UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

William J. Carey

v. Civil No. 09-cv-91-PB

Larry Blaisdell, Warden, 

Northern NH Correctional Facility

REPORT AND RECOMMENDATION

Before the court is pro se petitioner William J. Carey’s

petition for a writ of habeas corpus (document no. 1), 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; D.N.H. Local Rule (“LR”) 4.3(d) (authorizing

magistrate judge to conduct preliminary review of pro se

pleadings).

Standard of Review

Under LR 4.3(d)(2), when an incarcerated plaintiff or

petitioner commences an action pro se and in forma pauperis, the

magistrate judge conducts a preliminary review. In a preliminary

review, pro se pleadings are construed liberally, however

inartfully pleaded. See Erickson v. Pardus, 551 U.S. 89, 94

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(2007) (per curium) (following Estelle v. Gamble, 429 U.S. 97,

106 (1976), to construe pro se pleadings liberally in favor of

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.” Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st

Cir. 1997); see also Castro v. United States, 540 U.S. 375, 381

(2003) (courts may construe pro se pleadings to avoid

inappropriately stringent rules and unnecessary dismissals). 

The court must accept as true the plaintiff’s factual assertions,

Erickson, 551 U.S. at 94, and any inferences reasonably drawn

from them. See Centro Medico del Turabo, Inc. v. Feliciano de

Melecio, 406 F.3d 1, 5-6 (1st Cir. 2005). This review ensures

that pro se pleadings are given fair and meaningful

consideration.

Background

In 2006, Carey was sentenced to 31⁄2 - 7 years in prison on a

stalking conviction. One year of the minimum sentence was

suspended. The sentencing order and mittimus provides that the

suspension of Carey’s sentence is conditioned upon, among other

things, cooperation with a psychological evaluation, State v.

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Carey, Nos. 05-S-149 & 04-S-2562 (N.H. Super. Ct. Aug. 18, 2006). 

The sentencing order and mittimus also directs Carey, as a

condition of his sentence, to complete counseling and treatment

“as directed by the correctional authority . . . .” Id. Carey

is currently serving this sentence at the Northern New Hampshire

Correctional Facility (“NCF”).

On November 28, 2007, Carey filed his first petition for a

writ of habeas corpus under 28 U.S.C. § 2254, asserting a number

of claims relating to his trial and underlying conviction in

state court. His first petition remains pending in this court. 

See Carey v. Warden, Civ. No. 07-cv-380-SM. 

In February 2008, Carey appeared before the Adult Parole

Board (“Board”) for his first parole hearing. The Board’s

reasons for denying parole are not set forth in any document

included in the record before me, except as stated in the order

dismissing Carey’s state habeas corpus petition, see Ord. on

Resp. Mot. for Partial Recon. & Final Ord. on Pet. for Writ of

Hab. Corpus, Carey v. Blaisdell, No. 08-E-045 (N.H. Super. Ct.

Oct. 23, 2008) (hereinafter “State Habeas Order”). The court

found that the Board decided to deny parole until Carey completes

a mental health evaluation. Id. at 2. It is unclear from the

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record and Carey’s allegations whether the Board sua sponte

required Carey to complete the evaluation, or whether the

Corrections Department imposed this requirement first.

In response to the parole denial, Carey filed a petition for

a writ of habeas corpus in Coos County Superior Court, in which

he claimed, among other things, that the Board exceeded its

authority, denied him equal protection and due process, and

impermissibly withheld evidence from him. In an order issued on

August 20, 2008 dismissing almost all of the claims asserted in

the state habeas petition, the Superior Court directed NCF to

produce evidence to Carey. NCF filed a motion for partial

reconsideration on the evidence issue. Following a hearing on

offers of proof, on October 23, 2008, the Superior Court granted

NCF’s motion and dismissed Carey’s petition in its entirety. 

Carey filed a notice of discretionary appeal to the New Hampshire

Supreme Court (“NHSC”), and the NHSC declined the appeal. 

Carey thereafter filed this petition under 28 U.S.C. § 2254,

alleging claims arising out of the parole denial and the state

habeas proceeding. Construed liberally, the petition includes

the following federal claims:

(1) The Board violated Carey’s right to due process by

arbitrarily denying him parole. 

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(2) The Board violated Carey’s right to equal protection by

paroling other prisoners without releasing him. 

(3) The Superior Court violated Carey’s right to due process

by dismissing his state habeas petition without an

evidentiary hearing, due to a bias against Carey.

