Avery v. St. Germain et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Edgar Clifford Avery, Jr.1
v. 	Civil No. 21-cv-662-JL
Ashlyn St. Germain, et al.
Report and Recommendation
Edgar Clifford Avery, Jr. proceeding pro, filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
challenging a decision of the New Hampshire Adult Parole Board.2
Avery filed an initial petition (doc. no. 1) and an amended
petition (doc. no. 5) that are taken together as the petition in
this case. 	The petition is referred for preliminary review
pursuant to Rule 4 of the Rules Governing Section 2254 Cases.
Standard of Review
Pursuant to § 2254 Rule 4, a judge is required to examine a
petition for habeas relief and, if “it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court, the judge must dismiss
1 Avery has identified himself differently in other actions
he has filed. 	Because he includes his criminal and litigation
history, it is clear that Edgar Clifford Avery, Jr. is also
known as Clifford Avery, Clifford E. Avery, and Edgar Avery.
See, e.g., Avery v. Rodd, 13-cv-424-SM.
2 Avery’s filing is construed as a petition under § 2254 for
purposes of federal jurisdiction, although he cites N.H. R.S.A.
§ 531:1.
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the petition.” 	Id. 	“Federal courts are authorized to dismiss
summarily any habeas petition that appears legally insufficient
on its face.” 	McFarland v. Scott, 512 U.S. 849, 856 (1994).
The court construes [Petitioner]’s pleadings liberally,
considering his pro se status. See Dutil v. Murphy, 550 F.3d
154, 158 (1st Cir. 2008).
Background
Avery states in his petition that he was convicted of first
degree murder on May 19, 1975, and was sentenced to a term of
imprisonment of eighteen years to life. 	Avery was initially
indicted for the murders of Lee Ann Greeley and Gary Russell,
but after his conviction of the murder of Greeley, the state
entered a nolle prosequi for the other indictment. 	State v.
Avery, 126 N.H. 208, 210 (1985). 	His conviction was affirmed on
appeal. 	Id. 	Avery moved for a new trial and for a writ of
habeas corpus in state court, which were denied. 	Avery v.
Cunningham, 131 N.H. 138 (1988).
Avery then sought a writ of habeas corpus in this court,
which was denied. 	Avery v. Commissioner, 92-cv-262-SM (D.N.H.
Dec. 14, 1993), aff’d 1994 WL 446785 (1st Cir. Aug. 18, 1994).
He filed a petition for a writ of error coram nobis on June 25,
2001, which was denied. 	Avery v. Commissioner, 01-cv-246-SM
(Nov. 2, 2001). 	Avery filed a petition in the District of Rhode
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Island, which was denied as a second or successive petition.
Avery v. Stanley, 2003 WL 22533691 (D.R.I. Oct. 23, 2003).
Avery filed another petition in this court in 2006, which
was denied as untimely and a second or successive petition.
Avery v. Wall, 006-cv-448-SM (D.N.H. Dec. 21, 2006). 	In 2008,
he filed a motion to set aside the decision denying his first
habeas petition, which was denied. 	Avery v. Commissioner, 2008
DNH 041, 2008 WL 505983 (D.N.H. Feb. 20, 2008).
In his current petition, Avery states that he had a
scheduled hearing before the New Hampshire Adult Parole Board
(“APB”) for November 14, 2019, that was rescheduled for December
5, 2019. 	Before the hearing, Avery wrote to Ashlyn St. Germain,
a member of the APB, asking that former chief of police in
Henniker, New Hampshire, Timothy Russell, not be permitted to
attend the hearing. 	He did not receive an answer.
Avery’s case manager told him the day before the hearing
that no people would be attending the hearing. 	Nevertheless,
family members of Lee Ann Greeley and Gary Russell attended and
spoke at the hearing about their views of the murders. 	Avery
disputes the truth of their statements. 	When asked for his
response, Avery said that he was sorry that Greeley had been
killed but that he did not kill her and that the indictment
pertaining to Russell’s murder had been dismissed.
