies to

conduct that was completed before the law was enacted and raises

the penalty above what was previously provided. Johnson v.

United States, 529 U.S. 694, 699 (2000). A procedural change in

a law, which does not change a defendant’s substantive rights,

does not implicate the ex post facto prohibition, “[e]ven though

[the change in the law] may work to the disadvantage of a

defendant.” Dobbert v. Florida, 432 U.S. 282, 293 (1977).

In this case, the amendment to RSA 651:58, I, added a

provision giving the state the right seek sentence review and

became effective on January 1, 2003, after Evans was convicted of

the charged crimes but before he was sentenced in April of 2003. 

For purposes of habeas review, the parties assume that the

application of RSA 651:58, I, to Evans was retroactive because

the law became effective after Evans was convicted. The New

Hampshire Supreme Court did not expressly decide the

retroactivity issue, stating first that it was reviewing whether

“the claimed retrospective application of RSA 651:58, I, violated

the state and federal constitutional prohibitions against ex post

facto laws” and later that because the amendment affected only

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procedural rights, it could be applied retrospectively. Evans,

154 N.H. at 800 & 805-06 (emphasis added).

 RSA 651:58, I, applies to the sentencing process, allowing

the state, as well as a defendant, to seek review of a sentence. 

It may be arguable that RSA 651:58, I, was not applied

retroactively to the sentencing procedure in Evans’s case. 

Because the deferential standard of review applies here, and the

state court did not address retroactivity, this court will not

address the question of whether the amendment was applied

retroactively. See Gray v. Brady, 592 F.3d 296, 300-01 (1st Cir.

2010).

To succeed on a petition under § 2254 challenging the state

court’s legal conclusions, a petitioner must show that “the state

court’s decision ‘was contrary to, or involved an unreasonable

application of, clearly established Federal law, as established

by the Supreme Court of the United States.’”1 Abrante v. St.

Amand, 595 F.3d 11, 15 (1st Cir. 2010) (quoting § 2254(d)(1)). 

“[A] state-court decision is contrary to clearly established

1The New Hampshire Supreme Court stated that it was deciding

the ex post facto issue under the New Hampshire Constitution’s

prohibitions against ex post facto laws, which were more

protective than the Federal Constitution. Evans, 154 N.H. at

148-49. “[W]e infer that the federal claim was considered if the

state court rejects a counterpart state claim and then cites to a

case holding that the federal constitution provides no greater

protection.” White v. Coplan, 399 F.3d 18, 23 (1st cir. 2005). 

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federal law if the state court employs a rule that contradicts an

existing Supreme Court precedent or it if reaches a different

result on facts materially indistinguishable from those of the

controlling Supreme Court precedent.” Janosky v. St. Amand, 594

F.3d 39, 47 (1st Cir. 2010). “A state-court decision constitutes

an unreasonable application of clearly established federal law if

it identifies the correct rule, but applies that rule

unreasonably to the facts of the case sub judice.” Id.

A. Contrary to Clearly Established Federal Law

Evans concedes that no Supreme Court case presents

materially indistinguishable facts. Instead, he argues that the

Supreme Court has established an analysis for ex post facto

claims that requires a different result from that reached by the

New Hampshire Supreme Court. See Williams v. Matesanz, 230 F.3d

421, 425 (1st Cir. 2000) (overruled on other grounds by

McCambridge v. Hall, 303 F.3d 24, 37 (1st Cir. 2002)). In

particular, Evans argues that when considering an ex post facto

claim the Supreme Court examines whether application of the new

law created a significant risk that the defendant would be

subject to increased punishment. He cites Garner v. Jones, 529

U.S. 244 (2000); Lynce v. Mathis, 519 U.S. 433 (1997), and Cal.

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Dep’t of Corrs. v. Morales, 514, U.S. 499 (1995), along with

several lower court decisions, in support of his theory. 

Garner and Morales addressed ex post facto challenges to

changes in parole rules. In Garner, the Supreme Court noted the

difficulty of evaluating the ex post facto effect of changes in

parole rules, limited its analysis to that context, and explained

Morales in the same context. 529 U.S. at 250-54. The change in

Florida law considered in Lynce is not analogous to the amendment

to RSA 651:58, I, which is at issue in this case. 

In Lynce, the Supreme Court considered whether a change in

Florida law that cancelled early release credits for certain

prisoners violated the Ex Post Facto Clause. 519 U.S. at 435. 

The petitioner had been released, based on early release credits,

and then was rearrested and returned to prison after the new law

retroactively cancelled his credits. Id. at 435-36. The Court

rejected the warden’s argument that because the credits were

granted only to relieve prison overcrowding, cancellation of the

credits did not affect the statutory penalty for the crime. Id.

at 446-47. Not surprisingly, the Court concluded that the

retroactive application of the Florida law, which cancelled the

petitioner’s credits after he had been released from prison,

increased his punishment and violated the prohibition against ex

post facto laws. Id. at 441 & 449. 

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The Supreme Court recognized that “[r]etroactive changes in

laws governing parole of prisoners, in some instances, may be

violative of [the prohibition against ex post facto laws].”

Garner, 529 U.S. at 250 (citing Lynce, 519 U.S. at 445-46). As

such, the cases Evans cites involved the ex post facto potential

for parole changes, and the Supreme Court was careful to explain

the parole rule context of its analysis. Because of the subject

matter, those cases differ substantially from Evans’s ex post

facto challenge to the amended version of RSA 651:58, I.

