United States District Court, D. New Hampshire
Blackstock, pro se.
Elizabeth C. Woodcock, Esq.
REPORT AND RECOMMENDATION
K. Johnstone, United States Magistrate Judge.
Gregg Blackstock seeks a writ of habeas corpus pursuant to 28
U.S.C. § 2254. See Doc. No. 1. The respondents
have filed a motion to dismiss (Doc. No. 17), which is before
the undersigned magistrate judge for a report and
recommendation as to disposition. Petitioner objects.
See Doc. No. 18.
two jury trials in the New Hampshire Superior Court (one in
Rockingham County and one in Hillsborough County), Blackstock
was convicted of four counts of aggravated felonious sexual
assault (one count in Rockingham county, three counts in
Hillsborough County). Blackstock was sentenced to five to ten
years in prison on the Rockingham County conviction, and to
three terms of five to ten years in prison on the
Hillsborough County convictions. The Hillsborough County
sentences were imposed as follows: (1) the first 5-10 year
sentence was to be served consecutively to the Rockingham
County sentence; (2) the second 5-10 year sentence was to be
served consecutively to the first Hillsborough County
sentence; and (3) he third 5-10 year sentence was to be
served concurrently with the second Hillsborough County
The petitioner began serving his initial sentence on January
12, 2001 . . . . On August 18, 2005, the [Adult Parole Board]
held the petitioner's first parole hearing, after which
it denied parole. On January 5, 2006, the [Adult Parole
Board] held a second hearing, after which it granted the
petitioner parole from his initial sentence to his first
Nearly five years later, on November 4, 2010, the APB
conducted a third hearing, after which the petitioner was
denied parole. On October 10, 2011, the APB conducted a
fourth hearing, after which the petitioner was granted parole
to his final consecutive sentence. The petitioner remains
incarcerated, and is currently serving his final sentence.
The maximum term of the sentence is set to expire on October
Blackstock v. Exec. Assistant, Adult Parole Bd.
(“Blackstock I”), No. 2014-0720, 2016 N.H.
LEXIS 166, at *1-2, 2016 WL 4103620, at *1 (N.H. June 9,
2016). The reason the Adult Parole Board (“APB”)
gave for denying Blackstock parole in 2010 was that he had
“minimized his offenses and failed to show
remorse.” Blackstock v. Goldberg, No.
217-2014-CV-253, slip op. At 2 (Merrimack Cty. Super. Ct.
Aug. 6, 2014) (“Blackstock II”) (Doc.
No. 13-2, at 13).
of 2014, Blackstock petitioned the Merrimack County Superior
Court (“MCSC”) for a writ of mandamus against the
APB and the New Hampshire Department of Corrections
(“DOC”). Initially, he claimed that: (1) as a
matter of law, the term “parole” refers only to
parole to society, and does not include parole to a
consecutive sentence; (2) notwithstanding the fact that he
had been sentenced to three consecutive terms of five to ten
years each, under N.H. Rev. Stat. Ann. §
(“RSA”) 651:20, I(a)(2),  Blackstock's actual
sentence was a single term of 15 to 30 years; (3) under RSA
651-A:6, II (repealed 2008),  he first became eligible for
parole in 2011, after serving the five-year minimum terms of
two of his five-to-ten-year sentences; (4) the APB subjected
him to four parole hearings that were unlawful because they
were held too early, i.e., before he had served the
aggregated five-year minimum terms of two of his sentences;
and (5) at his hearing in 2010, the APB unlawfully added one
year to his sentence. Blackstock asked the MCSC for several
forms of relief, including an order directing “the APB
to cease and desist all parole consideration events until
which point in time [Blackstock] has reached his legal
minimum parole date pursuant to RSA 651:20, I(a)(2).”
Doc. No. 14-3, at 16.
July 7, 2014, response to the respondents' motion to
dismiss his petition, Blackstock altered his legal theory to
some extent, and requested, among other things, these forms
MANDATE the DOC to calculate [Blackstock's] sentence
pursuant to RSA 651-A:6, [II] as it existed [on] the date of
the charged offense, making the petitioner time eligible for
parole (to society) after he had served the minimum portions
of the two longest sentences imposed. To wit, October 24,
ORDER the APB to conduct a parole hearing (to society) . . .
forthwith for the petitioner using only the mandated criteria
pursuant to State statutes and promulgated rules.
Doc. No. 13-2, at 40.
denying Blackstock's request(s) for an evidentiary
hearing, the MCSC held a non-evidentiary hearing on
Blackstock's petition. Thereafter, the MCSC granted the
respondents' motion to dismiss and denied
Blackstock's motion for reconsideration. In granting
respondents' motion to dismiss, the MCSC ruled that: (1)
RSA 651-A:6, II “was intended to calculate the duration
of parole once an inmate was released, not the length of a
minimum sentence required in order for an inmate to be
considered for parole, ” Blackstock II, slip
op. at 9; and (2) even if RSA 651-A:6, II had been intended
to calculate the amount of time a prisoner had to serve
before becoming eligible for parole, “the 2008
amendment to RSA 651-A:6 does not constitute an ex post
facto law because it does not inflict greater penalties
or change the punishment imposed on individuals under the
prior law, ” Id. at 11.
appealed to the New Hampshire Supreme Court
(“NHSC”), challenging both the merits of the
MCSC's decision and its decision not to give him an
evidentiary hearing. The NHSC affirmed the MCSC's
decisions in Blackstock's case in all respects.