 Discussion

I. Second or Successive Petition

The first issue I must address is whether Carey’s petition

is a “second or successive” section 2254 petition that must be

dismissed under 28 U.S.C. § 2244, as amended by the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”). Section 2244

requires the district court to dismiss claims presented in a

“second or successive” section 2254 petition if they were

presented in a prior petition, 28 U.S.C. § 2244(b)(1), and to

dismiss new habeas claims asserted in second or successive

petitions unless, among other things, the petitioner has moved

for and obtained an order from a three-judge panel of the court

of appeals authorizing the district court to consider the new

petition, 28 U.S.C. § 2244(b)(3). 

Courts have “uniformly rejected a literal reading of Section

2244, concluding that a numerically second petition does not

necessarily constitute a ‘second’ petition for the purposes of

AEDPA.” Vasquez v. Parrott, 318 F.3d 387, 389 (2d Cir. 2003)

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(quotation omitted); see also United States v. Barrett, 178 F.3d

34, 44 (1st Cir. 1999). In the analogous case of petitions

challenging federal custody under 28 U.S.C. § 2255, the First

Circuit has noted that the “core of the AEDPA restrictions on

second or successive ... petitions is related to the longstanding

judicial and statutory restrictions embodied in the form of res

judicata known as the ‘abuse of the writ’ doctrine.” Barrett,

178 F.3d at 44. This doctrine bars a successive petition that

raises claims that could have been raised in an earlier petition,

unless there was a legitimate excuse for the omission. See

McCleskey v. Zant, 499 U.S. 467, 490, 494-95 (1991) (requiring

showing of cause and prejudice). 

The Second and Ninth Circuits have directed district courts

to treat a later habeas petition filed pro se as a motion to

amend an earlier pro se petition, see Fed. R. Civ. P. 15, not as

a separate, second habeas petition, if, as in this case, the

later petition was filed before final judgment on the first

petition. See Woods v. Carey, 525 F.3d 886, 890 & n.3 (9th Cir.

2008) (following Grullon v. Ashcroft, 374 F.3d 137, 140 (2d Cir.

2004). I need not take that step here, which would risk infusing

entirely new claims into a case where a summary judgment motion

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1Carey’s new petition arguably includes one claim not

directly related to parole or state habeas proceedings: namely,

NCF violated his “liberty interest” by housing him in medium

security housing since November 14, 2007, despite his minimum

security (“C2") classification. But see Sandin v. Connor, 515

U.S. 472, 484 (prison conditions do not give rise to due process

violation unless they constitute “atypical and significant

hardships” in relation to “the ordinary incidents of prison

life”). Carey’s claim regarding his housing challenges the

conditions of his confinement, not the fact or length of his

confinement. To the extent that this claim is raised in this

petition, I recommend its dismissal as it is not generally

cognizable in a habeas petition. Cf. Preiser v. Rodriguez, 411

U.S. 475, 494 (traditional purpose of habeas corpus is to

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is pending, see Carey v. Warden, No. 07-cv-380-SM (document no.

23), as there is a separate ground for finding that Carey’s new

petition is not second or successive. Carey’s earlier petition

challenges his trial and conviction on the stalking charge, while

the claims before me arise out of the parole denial and the state

habeas petition challenging the parole denial. Carey did not

abuse the writ by failing to raise these claims in his first

petition, as they had not yet arisen. See Crouch v. Norris, 251

F.3d 720, 725 (8th Cir. 2001) (habeas petition challenging parole

decision was not “second or successive” under § 2244 because

parole claim could not have been raised in first petition). 

Accordingly, Carey’s petition before me is not a “second or

successive” petition subject to dismissal under 28 U.S.C.

§ 2244.1

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challenge fact or length of confinement and to request speedier

release from confinement); Glaus v. Anderson, 408 F.3d 382, 387

(7th Cir. 2005) (“While the Supreme Court has left the door open

a crack for habeas corpus claims challenging prison conditions,

it has never found anything that qualified.”). 

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II. Custody & Exhaustion

To be eligible for habeas relief, Carey must show: (1) that

he is in custody; and (2) that he has either exhausted all of his

state court remedies or is excused from exhausting those remedies

because of an absence of available or effective state corrective

processes. See 28 U.S.C. § 2254(a) & (b); see also Adelson v.

DiPaola, 131 F.3d 259, 261 (1st Cir. 1997) (explaining exhaustion

principle). Carey’s imprisonment satisfies the custody

requirement.

