Harrington v. NH State Prison for Men et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Kevin Harrington
v. Case No. 24-cv-096-JL-AJ
Warden, Northern New Hampshire
Correctional Facility
Report and Recommendation
Self-represented Petitioner Kevin Harrington filed this
action seeking release from prison on parole. The court has
construed Harrington’s initial filing (Doc. No. 1) as a Petition
for a Writ of Habeas Corpus filed under 28 U.S.C. § 2241. See
Doc. No. 5. The Petition is before the undersigned magistrate
judge for preliminary review.1 See 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);
LR 4.3(d)(4).
Preliminary Review Standard
Under § 2254 Rule 4, a federal judge must screen habeas
petitions and, if “it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief
1 The court considers Harrington’s initial Petition (Doc.
No. 1) and Petition Addenda (Doc. Nos. 6-13), along with their
exhibits, to be the Petition in this case for all purposes.
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in the district court, the judge must dismiss the petition.”
Id.; see also McFarland v. Scott, 512 U.S. 849, 856 (1994)
(courts “are authorized to dismiss summarily any habeas petition
that appears legally insufficient on its face”). In conducting
its § 2254 Rule 4 review, the court construes self-represented
litigants’ filings liberally. See Dutil v. Murphy, 550 F.3d
154, 158 (1st Cir. 2008).
Background
On March 13, 2020, following a jury trial in the Merrimack
County Superior Court (“MCSC”), Harrington was convicted on
charges of felony sexual assault, burglary, simple assault, and
false imprisonment. See State v. Harrington, Case No. 2020-
0333, 2023 N.H. LEXIS 14, at *1, 2023 WL 2207417, at *1 (N.H.
Feb. 24, 2023). On June 22, 2020, the MCSC sentenced Harrington
to serve a term of incarceration, and imposed additional
suspended consecutive and concurrent sentences. See State v.
Harrington, No. 217-2019-CR-00891 (N.H. Super. Ct., Merrimack
Cty. June 22, 2020).
In his Petition, Harrington alleges that he is entitled to
release on parole, because the MCSC, when it imposed his
sentences, ordered that the committed portion of his sentences
would be suspended if he completed the prison’s sexual offender
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treatment program (“S.O.T.”). Such a suspension would render
Harrington immediately eligible for parole. Harrington alleges
that he completed Stages I and II of the S.O.T. and was
beginning Stage III when, on December 19, 2023, the S.O.T.
director, Abbey Simon, removed him from the program.
Harrington alleges that Simon removed him from the program
because she, and other S.O.T. staff members, determined that he
was not a rapist, and instead had a mental health issue that
required a different kind of therapy.2 Harrington claims that
Simon, by making that determination, changed his sentencing
order so that he was not required to complete the S.O.T., and
only had to complete mental health treatment, to qualify for
suspension of his minimum sentence, and eligibility for parole
release. Harrington does not state that the MCSC or any other
state court amended his sentence.
With his Petition, Harrington submitted a copy of an April
12, 2024 Inmate Request Slip (“IRS”) he sent to the (then)
Warden of the Northern New Hampshire Correctional Facility
2 In other filings in this case, Harrington indicates he was
removed from the S.O.T. for “frivolous writeups.” The reason
for Harrington’s failure to complete the S.O.T. does not impact
this court’s recommendation in this matter, and the court thus
declines to resolve the question at this time.
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(“NCF”), Corey Riendeau, concerning the requirements of his
sentence. That IRS stated:
Everyone is deflecting real facts, things that are
true, the Statement from the Director of S.O.T. that I
was pulled out of on court order changed to mental
health, no more S.O.T., an[d] no Kevin you are not a
deviant rapist, . . .. So Warden she got the power to
ch[a]ng[e] court order, an[d] no rapist, my S.O.T. is
completed an[d] I should be C-2. My 2020 Mittimus, if
S.O.T. is completed, then I can be C-2 an[d] [S.O.T.]
Director said[:] Yes no more S.O.T. - No Rapist you in
[Mental Health].
Doc. No. 6-1, at 3. On April 17, 2024, Riendeau responded to
that IRS as follows:
Your information is incorrect it was not changed to
mental health. Mental health treatment and services
will be provided along with [S.O.T.]. This has been
explained in detail to you. I will not change any
orders nor do I have any authority over programming.
I suggest you work towards lowering your
classification and participating in required
programming.
Id.