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An issue arose during the hearing about a sexual offender
treatment assessment. Avery alleges that he was told he would
not have another parole hearing unless he could accept
responsibility for his offense, complete a sexual offender
treatment assessment, and follow any recommendations made.
Parole was denied.
In his claims, Avery asserts that all of the actions of the
APB are null and void because his conviction was based on a New
Hampshire statute that was repealed before his conviction. 	He
argues that first-degree murder is not and was not at the time
of his conviction a crime under the law of New Hampshire. 	He
contends that the APB conditioned a parole hearing on whether he
would admit guilt to the crime of conviction, first-degree
murder, in violation of the New Hampshire Constitution and the
Fifth Amendment of the United States Constitution. 	He further
argues that the defendants violated New Hampshire law, Parole
Practice and Procedure rules, and the New Hampshire Constitution
by allowing people other than permitted witnesses to attend his
APB hearing.
Discussion
Avery has previously filed petitions that challenged the
legal basis for his conviction. 	To the extent Avery challenges
the legal basis for his conviction in this petition, he is
bringing a second or successive § 2254 petition. 	This court
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lacks subject matter jurisdiction to consider a second or
successive petition unless the First Circuit Court of Appeals
has authorized the court to consider it. 	28 U.S.C. §
2244(b)(3)(A); Trenkler v. United States, 536 F.3d 85, 96 (1st
Cir. 2008). 	Because Avery has not shown authorization, this
court lacks jurisdiction to consider the claims that challenge
the legal basis for his conviction.
Avery also challenges the actions of the defendants in
conducting his parole hearing and in requiring him to accept
responsibility for his offense before having another hearing.
When a prisoner challenges a state’s parole determination
through a § 2254 petition, the court must focus first on whether
the prisoner has alleged a claim that implicates a federal
right. 	Swarthout v. Cooke, 562 U.SA. 216, 221-22 (2011).
“There is no constitutional or inherent right of a
convicted person to be conditionally released before the
expiration of a valid sentence.” 	Greenholtz v. Inmates of
Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979). 	For that
reason, prisoners do not have a “liberty right” to parole under
federal law. 	Ainsworth v. Stanley, 317 F.3d 1, 5 (1st Cir.
2002). 	Under New Hampshire law parole is a privilege not a
right. 	Petition of Warden (State v. Roberts), 168 N.H. 9, 14
(2015); see also Ainsworth, 317 F.3d at 5. 	For that reason, New
Hampshire prisoners have no liberty interest in parole, and the
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denial of parole before the expiration of the prisoner's full
sentence does not implicate the prisoner's due process rights.
Stow v. Warden, 21-cv-156-JL, 2021 WL 2651985, at *2 (D.N.H.
June 15, 2021); Higgins v. Blaisdell, 2012 WL 2523404, at *6
(D.N.H. Feb. 1, 2012).
Avery primarily challenges the parole decision based on
asserted violations of state law and rules. 	He also argues that
the requirement that he accept responsibility for his offense
violates the Fifth Amendment’s protection against self
incrimination. 	He is mistaken. 	Because he has been convicted
of first-degree murder, he has not shown that a requirement that
he accept responsibility for that murder does not violate his
Fifth Amendment rights.
In addition, there is a one-year limitation period for
bringing petitions under § 2254. 	28 U.S.C. § 2244(d)(1). 	The
time expired long ago for Avery to challenge his conviction.
The parole decision was issued on December 5, 2019, which is
more than a year before he filed the petition in this case.
Further, Avery does not show that he exhausted state remedies
with respect to the APB decision. 	See 28 U.S.C. § 2254(b); see
also Chase v. Walker, 12-58-M, 11-483-M, 2012 WL 3776344, at *4
(D.R.I. July 31, 2012).
Because of these deficiencies, Avery does not state a
viable claim for relief under § 2254.
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Conclusion
For the foregoing reasons, the district court judge should
dismiss the petitions for a writ of habeas corpus (documents
nos. 1 and 5) on preliminary review pursuant to § 2254 Rule 4.
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).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
July 11, 2022
cc: Edgar Clifford Avery, Jr., pro se
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