Blackstock v. Goldberg et al

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Gregg Blackstock
v. 	Case No. 16-cv-411-LM
Adult Parole Board Executive
Assistant Andrea Goldberg, and
Offender Records Administrator
Cindy Crompton
REPORT AND RECOMMENDATION
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
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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).
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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
1RSA 651:20, I(a)(2) governs the amount of time a prisoner
with consecutive sentences must serve before moving the
sentencing court to suspend one of his sentences.
2RSA 651-A:6, II provided that when computing the length of
time a released prisoner must spend on parole, the ABP was to
base its computation on “the total of the [parolee’s] 2 longest
sentences.”
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[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
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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
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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.
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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
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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
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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
3Blackstock’s second petition, which was dismissed in 2009,
is immaterial to the second-or-successive analysis because it
was dismissed as a mixed petition rather than being denied on
the merits, and “[i]f a prior petition is not adjudicated on the
merits, a later-filed petition is not deemed second or
successive [to it],” Ellison v. Warden, No. 12-cv-36-PB, 2012
U.S. Dist. LEXIS 91962, at *10, 2012 WL 2590496, at *4 (D.N.H.
July 2, 2012) (citing Pratt v. United States, 129 F.3d 54, 60
(1st Cir. 1997)); see also Strickland v. Thaler, 701 F.3d 171,
175 (5th Cir. 2012) (“A petition filed after a mixed petition
has been dismissed under Rose v. Lundy [455 U.S. 508 (1982)]
before the district court adjudicated any claims is to be
treated as any other first petition and is not a second or
successive petition.”) (quoting Slack v. McDaniel, 529 U.S. 473,
486 (2000)) (internal quotation marks omitted).
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conviction but was challenging a decision related to parole.
See 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 require authorization
from this court prior to filing his parole-based
claims in federal district court.
Id. at 10.
Here, claims based upon decisions the APB made in 2010 and
2011 arose five or six years after Blackstock’s first habeas
petition was denied and four or five years after the court of
appeals terminated his appeal from the denial of his first
petition. 	Thus, claims based upon the APB’s 2010 and 2011
decisions: (1) could not have been raised in Blackstock’s first
petition; (2) are not second or successive for purposes of §
2244; and (3) did not require authorization from the court of
appeals before Blackstock could file them in this court.
That leaves the claims based upon the APB’s 2005 and 2006
decisions, and the dispositive question is whether Blackstock
could have raised those claims in his first petition. 	If so,
then those claims are successive to the first petition, and
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cannot be raised in this court without authorization from the
court of appeals. 	However, if Blackstock could not have raised
claims based upon the 2005 and 2006 APB decisions in his first
petition, then those claims are not successive and may be
asserted in this court without authorization from the court of
appeals.
Respondents’ characterization of the current petition as
successive rests upon the following argument:
Although the claims regarding the Adult Parole Board
post-date the filing of the petition as the APB’s
actions occurred in 2005, 2006, 2010, and 2011, the
petitions filed in this Court were not dismissed until
February 27, 2007 and December 23, 2009. 	The
petitioner could have filed a motion to amend his
pending petitions. 	See Fed. R. Civ. P. 15 . . . . 	He
did not move to amend the petition.
Resp’t’s Mot. to Dismiss (Doc. No. 17) 8. 	Blackstock’s second
petition was dismissed on December 23, 2009.4 	But respondents’
reference to February 27, 2007, appears to be erroneous; the
court’s docket indicates no activity on Blackstock’s first
petition on that date. 	Indeed, judgment entered on Blackstock’s
4As the court has explained, that petition is irrelevant to
the second-or-successive analysis as it was dismissed without
prejudice. 	But even if it were not, it seems unlikely that
Blackstock would have been permitted to add a parole-related
claim to that petition because: (1) it asserted claims arising
from Blackstock’s Hillsborough County convictions; (2) there is
no indication that he ever litigated any parole-related issues
in the Hillsborough County Superior Court; and (3) under Habeas
Rule 2(e), “[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.”
