UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Donald C. Beatty

v. Civil No. 07-cv-395-JM

Richard Gerry, Warden,

New Hampshire State Prison for Men

O R D E R

Before the Court is Donald Beatty’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

(“§ 2254 Rules”).

Background

Donald Beatty is an inmate at the New Hampshire State

Prison. In 1999, Beatty plead guilty to, and was sentenced to

prison terms for, attempted felonious sexual assault, escape,

receiving stolen property, and burglary offenses. Beatty first

became eligible for parole on February 15, 2006. 

Beatty’s initial parole hearing was held on January 26,

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2006. After the hearing, the parole board conditionally approved

Beatty’s request for parole, effective February 15, 2006. The

document notifying Beatty that his application for parole had

been approved set out conditions to be imposed on Beatty during

his release on parole and also stated: “If you are approved for

parole and receive a disciplinary before release, you will have a

reconsideration hearing and your release may be delayed or

rescinded.” Pursuant to the administrative regulations governing

grants of parole, Beatty’s parole plan was then forwarded to a

parole officer to be investigated prior to final approval.

On February 13, 2006, Probation and Parole Officer Jason

Smith notified the parole board that the parole plan submitted by

Beatty included an unacceptable place of residence, due to its

proximity to children, a playground, and a school in the area. 

As a result, the parole plan was rejected and Beatty was not

released on parole.

On October 7, 2006, a disciplinary report was filed against

Beatty for allegedly exposing himself in the prison cafeteria. 

Due to being improperly processed, the disciplinary report was

not prosecuted, and instead was placed on file without a guilty

finding. Beatty was told that the report would not affect him

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adversely. Beatty received no other disciplinary reports in

2006. 

Based upon the disciplinary report that had been filed

without a finding, the parole board held a reconsideration

hearing on November 9, 2006. During the reconsideration hearing,

the parole board recharacterized the hearing as a review hearing

once they were advised that the disciplinary report in question

had been dropped. At the hearing, the parole board considered a

memorandum and recommendation regarding the exposure incident

submitted by the staff of the sexual offender program at the

prison, advising that Beatty complete the prison’s sexual

offender relapse program prior to being released from custody. 

Based on this information, the parole board rescinded it’s

previous grant of parole. The parole board agreed to rehear

Beatty’s petition for parole after he completed the relapse

program. 

On October 27, 2006, Beatty filed a petition for a writ of

habeas corpus in the Merrimack County Superior Court challenging

the rescission of parole. On December 26, 2006, the Court denied

the petition. Beatty filed a timely notice of appeal with the

New Hampshire Supreme Court. That Court declined the appeal on

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April 2, 2007 and denied Beatty’s motion for reconsideration of

the declination on May 1, 2007. This petition followed.

Beatty now claims that:

1. The parole board improperly convened a reconsideration

hearing based on a disciplinary report Beatty received for which

no guilty finding was entered;

2. The reconsideration/review hearing held by the parole

board was, in fact, a parole revocation hearing as Beatty had

already been approved for parole. However, Beatty was not

afforded all of the procedural protections a parolee is entitled

to at a revocation hearing; and

3. The parole board acted without authority in reversing

its original decision to authorize his parole, and thus, his

continued incarceration is unconstitutional. 

Discussion

It is well-settled that a convicted person has no

constitutional right to be conditionally released, on parole or

otherwise, before the expiration of a valid sentence. See

Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1,

7 (1979). A valid conviction, with all its procedural

safeguards, extinguishes that liberty right. See id.; see also

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Meachum, 427 U.S. at 224. A right to parole under the Due

Process Clause exists only if such right is created by State law. 

See Sandin v. Conner, 515 U.S. 472, 483-84 (1995); Hamm v.

Latessa, 72 F.3d 947, 954-55 (1st Cir. 1995); Brooker v. Warden,

No. 98-466-JD, 1999 WL 813893, at * 2 (D.N.H. June 22, 1999). 