See Blackstock I, 2016 N.H. LEXIS 166, at
*25, 2016 WL 4103620, at *9.
Blackstock filed the petition for a writ of habeas corpus
that is now before this court. However, this is not the first
such petition that Blackstock has filed here.
filed a § 2254 petition in this court on March 23, 2004.
Later, after noting that the petition raised claims arising
from convictions in two different courts, the court ordered
the clerk's office to bifurcate the claims arising from
Blackstock's two trials and open a second file. While the
order does not say so expressly, the court presumes that the
court ordered the second file to be opened to satisfy Rule
2(e) of the Rules Governing Section 2254 Cases in the United
States District Courts (“§ 2254 Rules”),
which provides that “[a] petitioner who seeks relief
from judgments of more than one state court must file a
separate petition covering the judgment or judgments of each
court, ” § 2254 Rule 2(e). Accordingly, the claims
arising from Blackstock's Rockingham County conviction
were designated for litigation in Blackstock v. Cattell,
No. 04-cv-106-JM (“first petition”), while
claims arising from his Hillsborough County convictions were
designated for litigation in Blackstock v. Cattell,
No. 04-cv-305-SM (“second petition”).
respect to the first petition, judgment was entered in favor
of the respondent on February 10, 2005. Blackstock filed a
Notice of Appeal on March 15, 2005. On February 23, 2006, the
court of appeals issued a mandate in which it denied
Blackstock a certificate of appealability and terminated his
respect to the second petition, the matter was “stayed
pending [Blackstock's] either exhausting available
remedies in state court with regard to [his] unexhausted
claims . . ., or his election to proceed only on the
exhausted claim.” Blackstock v. Cattell, No.
04-cv-305-SM, slip op. at 1 (D.N.H. Jan. 14, 2004) (ECF No.
17). Blackstock, however, failed to provide the status
reports required by the court's stay order. Consequently,
on December 23, 2009, Judge McAuliffe dismissed
Blackstock's second petition because it included
federal court may grant habeas corpus relief “only on
the ground that [a petitioner] is in custody in violation of
the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). However, the power
of the federal courts to grant habeas corpus relief to state
prisoners has been significantly limited by passage of the
Anti-Terrorism and Effective Death Penalty Act of 1996, 28
U.S.C. § 2254(d). Under that statute, when a § 2254
petitioner brings a claim that “was adjudicated on the
merits in State court proceedings, ” 28 U.S.C. §
a federal court cannot grant habeas relief . . .
“unless the adjudication of the claim resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by” [the U.S. Supreme] Court, or “a
decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State
Sexton v. Beaudreaux, 138 S.Ct. 2555, 2558 (2018)
(quoting 28 U.S.C. § 2254(d)); see also Walker v.
Medeiros, 911 F.3d 629, 633 (1st Cir. 2018).
Respondents move to dismiss on two grounds: (1) that the
court lack jurisdiction over this matter because it involves
a second or successive habeas petition and Blackstock has not
received authorization from the court of appeals to file it
in this court; and (2) the petition states no federal claims.
The court addresses each argument in turn.
to respondents, the court lacks jurisdiction to entertain
this petition because Blackstock is asserting claims that he
could have litigated, but did not litigate, in his 2004
habeas corpus petitions. Petitioner disagrees, pointing out
that the litigation of those petitions had concluded by 2009,
while this petition asserts claims arising from the APB's
2011 action. Respondents' jurisdictional argument is not
federal law of habeas corpus provides that “[a] claim
presented in a second or successive habeas corpus application
under section 2254 that was not presented in a prior
application shall be dismissed unless [the applicant makes
certain showings.]” 28 U.S.C. § 2244(b)(2). Those
showings, however, must be made in the court of appeals;
“[b]efore a second or successive application permitted
by [§ 2244] is filed in the district court, the
applicant shall move in the appropriate court of appeals for
an order authorizing the district court to consider the
application.” 28 U.S.C. § 2244(b)(3)(A). Finally,
when a petitioner includes both successive claims and claims
that are not successive in the same petition, he
“should be given the option of seeking authorization
from the court of appeals for his ‘second or
successive' claims, or of amending his petition to delete
those claims so he can proceed with the claims that require
no authorization.” Pennington v. Norris, 257
F.3d 857, 859 (1st Cir. 2001).
though the § 2254 petition before the court is,
numerically, Blackstock's third. As Blackstock has not
moved the court of appeals to authorize the filing of the
petition in this action, the question before the court is
whether any of the claims that Blackstock asserts in this
petition are successive to his first petition.
Restucci v. Bender, the court of appeals was
presented with an application to file a second or successive
habeas corpus petition. See 599 F.3d 8, 9 (1st Cir.
2010) (per curiam). Like Blackstock, the applicant in
Restucci was not challenging his conviction but was
challenging a decision related to parole. ee Id.
Ultimately, the court of appeals determined that, for the
purposes of § 2244, Restucci's petition was not
second or successive. The court explained its determination
[S]ince Restucci's current claims arose well after his
prior habeas petitions and application for leave to file a
second or successive petition seeking review of his state
court conviction were denied, he could not have raised them
in the earlier petitions; we therefore conclude, and the
State agrees, that the claims are not
“successive” for purposes of § 2244(b).
Accordingly, petitioner does not ...