Evans has not shown that the cited cases provide Supreme

Court precedent for an ex post facto analysis in the context of

his case. Therefore, Evans has not established that the state

court’s decision, which relied on a different analysis, is

contrary to clearly established federal law as determined by the

Supreme Court. 

B. Unreasonable Application of Federal Law

Evans also contends that the New Hampshire Supreme Court’s

decision is based on an unreasonable application of federal law. 

He contends that the New Hampshire Supreme Court’s failure to

find a violation of the prohibition against ex post facto laws

was an unreasonable application of the ex post facto analysis, as

required by the Supreme Court in Garner, Lynce, and Morales. 

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In Evans’s case, the New Hampshire Supreme Court followed

the analysis used by the Seventh Circuit in assessing the ex post

facto implications of an amendment to the PROTECT ACT, 18 U.S.C.

§ 3742(e)(4), which changed the appeals court’s sentence review

from “due deference” to the district court’s decision to a de

novo standard.2 United States v. Mallon, 345 F.3d 943, 945 (7th

Cir. 2003). In Mallon, the district court imposed a sentence

below the Guideline range. The government appealed the sentence,

and an issue arose on appeal as to whether deferential review or

the new de novo standard would apply. Id. The defendant argued

that application of the new de novo standard on appeal would

violate the ex post facto prohibition because it would alter the

consequences of the crime he had committed before the change in

the review standard was enacted.3 Id. at 946.

In addressing the ex post facto challenge, the Seventh

Circuit relied on Dobbert v. Florida, 432 U.S. 282 (1977), and

Beazell v. Ohio, 269 U.S. 167 (1925). Mallon, 345 F.3d at 946-

47. The court noted that the change in the PROTECT ACT did “not

2The New Hampshire Supreme Court relied on federal law as

instructive in the area of ex post facto challenges. Evans, 154

N.H. at 149.

3Specifically, the defendant argued that the change in the

review standard effectively meant that instead of a sentence

imposed by the judge in his case, his sentence would be imposed

by a panel of appellate judges.

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change the statutory penalties for crime, affect the calculation

of the Guidelines range, or alter the circumstances under which

departures are permitted.” Id. at 346. Instead, the new law

merely “change[d] who within the federal judiciary makes a

particular decision, but not the legal standards for that

decision.” Id. The court concluded that “[p]rocedural

innovations that don’t tinker with substance as a side effect are

compatible with the ex post facto clause.” Id.

In Dobbert, between the time the defendant murdered two of

his children and the date his trial was scheduled to begin,

Florida changed its procedures for imposing the death penalty,

from a presumption of the death penalty unless a majority of the

jury recommended mercy to a separate sentencing procedure decided

by the judge, and if a death sentence was imposed, automatic

review by the Florida Supreme Court. 432 U.S. at 288. The

defendant argued that the change implicated the prohibition

against ex post facto laws because it deprived him of “a

substantial right to have the jury determine, without review by

the trial judge, whether that penalty should be imposed.” Id. at

292. The Supreme Court, in explaining its precedent, stated that

the prohibition against ex post facto laws does not limit “‘the

legislative control of remedies and modes of procedure which do

not affect matters of substance.’” Id. at 293 (quoting Beazell

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v. Ohio, 269 U.S. 167, 171 (1925)). The Court then explained

that the change in the Florida law “simply altered the methods

employed in determining whether the death penalty was to be

imposed; there was no change in the quantum of punishment

attached to the crime.” Id. at 294. For that reason, the Court

concluded that the change was “clearly procedural” and did not

offend the prohibition against ex post facto laws. Id. at 293-

94. 

Consonant with Supreme Court precedent in Dobbert, as

applied by the Seventh Circuit’s analysis in Mallon, the New

Hampshire Supreme Court determined in Evans’s case that RSA

651:58, I, as amended, was a procedural rule pertaining to who

makes the final sentencing decision and that it did not affect

Evans’s substantive rights. Evans, 154 N.H. at 151. In other

words, the amendment did not change the legal standards for the

sentencing decision. Id. 

Evans points out that providing a right of sentence review

to the state allowed the state a second chance to advocate for a

longer sentence, which often would result in an increase and in

his case did result in a longer sentence. Before the amendment,

no such risk existed. Although the state’s petition for review

did result in a longer minimum sentence for Evans, he does not

dispute that the sentence was still within the range of

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punishment that was applicable when he committed the crimes.4

Id. Therefore, the New Hampshire Supreme Court’s decision was

not an unreasonable application of federal law.

Conclusion

For the foregoing reasons, the respondent’s motion for

summary judgment (document no. 16) is granted. The petitioner’s

motion for summary judgment (document no. 22) is denied. The

petition for a writ of habeas corpus (document no. 1) is denied.

Evans may move for a certificate of appealability under 28

U.S.C. § 2253(c), with a supporting memorandum, on or before June

16, 2010. The Warden shall file a response within ten days after

the date the motion is filed. See Rule 11, Rules Governing §

2254 Cases. 

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

June 2, 2010

cc: David M. Rothstein, Esquire

Elizabeth C. Woodcock, Esquire

4In addition, the new version of RSA 651:58, I, was in

effect when Evans received his initial sentence with a minimum of

twenty-eight years. Evans is deemed to have had statutory notice

then of the change in the law, which gave the state the right to

seek review. Evans, 154 N.H. at 145. Therefore the law was not

changed after he began serving his sentence, as in Garner, Lynce,

and Morales.

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