In New Hampshire, a convicted inmate has no State-created

liberty interest in parole. See Jago v. Van Curen, 454 U.S. 14,

19-21 (1981); Ainsworth v. Risley, 244 F.3d 209, 216-17 (1st Cir.

2001); Knowles v. Warden, 140 N.H. 387, 389, 666 A.2d 972, 974-75

(1995). “In determining whether state law provides a protectable

liberty interest in parole, federal courts are bound by the

state’s interpretation of applicable state law unless that

construction or application violates federal law.” Brooker, 1999

WL 813893, at * 2.

 The applicable New Hampshire parole laws are found in N.H.

Rev. Stat. Ann. (“RSA”) § 651-A. The statute provides that:

A prisoner may be released on parole upon the 

expiration of the minimum term of his sentence, 

[as adjusted by other statutory provisions], 

provided that there shall appear to the adult 

parole board, after having given the notice 

required in RSA 651-A:11, to be a reasonable 

probability that he will remain at liberty without 

violating the law and will conduct himself as a 

good citizen. Any prisoner so released shall be 

given a permit by the board to be at liberty from 

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prison during the unexpired portion of the maximum 

term of his sentence.

RSA 651-A:6, I (2007) (emphasis added). Under authority provided

by RSA 651-A:4, III, the parole board has adopted rules

pertaining to parole policy as follows:

Parole shall be considered a privilege, something 

to be earned rather than automatically given, and 

any release prior to the maximum term shall be 

made only upon careful and lawful consideration. 

An inmate shall not be granted parole unless the 

board finds a reasonable probability that the 

inmate will remain at liberty without violating 

any law and will conduct himself as a good 

citizen, pursuant to criteria in [N.H. Code Admin. 

R.] Par 301.02. 

N.H. Code Admin. R. Par 301.02. 

The New Hampshire Supreme Court has repeatedly held that the

parole board has broad discretion in its parole decisions and

that the Board is not mandated to grant parole to an inmate,

although he may meet certain conditions or criteria. See

Knowles, 140 N.H. at 389, 666 A.2d at 974-75; Cable v. Warden,

140 N.H. 395, 398, 666 A.2d 967, 969 (1995); Baker v. Cunningham,

128 N.H. 374, 381, 513 A.2d 956, 960 (1986). Simply put, “[t]he

possibility of parole is not a right to liberty conferred by New

Hampshire state law.” Brooker, 1999 WL 813893 at * 4. 

Absent a constitutional right to parole, or a liberty

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interest in the grant of parole, there is no constitutional due

process violation for a denial of parole because there is no due

process right to be granted parole. See Greenholtz, 442 U.S. at

7; Brooker, 1999 WL 813893 at *4. Accordingly, such a claim must

be dismissed, as it is not cognizable in a federal habeas

petition.

Here, Beatty argues that the parole board’s decision

approving his parole granted him a liberty interest in being

released on parole such that the parole decision could not be

rescinded absent a full parole revocation hearing complete with

the panoply of rights that a parolee attains once released from

custody. That is not the situation here. The approval of

Beatty’s request for parole constituted only a conditional grant

of parole. See N.H. Code Admin. R. Par 401.04 (“The parolee’s

plan shall be forwarded to the supervising parole office for

investigation and approval. The executive assistant shall notify

the inmate of any problems with the parole plan that shall be

resolved prior to release.”). The petitioner may not be released

on parole until the parole officer has the opportunity to

investigate the petitioner’s parole plan to determine its

suitability and accuracy. The petitioner acquires no liberty

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interest in parole status until his parole plan is approved, and

he is actually released from incarceration.

Beatty was not released on parole because his parole plan

was not approved by his parole officer. Pursuant to New

Hampshire’s administrative regulations, problems with the parole

plan must be resolved before an inmate can be released on parole. 

See id. Beatty did not resolve the issues with his parole plan,

and that is why he was not released on February 15, 2006. He

apparently failed to resolve the issue prior to October 26, 2006

when he is alleged to have been involved in an indecent exposure

incident in the prison cafeteria that resulted in the issuance,

if not the prosecution, of a disciplinary report. Beatty argues

that the alleged indecent exposure should not adversely impact

him in any way because the disciplinary report generated after

the incident was filed without a finding of guilty. 