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first petition on February 10, 2005. 	That was six months before
the APB took the first action that Blackstock challenges in this
petition, and respondents do not indicate how Blackstock could
have amended a petition on which judgment had been entered
against him. 	The court is unaware of any procedural mechanism
through which he could have done so, and amendment to add
parole-based claims to a habeas petition asserting claims
arising from Blackstock’s Rockingham County conviction would
appear to have been precluded by Habeas Rule 2(e), given that
there is no indication that Blackstock ever litigated any
parole-related claims in the Rockingham County Superior Court.
In short, claims arising from the APB’s actions in 2005 and 2006
are not successive to Blackstock’s first petition, and his
failure to seek permission from the court of appeals to assert
them here provides no obstacle to this court’s consideration of
them.
II. 	Failure to State a Federal Claim
Respondents next argue that Blackstock’s petition does not
state any federal claims because: (1) there is no federal
constitutional right to parole; and (2) his petition turns on
alleged errors of state law, not violations of federal law that
are cognizable under § 2254. 	As for respondents’ first
argument, a person who has been convicted, and who is serving a
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valid sentence of incarceration, does not have a federal
constitutional right to be released from his incarceration, by
means of parole or otherwise, “before the expiration of a valid
sentence.” 	González-Fuentes v. Molina, 607 F.3d 864, 886 (1st
Cir. 2010) (quoting Greenholtz v. Inmates of Neb. Penal & Corr.
Complex, 442 U.S. 1, 7 (1979)). 	However, given the panoply of
constitutional claims that Blackstock asserts in his petition,
some of which arguably fall outside the scope of the principle
stated in González-Fuentes, the court turns to a claim-by-claim
evaluation of respondents’ argument that petitioner has failed
to assert any cognizable federal claims.
A. 	Claim One
In its order on preliminary review, the court framed
Blackstock’s first claim this way:
In considering Blackstock for parole in 2005, 2006,
2010, and 2011, the respondents calculated his
sentence length and parole eligibility pursuant to
statutes and administrative rules enacted after he was
sentenced, and in a manner that increased the length
of his minimum sentence, in violation of: (a) the Ex
Post Facto Clause of the United States Constitution,
and (b) his Fourteenth Amendment right not to be twice
punished for a single offense.
Doc. No. 4, at 4. 	The court considers each legal theory in
turn.
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1. 	Ex Post Facto Law
“The States are prohibited from enacting an ex post facto
law.” 	Garner v. Jones, 529 U.S. 244, 249 (2000) (quoting U.S.
Const. art. I, § 10, cl. 1). 	With respect to the claim
Blackstock asserts in his petition, “the Ex Post Facto Clause .
. . bar[s] enactments which, by retroactive operation, increase
the punishment for a crime after its commission. 	Retroactive
changes in laws governing parole of prisoners, in some
instances, may be violative of this precept.” 	Garner, 529 U.S.
at 249-50 (internal citations omitted).
The legislative enactment at issue here is the 2008 repeal
of RSA 651-A:6, II. 	Before its repeal, that statute provided
that “[w]hen a person is subject to multiple concurrent or
consecutive sentences of imprisonment, as provided in RSA 651:3,
III, the provisions of this section shall be computed from the
total of the 2 longest sentences, subject to the provisions of
RSA 651-A:14.”5
After RSA 651-A:6, II was repealed, the provisions of RSA
651-A:6 were to be computed from the total of all of an inmate’s
sentences, not just the total of the two longest. 	However,
until it was amended in 1991, RSA 651-A:6, II had provided that
5RSA 651-A:14, which has since been repealed, provided for
early discharge from parole for good conduct.
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the provisions of RSA 651-A:6 were to be computed from the
single “longest of [a prisoner’s] sentences.”
According to Blackstock, RSA 651-A:6, II governed the
computation of his minimum sentence and the date on which he
became eligible for parole (to society), and that by failing to
make those computations using his “2 longest sentences,” in 2010
and 2011,6 the APB violated the Ex Post Facto Clause by
submitting him to a more onerous punishment than was provided by
the law in force when he was sentenced.7 	Respondents argue that
because “the newer law 	did not increase [Blackstock’s]
sentence, it cannot have violated the prohibition against ex
post facto laws.” 	Resp’t’s Mot. to Dismiss (Doc. No. 17) 11.
