Blackstock v. Adult Parole Board Executive Assistant Andrea Goldberg

          Gregg Blackstock, pro se.

          Elizabeth C. Woodcock, Esq.

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone, United States Magistrate Judge.

         Petitioner 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.

         Background

         After 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 sentence.

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 consecutive sentence.

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 9, 2021.

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).

         In May 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), ^[1] Blackstock's actual sentence was a single term of 15 to 30 years; (3) under RSA 651-A:6, II (repealed 2008), ^[2] 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.

         In a 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 of relief:

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, 2010;

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.

         After 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.

         Blackstock 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.

         Next, 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.

         Blackstock 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”).

         With 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 appeal.

         With 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 unexhausted claims.

         Legal Standard

         A 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. § 2254(d),

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 court proceeding.”

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).

         Discussion 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.

         I. Jurisdiction

         According 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 persuasive.

         The 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).

         Even 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.^[3]

         In 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 this way:

[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 ...