UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Robert Hurlburt, Petitioner v. Civil N o . 95-442-M

Michael Cunningham, Warden of the N.H. State Prison, Respondent

ORDER

Respondent, the Warden of the New Hampshire State Prison,

moves to dismiss Robert Hurlburt's petition for writ of habeas

corpus. He claims that Hurlburt has not fairly presented the

issues raised in the petition to the state courts and that

Hurlburt has failed to exhaust available state avenues of relief.

Hurlburt's claim is limited; he says that he was deprived of

rights to due process guaranteed him by the United States

Constitution when the New Hampshire Superior Court denied his

application for suspension of his state criminal sentence. See

N.H. Rev. Stat. Ann. ("RSA") Ch. 651:20 (1994). He asserts that the state court was obligated, at a minimum, to afford him an

evidentiary hearing on his motion for post-conviction relief

because he had relevant evidence and testimony regarding his

"good institutional record and other mitigating information as

reasons for suspension of a portion of his sentence." Attachment

to Petition for Habeas Corpus at 2 . Hurlburt also complains that

the New Hampshire Supreme Court deprived him of federal

constitutional rights when it declined to hear his appeal from

the trial court's denial of his application for sentence

suspension.

At the outset, it would seem that Hurlburt has no state due

process right to an evidentiary hearing (or to a personal

appearance in state court) relative to a suspension petition

filed under RSA 651:20. See State v . Gibbons,

(1992); State v . Roy,

(1993). In any event, it is

clear that at the state level Hurlburt did not claim any federal

constitutional right to either: (i) an evidentiary hearing before

the trial court under the state statute; or (ii) consideration of

his appeal by the state Supreme Court.

2 Review of the record shows that Hurlburt did not "fairly

present" to the New Hampshire Supreme Court the federal

constitutional claims he now raises in this court, either on

direct appeal from the denial of his suspension application, or

by way of state habeas proceedings. The exhaustion requirement

applicable to habeas petitions filed in federal court by state

prisoners mandates that the same issues presented in federal

court must first be presented to the state courts. The

exhaustion requirement is not met when a petitioner raises one

issue in state court and another, distinct issue in federal

court; the same claim urged in federal court must first have been

fairly presented to the state courts. See Picard v . Connor,

7 0 , 275-76 (1971); Scarpa v . Dubois,

, 6 (1st Cir.

1994), cert.denied,

(1995); Nadworny v . Fair,

(1st Cir. 1989).

Accordingly, because Hurlburt has, at the least, failed to

fairly present to the state courts the issues he seeks to raise

here, his petition is dismissed without prejudice for failure to

exhaust state remedies.

3 SO ORDERED.

Steven J. McAuliffe United States District Judge May 7 , 1996 cc: Jeffrey S . Cahill, Esq. Robert C . Hurlburt, Pro Se

4