In its decision affirming the MCSC’s denial of Blackstock’s
mandamus petition, the NHSC conducted an extensive statutory
analysis of RSA 651-A:6, II, and held that that provision “set
forth the calculation of the duration of parole upon release
from prison, not the calculation of the minimum parole
6Blackstock’s ex post facto claim in this case encompassed
all four of the APB’s actions, including its decisions in 2005
and 2006. 	Because the only legislative action at issue here is
the 2008 repeal of RSA 651-A:6, II, and that statute was not
altered between 1991 and 2008, it is logically impossible for
the APB to have done anything in 2005 or 2006 that amounted to
the application of an ex post facto law.
7Specifically, Blackstock claims that under RSA 651-A:6, II,
he became eligible for release to society after serving ten
years in prison, the aggregated minimum terms of his two longest
sentences.
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eligibility date for an inmate serving multiple sentences.”
Blackstock I, 2016 N.H. LEXIS 166, at *11, 2016 WL 4103620, at
*4. 	Because the APB did not calculate the duration of
Blackstock’s post-release parole in either 2010 or 2011, it did
not make any decision based upon the state of the law resulting
from the repeal of RSA 651-A:6, II. 	That, in turn, precludes
Blackstock’s claim that the APB violated the Ex Post Facto
Clause by applying a legislative enactment that postdated his
conviction and sentencing.
To be sure, Blackstock claims that the NHSC erred in its
construction of RSA 651-A:6, II. 	But, the NHSC’s construction
of that statute is a question of state law, “and an error ‘under
state law is not a basis for habeas relief.’” 	Hardy v. Maloney,
909 F.3d 494, 499 (1st Cir. 2018) (quoting Estelle v. McGuire,
502 U.S. 62, 71-72 (1991)). 	In sum, Blackstock’s Ex Post Facto
Clause claim presents no basis for granting him relief under §
2254.
2. 	Double Jeopardy
Under the Double Jeopardy Clause of the Fifth Amendment to
the United States Constitution, which is made applicable to the
states by the Fourteenth Amendment, see Martínez-Rivera v.
Sánchez Ramos, 498 F.3d 3, 8 n.6 (1st Cir. 2007) (citing Benton
v. Maryland, 395 U.S. 784, 794 (1969)), “[n]o person shall . . .
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be subject for the same offense to be twice put in jeopardy of
life or limb,” U.S. Const. amend. V. 	More specifically:
[t]he Double Jeopardy Clause affords protection in
three distinct situations: “It protects against a
second prosecution for the same offense after
acquittal. 	It protects against a second prosecution
for the same offense after conviction. 	And it
protects against multiple punishments for the same
offense.”
Ferrell v. Wall, 862 F. Supp. 2d 88, 103 (D.R.I. 2012) (quoting
Jackson v. Coalter, 337 F.3d 74, 81 (1st Cir. 2003).
According to Blackstock, he was subjected to the third form
of double jeopardy described in Ferrell because: (1) RSA 651-
A:6, II effectively abolished consecutive sentences in New
Hampshire and made all sentences concurrent, thus transforming
his three consecutive sentences of 5 to 10 years into a single
sentence of 15 to 30 years8; (2) the statute also required the
ABP to consider him for parole, to society, after he had served
ten years in prison (i.e., the aggregated minimum terms of his
two longest sentences); and (3) by paroling him to a third
consecutive sentence in 2011, when his three consecutive
sentences had been aggregated into a single sentence by
operation of law, the APB imposed a second punishment for the
8In his mandamus petition, Blackstock contended that the
aggregation of his three consecutive sentences into a single
sentence occurred by operation of RSA 651:20, I(a)(2). 	He
appears to have abandoned that theory of aggregation.
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same offense. 	In petitioner’s view, by paroling him to a
consecutive sentence, the APB “forced [him] to serve sentences
that clearly were not intended to be served consecutively.”
Pet. (Doc. No. 1) ¶ 229.
However, when considering Blackstock’s appeal of the MCSC’s
denial of his mandamus petition, the NHSC declined to address
his double-jeopardy claim because: (1) “he [had] not
sufficiently developed [that] argument for [the NHSC’s] review,”
Blackstock I, 2016 N.H. LEXIS 166, at *21, 2016 WL 4103620, at
*8; and (2) it had “repeatedly stated [that] ‘judicial review is
not warranted for complaints regarding adverse rulings without
developed legal argument,’” id. (quoting State v. Durgin, 165
N.H. 725, 731 (2013)).