Nothing in the parole regulations, however, prevents the

parole board from considering whether or not to revisit their

previous grant of parole based on an inmate’s behavior in

custody, regardless of whether or not formal disciplinary action

was taken against an inmate. To the contrary, the parole

regulations require the parole board to evaluate an inmate’s

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behavior during his custody when making a parole determination,

whether or not that behavior resulted in a disciplinary report. 

Because Beatty’s parole plan was rejected based on a problem with

his residence, and that problem was not corrected or resolved, he

did not receive parole, but remained in the custody of the

prison. The parole board properly exercised its authority to

make decisions based on Beatty’s institutional behavior during

his incarceration. Criteria to be considered by the parole board

in making it’s evaluation and deciding Beatty’s ongoing

suitability for parole include, among other things:

(a) The inmate’s personality, maturity, sense of 

responsibility, and any developments in personality 

which might promote or hinder the conformity to the 

law;

(b) The appropriateness and adequacy of his parole 

plan, as determined by the supervising officer during 

the investigation requested by the board prior to 

release, including:

. . . 

(2) The type of residence, neighborhood, and 

community in which the inmate intends to live and 

work;

. . . 

(d) The inmate’s criminal record, including the nature 

and circumstances of criminal activity, and the recency 

and frequency of previous offenses;

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. . . 

(h) The inmate’s conduct within the institution, 

including, but not limited to, 

(1) The disciplinary record during incarceration; 

and

(2) Evidence of self-improvement through the 

various institutional programs and, specifically 

programs which addressed problems or issues that 

contributed to the inmate’s prior criminal 

activity.

(I) Evaluations and recommendations received by the 

board from the department of corrections, courts, and 

relevant social service, mental health, and criminal 

justice agencies.

. . . 

N.H. Code Admin. R. Par 301.01 (emphasis added). The

administrative regulations governing parole also identify the

following situations in which denying parole to an inmate is

mandatory:

[T]he Board shall deny parole if, in the judgment of a 

majority of the hearing panel: 

(a) There exists a reasonable probability that the

individual will not conform to the conditions of parole

and/or the laws of the state of New Hampshire; 

(b) Continued treatment, mental or psychological care, 

or vocational or other training within the institution 

would substantially improve the inmate’s capacity to 

lead a law-abiding life upon release at a future date;

. . . 

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(e) Lack of a parole plan that meets the criteria in 

[N.H. Code Admin. R.] Par 301.02(b)(1)-(3).

N.H. Code Admin. R. Par 302.

Contrary to Beatty’s assertion that the parole board lacked

authority to rescind it’s original authorization of his parole

without providing him with the procedures attendant to a full

parole revocation hearing, an examination of the regulations as a

whole makes clear that the parole board is authorized to take a

continuing role in evaluating the appropriateness of an inmate

for parole at any time prior to his satisfaction of the

conditions of his release. Further, the regulations mandate that

the parole board deny parole in a variety of situations, several

of which are evident here. Specifically: (1) Beatty never

provided the parole board with a parole plan that contained an

acceptable residence, and (b) DOC officials found, and the parole

board agreed, that continued treatment in the sexual offender

relapse program would substantially improve Beatty’s chance of

maintaining parole status successfully once he was released. 

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

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of the United States.” 28 U.S.C. § 2254(a). Because Beatty has

neither a liberty interest in being granted parole, nor a liberty

interest in being released upon the parole board’s conditional

authorization of parole, he has failed to allege that he ever

achieved parole status, and thus, that he ever obtained the

liberty interest that attaches to actually being released on

parole. I find that Beatty’s challenge is in fact a challenge to

the denial of his parole. Such a claim is not cognizable in a

federal habeas action, and accordingly, the petition is

dismissed.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: May 13, 2008

cc: James W. Dennehy, Esq.

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