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Cremeans v. Warden, New Hampshire State Prison

United States District Court, D. New Hampshire

September 16, 2019

Christopher Cremeans
v.
Warden, New Hampshire State Prison

          Christopher Cremeans, pro se Elizabeth C. Woodcock, Esq.

          ORDER

          Paul J. Barbadoro United States District Judge

         Pro se petitioner Christopher Cremeans seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Doc. No. 1. Respondent Warden of the New Hampshire State Prison, Michael Zenk, has moved to dismiss, see Doc. No. 5, and Cremeans has filed a response (Doc. No. 7), which the court construes as an objection to the Motion to Dismiss. Also before the court is Cremeans's Motion to Waive Service on Respondent (Doc. No. 8).

         Background

         Christopher Cremeans is a prisoner of the State of New Hampshire who pleaded guilty to two counts of aggravated felonious sexual assault and two counts of endangering the welfare of a child and was sentenced to 17 1/2 - 35 years in prison in state court. See Apr. 10, 2017 Order, State v. Cremeans, Nos. 216-2004-CR-1243, -1248, -1256; 216-2005-CR-098, -099 (Apr. 10, 2017 N.H. Super. Ct., Hillsborough Cty., N. Dist.) (Doc. No. 1 at 19-20). In its sentencing order, that court recommended that the Department of Corrections ("DOC") require Cremeans to complete the prison's sex offender program ("SOP"). The court also included the following provision in Cremeans's sentence:

[two-and-one-half years] of the minimum sentence may be suspended by the Court on application of the defendant provided the defendant demonstrates meaningful participation in a sexual offender program while incarcerated, it shall be defendant's burden to demonstrate that under all the circumstances, such suspension is warranted.

Id. (Doc. No. 1 at 20). The state court entered judgement on November 9, 2005. See Id. (Doc. No. 1 at 19).

         On November 16, 2006, Cremeans filed a motion in the state trial court to withdraw his plea and proceed to trial. The court denied the motion on December 20, 2006, and denied Cremeans's motion to reconsider on January 10, 2007. The trial court denied additional post-conviction motions on January 26, 2007. Cremeans appealed the denials collectively to the New Hampshire Supreme Court (“NHSC”). On September 17, 2007, the NHSC declined the appeal. See Mot. to Dismiss (Doc. No. 5) at 2.

         On December 27, 2007, Cremeans filed a petition for writ of habeas corpus in this court, pursuant to 28 U.S.C. § 2254, challenging his 2005 judgment. See § 2254 Pet. at 14, Cremeans v. Wells, No. 08-cv-003-JL (D.N.H.), (ECF No. 1). This Court dismissed the petition as untimely. See Mar. 5, 2008 Order, id. (ECF No. 6) (approving Feb. 12, 2008 Report and Recommendation (“R&R”) (ECF No. 3)).

         Cremeans then returned to state court and again challenged his 2005 convictions. His discretionary appeal was declined by the NHSC on January 8, 2009. See Mot. to Dismiss (Doc. No. 5) at 2-3.

         At a parole hearing held on July 7, 2011, Cremeans learned for the first time that prior to his sentencing, the DOC had adopted the following policy regarding entry into the SOP:

After much thought and discussion, it has been decided that after September 1, 2002, we will no longer consider for early admission anyone who has a court order stating that a portion of their sentence MAY be suspended upon completion of the Sex Offender Program.
The rationale for this decision is based in part on the length of our waiting lists . . . [and] [t]his is a good faith effort to give fair chance to inmates who are nearing their actual Minimum Parole Dates to get into treatment as soon possible.
We will continue to honor the court's recommendation for early admission only when the sentencing order states specifically that a certain portion of the sentence WILL/SHALL be suspended if the ...

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