The NHSC’s decision not to address Blackstock’s double-
jeopardy claim “constitute[s] independent and adequate state-law
grounds for the judgment that . . . effectively preclude [this
court’s] direct review of the forfeited argument, absent certain
special circumstances,” Lucien v. Spencer, 871 F.3d 117, 124
(1st Cir. 2017) (citing Barbosa v. Mitchell, 812 F.3d 62, 67
(1st Cir. 2016)). 	The “special circumstances” to which the
Lucien court referred is a showing, by the petitioner, of cause
for his default and prejudice resulting therefrom. 	See Barbosa,
812 F.3d at 67. 	Because petitioner has not shown cause and
prejudice, the procedural default of his double-jeopardy claim
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cannot be excused. 	That, in turn, precludes this court from
reviewing that claim.
Because Blackstock has failed to state an Ex Post Facto
Clause claim and because his double-jeopardy claim has been
procedurally defaulted, the district judge should dismiss Claim
One in its entirety.
B. 	Claim Two
In its order on preliminary review, the court framed
Blackstock’s second claim this way:
Blackstock’s Fourteenth Amendment Due Process right to
fair notice of the punishment to which his criminal
offenses might subject him was violated when the
respondents failed to properly apply the parole
release statute in effect at the time of Blackstock’s
crimes [i.e., RSA 651-A:6, II] to calculate his parole
eligibility and eligibility for release to society,
when Blackstock was considered for parole in 2005,
2006, 2010, and 2011.
Doc. No. 4, at 4-5.
The Supreme Court has explained that under the Fourteenth
Amendment, “elementary notions of fairness enshrined in our
constitutional jurisprudence dictate that a person receive fair
notice not only of the conduct that will subject him to
punishment, but also of the severity of the penalty that a State
may impose.” 	Hinds v. Lynch, 790 F.3d 259, 269 (1st Cir. 2015)
(internal quotation marks and alternations omitted) (quoting
State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 417
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(2003)). 	However, as the court has already explained, RSA 651-
A:6, II was used to calculate “the duration of parole upon
release from prison,” Blackstock I, 2016 N.H. LEXIS 166, at *11,
2016 WL 4103620, at *4, a calculation that the APB has yet to
perform in this case. 	Thus, just as Blackstock has failed to
state an Ex Post Facto Clause claim based upon a purported
misapplication of the law pertaining to post-release parole,
i.e., RSA 651-A:6, II, he has failed to state a Fourteenth
Amendment claim based upon the same purported error. 	For that
reason, Claim II should be dismissed.
C. 	Claim Three
In its order on preliminary review, the court framed
Blackstock’s third claim this way:
The respondents acted outside of their authority by
granting him, in 2006 and 2011, “administrative
parole,” which was parole to his consecutive sentence,
without releasing him from incarceration, when state
law and administrative regulations authorized only his
parole to society, in violation of Blackstock’s
Fourteenth Amendment Due Process rights.
Doc. No. 4, at 5.
The problem with Claim Three is that New Hampshire state
law does authorize the APB to parole prisoners to consecutive
sentences. 	The NHSC said so in Petition of Warden (State v.
Roberts), 168 N.H. 9, 15 (2015), and when affirming the MCSC’s
denial of Blackstock’s mandamus petition, the NHSC relied on
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Petition of Warden to reject Blackstock’s contention that
“parole to a consecutive sentence violates due process,”
Blackstock I, 2016 N.H. LEXIS 166, at *18, 2016 WL 4103620, at
*6. 	Moreover, even if the NHSC misconstrued New Hampshire state
law concerning parole, “an error ‘under state law is not a basis
for habeas relief,’” Hardy, 909 F.3d at 499 (quoting Estelle,
502 U.S. at 71-72). 	In sum, the district judge should dismiss
Claim Three.
D. 	Claim Four
In its order on preliminary review, the court framed
Blackstock’s fourth claim this way:
Blackstock’s Fourteenth Amendment right to equal
protection was violated when, in 2005, 2006, 2010, and
2011, respondents treated him differently, in
consideration of his parole eligibility, than
offenders who did not have consecutive sentences, but
were otherwise similarly situated to Blackstock.
