The opinion of the court was delivered by: Landya McCafferty United States Magistrate Judge
Before the court is the petition for writ of habeas corpus (doc. no. 1), filed by pro se petitioner, Francis Bowen, seeking relief pursuant to 28 U.S.C. § 2254. The matter is here 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").
Pursuant to § 2254 Rule 4, a judge is required to promptly examine any petition for habeas relief, and if "it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition." Id. In undertaking this review, the court applies a standard analogous to that used in reviewing a motion to dismiss filed under Fed. R. Civ. P. 12(b)(6). The court decides whether the complaint contains sufficient factual matter, accepted as true, to state a claim to relief that is plausible and cognizable in a petition for federal habeas relief. See Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S. Ct. 1937, 1949 (2009) (standard of review applicable in determining if complaint states viable claims). The court may consider whether federal habeas review is barred by the petitioner's failure to exhaust state court remedies, a procedural default, or a statute of limitations defense apparent upon the face of the petition. See id.; see also Day v. McDonough, 547 U.S. 198, 209-10 (2006) (district courts are permitted, but not required, to dismiss complaint, sua sponte, based upon statute of limitations, if parties have received fair notice and opportunity to present their positions); Oakes v. United States, 400 F.3d 92, 96 (1st Cir. 2005) (district court has discretion to raise issue of procedural default sua sponte (citing Brewer v. Marshall, 119 F.3d 993, 999 (1st Cir. 1997)).
In March 1988, Bowen pleaded guilty to aggravated felonious sexual assault charges, arising out of conduct occurring in 1982, and was sentenced to a term of 6 to 15 years of imprisonment, stand committed. Bowen served the maximum term of his prison sentence and was released thereafter.
New Hampshire law requires persons convicted of certain sex offenses to register with the police when they move into or out of a New Hampshire city or town. See N.H. Rev. Stat. Ann. ("RSA") §§ 651-B:4; -B:5. In January 2008, Bowen moved within the state, from the City of Franklin, in Merrimack County, to the Town of Tilton, in Belknap County, but did not register that move with the police in either community. Bowen was charged in Belknap County for failing to register the move with the Tilton Police and was also charged in Merrimack County with failing to report his relocation to the Franklin Police. On March 7, 2008, Bowen pleaded guilty to the Belknap County charge and was sentenced to 1 to 3 years in prison on the Belknap County charge. On September 23, 2008, Bowen pleaded guilty to the Merrimack County charge and was sentenced to 11/2 to 7 years in prison, to be served concurrently with the Belknap County sentence. The court also ordered that Bowen's eligibility for parole would be contingent upon his completion of the sexual offender treatment program at the New Hampshire State Prison.
Just over a year after he was sentenced on the Merrimack County charge, on September 24, 2009, Bowen filed a state court petition for a writ of habeas corpus, citing as grounds for relief the Double Jeopardy Clause, the guarantee against cruel and unusual punishment, and the right to effective assistance of counsel. The Superior Court held a hearing on that petition on January 8, 2010. Bowen asserts that during that hearing, the judge instructed Bowen to file a motion to modify his sentence in Merrimack County Superior Court. The superior court judge subsequently denied the state habeas petition on March 2, 2010.
On June 1, 2010, Bowen filed a motion to modify his sentence in Merrimack County, contending, among other things, that his sentence violated the state and federal constitutional prohibitions against ex post facto laws because the 1988 sex offense conviction underlying his 2008 sex offender registration conviction had been based on conduct occurring before the state had enacted any sex offender registry laws. The state superior court denied the motion to modify Bowen's sentence on July 28, 2010, in short order, stating that all "claims made in the Motion to Modify Sentence ha[d] been considered and decided adversely" in the March 2, 2010, order denying Bowen's state habeas petition. State v. Bowen, No. 08-S-449 (N.H. Super. Ct., Merrimack Cnty. July 28, 2010) (citing Bowen v. Gerry, No. 09-E-386 (N.H. Super. Ct., Merrimack Cnty. Mar. 2, 2010).
Bowen appealed both orders to the NHSC. The NHSC granted Bowen's motion to extend the deadline for filing the appeal and declined his discretionary appeal on November 4, 2010. See Bowen v. Warden, No. 2010-0580 (N.H. Nov. 4, 2010).
Bowen filed the instant petition for federal habeas relief under 28 U.S.C. § 2254 on November 22, 2010, challenging the Merrimack County conviction and sentence.*fn1 The petition asserts the following facially valid federal constitutional claim*fn2
Bowen's Merrimack County conviction and sentence for failing to register as a sex offender violated the prohibition against ex post facto laws, set forth in the United States Constitution, Article I, section 10, in that his underlying sex offender conviction, dating from 1988, related to conduct occurring in 1982, before New Hampshire had enacted any sex offender registration requirements.*fn3