Discussion
Harrington contends that he is entitled to immediate
release from prison on parole. A § 2241 petition for habeas
corpus “is an attack by a person in custody upon the legality of
that custody, and . . . the traditional function of the writ is
to secure release from illegal custody.” Preiser v. Rodriguez,
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411 U.S. 475, 484 (1973).3
A habeas petition under § 2241 is appropriate to seek
“relief from the manner of execution of a sentence . .
..” Muniz v. Sabol, 517 F.3d 29 33-34 (1st Cir.
2008). Courts in the First Circuit take the view that
to bring a claim under § 2241 for a violation of law
in relation to a sentence's manner of execution, the
petitioner must challenge, at some level, the validity
or duration of his confinement . . ..
Vogel v. FCI Berlin, Warden, Civil No. 24-cv-82-JL-TSM, 2024
U.S. Dist. LEXIS 157137, at *11, 2024 WL 3993157, at *5 (D.N.H.
Aug. 14, 2024) (citations omitted), R&R approved sub nom. Vogel
v. US Att'y Gen., 2024 U.S. Dist. LEXIS 155176, at *1, 2024 WL
3991654, at *1 (D.N.H. Aug. 29, 2024).
Relief under § 2241 is only available, however, if the
petitioner is in custody in violation of federal law. See 28
U.S.C. § 2241(c)(3). A state prisoner in New Hampshire does not
have a right under the federal constitution, or any other
federal law, to be granted parole. See Greenholtz v. Neb. Penal
Inmates, 442 U.S. 1, 7 (1979) (“There is no constitutional or
inherent right of a convicted person to be conditionally
released before the expiration of a valid sentence.”); Ainsworth
3 To the extent Harrington may seek to challenge the
validity of any conviction(s) underlying his present
incarceration, such claims are appropriately litigated in a
federal habeas corpus action brought under 28 U.S.C. § 2254.
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v. Stanley, 317 F.3d 1, 5 (1st Cir. 2002) ( “inmates do not have
a ‘liberty right’ to parole under” federal law).
Both the New Hampshire parole statute and the
administrative regulations governing the [Adult Parole
Board (“APB”)]'s conduct plainly provide that the APB
has discretion in deciding whether to grant or deny
parole to an eligible inmate. See N.H. Rev. Stat.
Ann. 651–A:6 (2011) (providing that the APB “may”
grant parole to eligible inmates); N.H. Code Admin. R.
Ann. Par–301.02 (providing that “[p]arole shall be
considered a privilege”). The New Hampshire Supreme
Court has repeatedly held that the APB has broad
discretion in its parole decisions, and that the APB
is not mandated to grant parole to an inmate, even
where he meets certain conditions or criteria. See
Knowles v. Warden, 140 N.H. 387, 389, 666 A.2d 972,
974–75 (1995); Cable v. Warden, State Prison, 140 N.H.
395, 398, 666 A.2d 967, 969 (1995).
Dupont v. N.H. Adult Parole Bd., No. 11-cv-156-SM, 2011 U.S.
Dist. LEXIS 150902, at *10, 2011 WL 6934778, at *4 (D.N.H. Dec.
19, 2011), R&R adopted, 2012 U.S. Dist. LEXIS 15085, at *1, 2012
WL 405505, at *1 (D.N.H. Feb. 8, 2012). “Because New Hampshire
provides an opportunity for parole to its prisoners as a
privilege, not a right, it has not created a liberty interest in
the opportunity for parole.” Id. (citing Reid v. Stanley, Civ.
No. 04–cv–369–JD, 2006 U.S. Dist. LEXIS 45875, at *12, 2006 WL
1875355, at *4 (D.N.H. July 6, 2006)).
Accordingly, the failure to grant Harrington parole does
not implicate his due process rights, and cannot form the basis
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of a cognizable habeas claim for relief. The district judge,
therefore, should dismiss Harrington’s § 2241 Petition.
Conclusion
For the foregoing reasons, the district judge should
dismiss the Petition (Doc. Nos. 1, 6-13) in its entirety. 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. Only those issues raised in the objection to this
Report and Recommendation are subject to review in the district
court. See Sch. Union No. 37 v. United Natl Ins. Co., 617 F.3d
554, 564 (1st Cir. 2010). Any issues not preserved by such
objection(s) are precluded on appeal. See id. Failure to file
any 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).
SO ORDERED.
______________________________
Andrea K. Johnstone
United States Magistrate Judge
April 23, 2026
cc: Kevin Harrington, pro se
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