Doc. No. 4, at 5. 	Blackstock’s equal-protection claim is that:
(1) the criteria the APB uses to determine whether to grant
parole focus on factors such as risk to the public that apply to
prisoners paroled to society; (2) because those criteria focus
on factors that pertain to parole to society, to the exclusion
of factors that pertain to parole to a consecutive sentence, a
prisoner coming before the APB for a decision on parole to a
consecutive sentence is not informed of the criteria that will
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guide the APB’s decision, which places him in a disadvantageous
position as compared to prisoners coming before the APB for
decisions on parole to society.
“The Fourteenth Amendment’s Equal Protection Clause
prohibits a state from treating similarly situated persons
differently because of their classification in a particular
group.” 	Mulero-Carrillo v. Román-Hernández, 790 F.3d 99, 105-06
(1st Cir. 2015) (citing U.S. Const. amend. XIV, § 1).
Generally, for an equal protection claim to survive a
motion to dismiss, a plaintiff must allege facts
plausibly demonstrating that “‘compared with others
similarly situated, [the plaintiff was] selectively
treated . . . based on impermissible considerations
such as race, religion, intent to inhibit or punish
the exercise of constitutional rights, or malicious or
bad faith intent to injure a person.’”
Mulero-Carrillo, 790 F.3d at 106. 	Where, as here, “there is no
implication of a fundamental right being affected,” id. at 106,
and petitioner does “not claim to belong to a suspect
classification,” id., the APB’s parole “decisions require only
rational basis review,” id.
Blackstock has failed to adequately allege selective
treatment based upon his status as a prisoner up for parole to a
consecutive sentence to demonstrate a violation of the Equal
Protection Clause. 	As stated above, the treatment at the heart
of Blackstock’s equal protection claim is being given a parole
hearing at which the APB based its decision on criteria that,
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purportedly, he had not been informed of, while prisoners up for
parole to society are able to come into their hearings with full
knowledge of the criteria the APB will use to make its decision.
Blackstock attached to his petition a copy of the
regulations that set out ten different the criteria the APB
“shall consider” when evaluating a prisoner for parole, see Doc.
No. 1-2, at 36. 	Criterion (b), “[t]he appropriateness and
adequacy of [the prisoner’s] parole plan,” id., focusses on
factors such as the prisoner’s employment plan and proposed
residence in the community. 	Criterion (b) pertains exclusively
to prisoners up for parole to society. 	The remaining nine
criteria, however, are equally applicable to both prisoners
being considered for parole to society and prisoners being
considered for parole to a consecutive sentence. 	To take two
examples, criterion (a) is “[t]he inmate’s personality,
maturity, sense of responsibility, and any developments in
personality which might promote or hinder the [inmate’s]
conformity to the law,” id., and criterion (j) is “[t]he
inmate’s attitude and conduct during the parole hearing,” id.
Moreover, the reason the APB gave for denying petitioner
parole in 2010, lack of remorse, see Blackstock II, slip op. at
2, is listed as criterion (f) in the applicable parole
regulation. 	For all practical purposes, the regulations
demonstrate no appreciable differences in the way that prisoners
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are treated at their parole hearings based upon whether they are
up for parole to society or parole to a consecutive sentence,
and Blackstock has alleged no facts to support a claim that
prisoners who are up for parole to consecutive sentences are
less well informed about the criteria the APB will use at their
parole hearings than prisoners who are up for parole to society.
Because he has failed to allege selective treatment,
Blackstock has failed to state a Fourteenth Amendment equal
protection claim. 	Accordingly, the district judge should
dismiss Claim Four.
E. 	Claim Five
In its order on preliminary review, the court framed
Blackstock’s fifth claim this way:
RSA 651-A:6, II, in effect at the time of Blackstock’s
criminal offenses and sentencing, was
unconstitutionally vague, and thus void, and
respondents should have applied its predecessor
statute for purposes of calculating his parole
eligibility.
Doc. No. 4, at 5. 	The predecessor statute to which petitioner
refers is the version of RSA 651-A:6, II that was in effect up
until 1991, under which the provisions of RSA 651-A:6 were to
“be computed from the longest of [a prisoner’s] sentences,”
rather than his two longest sentences.
