Tito v. NH State Prison for Men

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Albert Tito
v. 	Case No. 18-cv-1113-JD
Northern New Hampshire Correctional
Facility Warden
REPORT AND RECOMMENDATION
Before the court for preliminary review is pro se
petitioner Albert Tito’s petition for writ of habeas corpus
(Doc. No. 1) filed pursuant to 28 U.S.C. § 2241. 	The matter is
before the court to determine whether the petition asserts
facially valid claims. 	See 28 U.S.C. § 2243; Rule 4 of the
Rules Governing Section 2254 Cases (“§ 2254 Rules”); see also
§ 2254 Rule 1(b) (authorizing court to apply § 2254 Rules to
§ 2241 petitions).
Tito asserts claims challenging criteria applied by the New
Hampshire Adult Parole Board (“APB”) in delaying or denying
parole, which he asserts have resulted in the continuing
confinement of inmates who would otherwise be released. 	Tito
does not allege, however, that the criteria have been applied to
him. 	To that extent, Tito’s petition seeks an advisory opinion
and thus does not present a “case or controversy” within this
court’s jurisdiction.
Tito filed this petition while incarcerated and has since
been released on parole. 	Even if those APB criteria had been
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applied to Tito previously, delaying his ability to obtain
parole, nothing in the record suggests that Tito remains subject
to any concrete injury traceable to any prior APB decision that
could be redressed by an Order granting him relief in this case
now. 	Cf. Spencer v. Kemna, 523 U.S. 1, 7-8, 18 (1998) (“We are
not in the business of pronouncing that past actions which have
no demonstrable continuing effect were right or wrong.”). 	It
would be speculative to conclude that Tito is likely to be re-
incarcerated and subject to the same APB criteria again.
Conclusion
For the foregoing reasons, the district judge should
dismiss the petition as failing to satisfy the case or
controversy requirement of Article III jurisdiction. 	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 19, 2019
cc: 	Albert Tito, pro se
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