Gearhart v. NH Department of Corrections, Commissioner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Kevin (Kelly) Grant Gearhart
v. 	Civil No. 18-cv-104-PB
Helen E. Hanks, Commissioner of
New Hampshire Department of Corrections
REPORT AND RECOMMENDATION
Petitioner, Kelly Gearhart,1 has petitioned this court for a
writ of habeas corpus (Doc. No. 1), challenging Gearhart’s civil
commitment to the New Hampshire State Prison (“NHSP”) Secure
Psychiatric Unit (“SPU”), pursuant to a judgment of not guilty
by reason of insanity to criminal charges, after her December
2016 plea to that effect was accepted.2 	See State v. Gearhart,
Nos. 216-2016-cr-1040, 216-2016-cr-1051 (N.H. Super. Ct.,
Hillsborough Cty. N., Dec. 21, 2016). 	Before the court are
Gearhart’s motion (Doc. No. 5), regarding the statute of
limitations, and respondent’s motion to dismiss (Doc. No. 8).
A state court order, filed as an exhibit to respondent’s
motion to dismiss, states that Gearhart was allowed to withdraw
her plea of not guilty by reason of insanity on March 21, 2018;
1Petitioner is a transgender woman, and prefers the name
“Kelly” to her given name.
2See N.H. Rev. Stat. Ann. §§ 651:8-b; 651:9-a; 651:11-a.
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that the trial court vacated her plea on that date; and that
Gearhart was allowed to enter a new plea of guilty. 	See
Gearhart v. State, No. 217-2018-cv-00098 (N.H. Super. Ct.,
Merrimack Cty., Mar. 28, 2018) (Doc. No. 8-3, at 2). 	The state
court order also states that Gearhart has been released from SPU
and from the NHSP. 	See id.; see also Notice of Change of
Address (Doc. No. 6).
Gearhart’s release and the order vacating her plea of not
guilty by reason of insanity moot this petition challenging her
confinement in SPU pursuant to that plea. 	The district judge
should thus grant respondent’s motion to dismiss (Doc. No. 8).
Gearhart’s petition (Doc. No. 1) and motion regarding the
statute of limitations (Doc. No. 5) should be denied as moot.
The district judge should decline to issue a certificate of
appealability, as Gearhart has failed to make a substantial
showing of the denial of a constitutional right. 	See 28 U.S.C.
§ 2253(c)(2); Rule 11, Rules Governing Habeas Corpus Cases Under
Section 2254; First Cir. LR 22.0; see also Slack v. McDaniel,
529 U.S. 473, 483-84 (2000).
Conclusion
For the foregoing reasons, the district judge should grant
respondent’s motion to dismiss (Doc. No. 8) and deny as moot
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both Gearhart’s petition (Doc. No. 1) and her motion (Doc. No.
5) as to the statute of limitations. 	The district judge should
decline to issue a certificate of appealability.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See 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
April 27, 2018
cc: 	Kelly Gearhart, pro se
Elizabeth C. Woodcock, Esq.
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