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In Blackstock’s view, because the pre-1991 version of RSA
651-A:6, II applied to his parole (and because Blackstock
believes that the term “parole” means nothing other than release
to society), the APB was obligated to release him to society in
2006. 	But, as the court has said several times, RSA 651-A:6, II
concerns the computation of how long a parolee must remain on
parole after his release from prison. 	The APB has never had the
occasion to compute how long Blackstock must be on post-release
parole, so it has never applied RSA 651-A:6, II, or made a
decision based upon the state of the law created by the repeal
of that statute. 	Accordingly, Blackstock has failed to
demonstrate that any statute the APB actually applied in
considering him for parole is unconstitutionally vague, and the
district judge should dismiss Claim Five.
F. 	Claim Six
In its order on preliminary review, the court framed
Blackstock’s sixth claim this way:
The Superior Court’s failure to provide Blackstock
with an evidentiary hearing prevented Blackstock from
providing the court with relevant evidence in his
mandamus proceedings in state court, in violation of
(a) his First Amendment right to access the courts,
and (b) his Fourteenth Amendment due process rights.
Doc. No. 4, at 5. 	Respondents move to dismiss this claim,
arguing, among other things, that the United States Constitution
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does not require states to provide post-conviction proceedings
of any sort.
1. 	Access to the Courts
“The right of access to the courts, in the context of
prisoners, is addressed only to a prisoner’s right to attack his
conviction and his right to challenge the conditions of his
confinement. 	Impairment of any other litigating capacity is
simply one of the incidental (and perfectly constitutional)
consequences of conviction and incarceration.” 	Riva v.
Brasseur, No. 15-2554, 2016 U.S. App. LEXIS 23932, at *3, 2016
WL 9650983, at *1 (1st Cir. Sept. 12, 2016) (emphasis in the
original) (citing Lewis v. Casey, 518 U.S. 343, 355 (1996);
Bounds v. Smith, 430 U.S. 817 (1977)). 	Because
Blackstock’s mandamus petition did not attack his conviction or
challenge the conditions of his confinement, he had no
constitutional right to any kind of a hearing on his petition,
much less the evidentiary hearing he asked for in place of the
hearing he did receive. 	Accordingly, the district judge should
dismiss Claim Six to the extent it asserts a violation of
Blackstock’s First Amendment right to access the courts.
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2. 	Due Process
As the court has already pointed out, “[t]here is no
constitutional or inherent right of a convicted person to be
conditionally released before the expiration of a valid
sentence.” 	González-Fuentes, 607 F.3d at 886 (quoting
Greenholtz, 442 U.S. at 7). 	Necessarily, then, the Fourteenth
Amendment right to due process imposes no particular
requirements on a state court entertaining a challenge to a
state agency’s parole decision.
Accordingly, as a matter of law, the MCSC’s decision not to
grant Blackstock an evidentiary hearing cannot support a
Fourteenth Amendment due process claim. 	Because Blackstock has
stated neither a due-process claim nor an access-to-the-courts
claim arising from the MCSC’s decision to deny him an
evidentiary hearing, Claim Six should be dismissed.9
Certificate of Appealability
The § 2254 Rules require the court to “issue or deny a
certificate of appealability [(“COA”)] when it enters a final
order adverse to the party” in a § 2254 action. 	§ 2254 Rule
11(a). 	For the reasons set forth above, the district judge
9The respondents may also be arguing that Claim Six has been
procedurally defaulted, but because Claim Six does not state a
cognizable federal constitutional claim, there is no need to
address whether that claim is procedurally defaulted.
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should find that Blackstock has not made a substantial showing
of the denial of a constitutional right and decline to issue a
certificate of appealability. 	See 28 U.S.C. § 2253(c); § 2254
Rule 11(a).
Conclusion
For the foregoing reasons, the district judge should grant
Respondents’ motion to dismiss (Doc. No. 17) the petition in
this case, and should also decline to issue a certificate of
appealability. 	Any objection to this Report and Recommendation
must be filed within 14 days of receipt of this notice. 	See
Fed. R. Civ. P. 72(b)(2). 	The 14-day period may be extended
upon motion. 	Failure to file a specific written objection to
the Report and Recommendation 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).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
February 5, 2019
cc: 	Gregg Blackstock, pro se
Elizabeth C. Woodcock, Esq.
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