Stow v. Northern NH Correctional Facility, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Weston J. Stow
v. 	Case No. 21-cv-156-JL
Warden, Northern New Hampshire
Correctional Facility
Report and Recommendation
Weston J. Stow, proceeding pro se, brings a petition for a
writ of habeas corpus under 28 U.S.C. § 2254, challenging the
decision of the New Hampshire Adult Parole Board to parole him
to consecutive sentences instead of releasing him from prison on
parole. 	Stow’s claims are based on his interpretation of RSA
651-A:6, II, which he acknowledges is contrary to the
interpretation given by the New Hampshire Supreme Court. 	He
asks this court to overrule the governing decisions of the New
Hampshire Supreme Court, apply his interpretation of RSA 651-
A:6, II, and grant his petition under § 2254.
Standard of Review
The § 2254 petition is before the court for preliminary
review under Rule 4 of the Rules Governing Section 2254 Cases.
Rule 4 requires the court to dismiss the petition “[i]f it
plainly appears from the petition and any attached exhibits that
the petitioner is not entitled to relief in the district court.”
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Therefore, under Rule 4, “[f]ederal courts are authorized to
dismiss summarily any habeas petition that appears legally
insufficient on its fact.” 	McFarland v. Scott, 512 U.S. 849,
856 (1994).
Background
In addition to his petition (document no. 2) and the
attached exhibits, Stow has filed an additional memorandum of
law in support of his petition (document no. 13) and a “Motion
Inviting the Court to Overrule Petition of Warden (State v.
Roberts)” (document no. 15). 	The court has considered Stow’s
filings together for purposes of preliminary review.
Stow was convicted in December of 1990, following a jury
trial, on one count of kidnapping, six counts of aggravated
felonious sexual assault, and one count of attempted aggravated
felonious sexual assault. 	State v. Stow, 136 N.H. 598, 600
(1993). 	He received sentences of three and a half to seven
years on the kidnapping conviction to be served concurrently
with two sentences of seven and one half to fifteen years for
aggravated felonious sexual assault. 	He received sentences of
seven and a half to fifteen years on the remaining five
convictions for aggravated felonious sexual assault to be served
consecutively. 	Doc. 2-1, at *71-73.
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Because Stow had to finish serving a sentence in
Massachusetts, he began serving his New Hampshire sentences in
2003. 	Stow states that he was granted parole on his concurrent
sentences, but instead of being released, he was paroled into
the sequence of consecutive sentences based on the prevailing
interpretation of RSA 651-A:6, II, that the statute does not
apply to eligibility for parole. 	See, e.g., Petition of Warden
(State v. Roberts), 168 N.H. 9 (2015).
Stow brought a petition for a writ of habeas corpus in
state court, arguing that he was entitled to release from prison
based on his interpretation of RSA 651-A:6, II, which is
contrary to the interpretation of the statute by New Hampshire
courts. 	The state moved to dismiss based on New Hampshire
Supreme Court cases that interpreted RSA 651-A:6, II to apply to
the calculation of the duration of parole not to eligibility for
parole. 	Doc. 2-1, at *76-78 (citing and discussing Blackstock
v. Exec. Asst., Adult Prole Bd, No. 2014-0720, 2-016 4103620
(N.H. June 9, 2016) and State v. Martin, no. 2018-0063, 2018 WL
4940852 (N.H. Sept. 14, 2018)). 	The state court granted the
motion to dismiss on the ground that the court agreed with the
interpretation of RSA 651-A:6, II provided by the New Hampshire
Supreme Court in Blackstock v. Exec. Asst., Adult Prole Board,
2016 WL 4103620. 	Doc. 2-1, at *21. 	The New Hampshire Supreme
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Court declined the notice of appeal. 	Doc. no. 8-1.
Stow has not been released from prison on parole. 	Instead,
he continues to serve the consecutive sentences.
Discussion
Before bringing a petition for a writ of habeas corpus
under § 2254, the petitioner must exhaust the remedies available
in state court. 	§ 2254(b). 	A petition may only be granted when
either the state court’s decision on the claim “was contrary to,
or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States” or the state court’s decision “was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 	§ 2254(d). 	When, as
here, a prisoner brings a petition under § 2254 in which he
challenges the legal basis for a state’s parole determination,
the court must focus first on whether the prisoner has alleged a
claim that implicates a federal right. 	Swarthout v. Cooke, 562
U.SA. 216, 221-22 (2011).
“There is no constitutional or inherent right of a
convicted person to be conditionally released before the
expiration of a valid sentence.” 	Greenholtz v. Inmates of
Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979). 	For that
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reason, prisoners do not have a “liberty right” to parole under
federal law. 	Ainsworth v. Stanley, 317 F.3d 1, 5 (1st Cir.
2002). 	Further, there is no right to parole under New Hampshire
law because parole is a privilege. 	Petition of Warden (State v.
Roberts), 168 N.H. 9, 14 (2015); see also Ainsworth, 317 F.3d at
5. 	Therefore, New Hampshire prisoners have no liberty interest
in parole, and the denial of parole before the expiration of the
prisoner’s full sentence does not implicate the prisoner’s due
process rights. 1 	Higgins v. Blaisdell, 2012 WL 2523404, at *6
(D.N.H. Feb. 1, 2012).
Stow brings no claim that he is in custody pursuant to a
state court judgment that is in violation of the federal
constitution or federal law. 	He does not argue that the state
court decisions are contrary to federal law or involved an
unreasonable application of federal law. 	Instead, his petition
is based entirely on his interpretation of New Hampshire law,
RSA 651-A:6, II, which has been rejected by the New Hampshire
Supreme Court. 	A § 2254 petition is legally insufficient when
it is based on state law rather than federal law. 	Wilson v.
Corcoran, 562 U.S. 1, 16 (2010) (“But it is only noncompliance
1 In contrast, once a prisoner is released on parole, he has
a liberty interest in the new status of conditional release.
Morrissey v. Brewer, 408 U.S. 471, 482 (1972).
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with federal law that renders a State’s criminal judgment
susceptible to collateral attack in the federal courts.”); see
also Spencer v. Pollard, 19-cv-561, 2019 WL 3281627, at *2 (E.D.
Wis. June 21, 2019); Haney v. Muniz, LA CV 17-05040VBF-JC, 2017
WL 3326448, at *1 (C.D. Cal. August 2, 2017); Garner v. Harry,
09-cv-656, 2009 WL 2370781, at *5 (W.D. Mich. July 30, 2009).
Stow’s motion asking the court to overturn the New
Hampshire Supreme Court’s decision in In re Warden (document no.
15) is similarly baseless. 	This court is bound by the New
Hampshire Supreme Court’s interpretation of state law and has no
authority to review that decision. 	Bradshaw v. Richey, 546 U.S.
74, 76 (2005). 	Therefore, the motion should be denied.
Conclusion
For the foregoing reasons, Stow’s petition for a writ of
habeas corpus pursuant to § 2254 should be dismissed under Rule
4 	because it is plain that he is not entitled to relief in this
court.
His motion inviting the court to overturn In re Warden
(document no. 15) should be denied.
Further, because Stow has not made a substantial showing of
the denial of a constitutional right, the court should not issue
a certificate of appealability. 	28 U.S.C. § 2253(c)(2).
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Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	Fed. R.
Civ. P. 72(b)(2). 	The fourteen-day period may be extended upon
motion. 	Failure to file objections within the specified time
waives the right to appeal the district court’s order. 	See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
June 15, 2021
cc: 	Weston J. Stow, pro se
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