A petitioner’s remedies in New Hampshire are exhausted when

the NHSC has had an opportunity to rule on the claims. See

Lanigan v. Maloney, 853 F.2d 40, 42 (1st Cir. 1988). “In order

to exhaust a claim, the petitioner must ‘present the federal

claim fairly and recognizably’ to the state courts, meaning that

he ‘must show that he tendered his federal claim in such a way as

to make it probable that a reasonable jurist would have been

alerted to the existence of the federal question.’” Clements v.

Maloney, 485 F.3d 158, 162 (1st Cir. 2007) (internal quotations

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and citation omitted). A habeas petitioner may fairly present a

claim by, among other things: “(1) citing a provision of the

federal constitution; (2) presenting a federal constitutional

claim in a manner that fairly alerts the state court to the

federal nature of the claim; (3) citing federal constitutional

precedents; . . . [or] (4) claiming violation of a right

specifically protected in the federal constitution.” Id.; cf.

Martens v. Shannon, 836 F.2d 715, 717 (1st Cir. 1988) (simply

reciting facts underlying state claim, which might support either

state or federal claim, is inadequate to constitute fair

presentation of federal claim to state court). 

 Carey has filed a number of documents with his petition that

are considered to be part of the petition “for all purposes.” 

Fed. R. Civ. P. 10(c). The documents shedding light on

exhaustion include Carey’s Notice of Discretionary Appeal to the

NHSC (“Notice”) and certain attachments filed with the Notice,

consisting of Carey’s filings in the Superior Court habeas

proceeding. Reviewing these filings and applying the appropriate

standard, I conclude that Carey has demonstrated exhaustion of

his equal protection and due process claims relating to the

parole denial and the state habeas proceeding. See Notice, sect.

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14, at 1, 3 (alleging Board’s due process and equal protection

violations); Att. R to Notice, “(3rd) Petitioner’s Proposed

Exhibits,” at 1-2 (citing federal case in alleging Board’s equal

protection violation); Notice, sect. 14, at 1-3; Att. S to

Notice, “Petitioner’s Motion for Evidentiary Hearing,” at 1

(alleging Superior Court’s bias and violation of due process

right to evidentiary hearing). 

III. Due Process Challenge to Parole Denial (Claim I)

In his first claim challenging the parole denial, Carey

alleges that he suffered a violation of his right to due process

under the Fourteenth Amendment when the Board denied him parole. 

Carey’s claim has both substantive and procedural due process

aspects. The allegedly unfair aspects of the process include the

Board’s institutional bias (Board and N.H. Department of

Corrections are a “single entity,” as “parole board staff are

NHDOC employees”), Notice sect. 14 at 2, and the Board’s failure

to provide him with all documents that it considered when it made

its decision. His additional assertions regarding the

arbitrariness of the decision, the Board’s improper motives, and

its failure to consider relevant factors may be liberally

construed as substantive due process allegations. 

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The Due Process Clause prohibits deprivations of life,

liberty, or property without due process of law. See U.S. Const.

amend. XIV, § 1. Carey cannot prevail on a habeas corpus claim

challenging the parole denial based on allegations that he was

denied procedural due process. To prevail on a due process claim

regarding the adequacy of the Board’s procedures, Carey must show

that he suffered a deprivation of a liberty interest arising

directly from the U.S. Constitution or from an expectation or

interest created by state law or policy. See Wilkinson v.

Austin, 545 U.S. 209, 221 (2005). It is well-settled that there

is no state-created liberty interest in parole in New Hampshire,

and no freestanding right to parole for incarcerated prisoners. 

See Ainsworth v. Risley, 244 F.3d 209, 216-17 (1st Cir. 2001),

vacated and remanded on other grounds sub nom. Ainsworth v.

Stanley, 536 U.S. 953 (2002); see also Greenholtz v. Inmates of

Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979) (convicted

person has no right to be conditionally released, on parole or

otherwise, before expiration of valid sentence). 

Carey’s substantive due process claim regarding the

unfairness of the parole denial must similarly be dismissed. 

“The substantive due process guarantee functions to protect

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individuals from particularly offensive actions on the part of

government officials, even when the government employs facially

neutral procedures in carrying out those actions.” Pagan v.

Calderon, 448 F.3d 16, 32 (1st Cir. 2006). The substantive due

process doctrine also requires a plaintiff to prove that a

protected liberty interest was at issue. See id. at 29

(plaintiff must show that defendants’ acts shocked conscience and

deprived plaintiff of life, liberty, or property). 

At the root of Carey’s due process claims against the Board

is his assertion that the Board acted in bad faith, in excess of

its authority under state law, and without weighing all relevant

factors under state law. Carey cites to New York state court

decisions interpreting New York law to support his request for

relief. A writ of habeas corpus under federal law, 28 U.S.C.

§ 2254, however, may be granted “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. § 2254(a). Federal habeas relief

“does not lie for errors of state law.” Estelle v. McGuire, 502

U.S. 62, 67-68 (1991); cf. Pagan, 448 F.3d at 32 (bad faith

violations of state law do not invariably amount to conscienceshocking behavior for purposes of substantive due process). 

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2In connection with his due process claim, Carey asserts

that the Board altered his sentence to make completion of a

psychological evaluation mandatory during his incarceration. 

Nothing in the record, however, suggests that the Board’s

decision to deny parole pending Carey’s completion of a

psychological evaluation had any legally binding effect on the

conditions of Carey’s sentence. Cf. Baker v. Cunningham, 128

N.H. 374, 381, 513 A.2d 956, 961 (1986) (habeas petitioner’s

claim that Board’s decision to defer parole consideration for one

year effectively lengthened his sentence was patently wrong and

properly dismissed).

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Here, the Superior Court properly interpreted state law in

observing that the Board has broad latitude in denying parole,

see State Habeas Order at 2, unrestricted by the criteria set

forth in the parole statute and regulations. See Knowles v.

Warden, 140 N.H. 387, 389, 666 A.2d 972, 974-75 (1995). The

pertinent regulations authorize the Board to consider, among

other things, the inmate’s personality and evaluations from

mental health agencies and the department of corrections in

making parole decisions, see, e.g., N.H. Code Admin. R. Par

301.02(a) & (I), and to deny parole for such “reasons as the

Board deems pertinent to the case.” Id. at Par 302.01(e). These

factors, in light of Carey’s sentence, demonstrate that the Board

did not exceed its authority in denying parole until Carey

completes a psychological evaluation.2 Furthermore, while an

allegation of a board member’s bias may raise a claim under state

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law, see Winslow v. Holderness Planning Bd., 125 N.H. 262, 267,

480 A.2d 114, 116 (1984) (applying state constitutional

requirement of judicial impartiality to evaluate bias claim for

board acting in quasi-judicial capacity), an allegation regarding

the Board’s staff is a separate issue. No state law or rule

requires the staff to be unaffiliated with the Department of

Corrections. Similarly, as the Superior Court noted in the State

Habeas Order at 2, no state law or rule requires the Board to

tender all documents that it considered, particularly where the

decision was based on an undisputed fact (the failure to complete

a psychological evaluation). 

Therefore, I recommend dismissal of Carey’s first claim,

alleging a due process violation resulting from an arbitrary

parole denial. The claim, resting on a nonexistent liberty

interest and an inaccurate view of the Board’s authority under

state law, is not cognizable under 28 U.S.C. § 2254.

IV. Equal Protection (Claim II)

Carey has also alleged that he suffered a Fourteenth

Amendment equal protection violation relating to the denial of

parole. Carey’s equal protection claim, liberally construed, is

that the Board has treated him differently than other prisoners

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by paroling them, while withholding parole from him until he

completes a psychological evaluation, without any reason for the

differential treatment. 

A preliminary question is whether this claim falls within

the court’s habeas corpus jurisdiction. This court has recently

recommended dismissal of a claim challenging parole procedures on

the ground that the claim could be filed under 42 U.S.C. § 1983. 

See Cossette v. State, No. 08-cv-21-JL, 2009 WL 702778, at *5

(D.N.H. March 13, 2009) (citing Wilkinson v. Dotson, 544 U.S. 74

(2005)). In Dotson, the Supreme Court considered whether

prisoners requesting new parole hearings could file claims

challenging the constitutionality of parole procedures under 28

U.S.C. § 1983, or whether their claims fell within the exclusive

province of habeas corpus. The Court determined that the claims

for relief were “distant from [the] core” of habeas jurisdiction

as they would not necessarily result in speedier release if

successful, or imply the invalidity of continued confinement. 

544 U.S. at 82. Dotson, therefore, indicates that section 1983

and habeas jurisdiction may be concurrent for certain claims that

lie at the margins of habeas jurisdiction. Id.

In Dickerson v. Walsh, 750 F.2d 150, 153 (1st Cir. 1984),

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the First Circuit determined that a claim challenging the

constitutionality of procedures governing state appellate review

of state habeas petitions could proceed as a federal habeas

corpus claim, even though release would not necessarily be the

remedy for a prevailing claim. Because release was the “ultimate

relief sought,” and in the interest of comity with the state

courts -- served by the habeas requirement that claims be

exhausted -- the First Circuit concluded that the claim was

cognizable in a federal habeas petition. See id. at 154; see

also Docken v. Chase, 393 F.3d 1024, 1031 (9th Cir. 2004)

(prisoner challenging parole review procedures and seeking only

equitable relief could file claim for habeas relief, as equitable

relief “could” potentially affect duration of confinement). 

In this case, as in Dickerson and Docken, a remedy for the

equal protection claim relating to the Board’s hearing could

affect the duration of Carey’s confinement. Accordingly, Carey’s

equal protection challenge to the Board’s decision is cognizable

in habeas corpus. Carey’s allegations on his equal protection

claim regarding whether any other paroled prisoner was similarly

situated to him in any pertinent respect may be described as

sketchy at best, but construing them liberally, I am willing to

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allow Carey’s equal protection claim to survive my preliminary

review. As Carey is in custody and has exhausted this claim, the

respondent should be given the opportunity to respond to it. I

will, therefore, direct that this claim be answered in an order

issued simultaneously with this Report and Recommendation

(hereinafter “Simultaneous Order”).

V. Due Process Challenge to Superior Court’s Bias (Claim III)

Carey’s final claim is that he was denied due process in

Superior Court on his state habeas petition, specifically, that

the trial judge denied his motion for an evidentiary hearing and

dismissed his petition “in line with the unofficial policy of

Coos County Superior Court.” Notice, Sect. 14 at 2. I construe

this claim to be that the Superior Court was unconstitutionally

biased against him. 

With the exception of the First Circuit in Dickerson, 750

F.2d at 153, every federal circuit that has addressed the issue

has concluded that claims challenging deficiencies in state court

collateral proceedings are not cognizable in habeas corpus. See

Mathison v. Cunningham, Civ. No. 98-457-M, 2000 U.S. Dist. LEXIS

16448, at *8 (D.N.H. Oct. 19, 2000) (citing cases). Following

Dickerson, I conclude that Carey’s claim of Superior Court bias

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is cognizable in habeas corpus, even though its successful

litigation would not necessarily lead to Carey’s release from

confinement. As in Dickerson, Carey’s ultimate goal is release,

and, as in Docken, 393 F.3d at 1031, equitable relief could

potentially result in speedier release if Carey prevails. 

To the extent that Carey is asserting a separate due process

claim of an entitlement to an evidentiary hearing in a state

court habeas proceeding, I recommend dismissal of this aspect of

the due process challenge to the Superior Court proceeding. See

McGuire, 502 U.S. at 67-68 (state law errors are not grounds for

habeas relief under 28 U.S.C. § 2254). The trial court in New

Hampshire has discretion to determine whether or not to grant an

evidentiary hearing on a habeas petition under New Hampshire law. 

See Thomas v. Finger, 141 N.H. 134, 137, 679 A.2d 567, 569

(1996). The Superior Court denied Carey’s motion for an

evidentiary hearing, opting instead to permit Carey to present

his case via videoconferenced participation in an offers of proof

hearing. Whether the Superior Court abused its discretion, apart

from any question of unconstitutional bias, is not properly

before this court under its habeas corpus jurisdiction.

 I have found that Carey has exhausted his due process claim

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alleging that the Superior Court was unconstitutionally biased

against him. Therefore, as I have also concluded that the claim

is cognizable under 28 U.S.C. § 2254, I conclude that it may be

served on the respondent, and I will so direct in my Simultaneous

Order.

Conclusion

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

in custody in violation of the Constitution or laws or treaties

of the United States.” 28 U.S.C. § 2254(a). Carey’s first claim

that the Board violated his right to due process should be

dismissed for the reasons stated above. Carey’s second claim

that the Board violated his right to equal protection, and his

third claim that the Superior Court was biased against him, may

be served upon the respondent. I will direct, in my Simultaneous

Order, that those claims be served on the respondent. 

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 Carey disagrees with the

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

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objection within ten (10) days of receipt of this Report and

Recommendation, or by properly moving 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 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). 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: June 4, 2009

cc: William J. Carey, pro se

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