Starr v . NHSP Warden 07-CV-311-SM 08/05/08 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Darren Starr, Petitioner

v. Civil N o . 07-cv-311-SM Opinion N o . 2008 D N H 132 Larry Blaisdell, Warden, Northern N H Correctional Facility, Respondent

O R D E R

Darren Starr, an inmate at the Northern New Hampshire

Correctional Facility, petitions for a writ of habeas corpus. 28

U . S . C . § 2254. He says he is being held in violation of his

right to due process because he was sentenced in accordance with

N . H . R E V . STAT. A N N . (“RSA”) § 651:2, II-e, New Hampshire’s truth-

in-sentencing law, and that statute was enacted without notice to

the public. Before the court is respondent’s motion for summary

judgment. Petitioner objects. For the reasons given,

respondent’s motion is granted.

Background

On November 1 7 , 1987, petitioner was convicted of second-

degree murder. He was “sentenced to a term of twenty-eight years

to life imprisonment in accordance with R S A 651:2, II-e.” Starr

v . Governor, 154 N . H . 1 7 4 , 175 (2006). R S A 651:2, II-e, was a product of the 1981-82 special

session of the New Hampshire legislature. See id. The

legislature was called into session by a resolution of the

Governor and Council (“G&C resolution”) that enumerated various

matters requiring legislative attention. Truth in sentencing was

not among the matters enumerated.

The special session convened on November 1 7 , 1981. Among

the bills introduced that day was H B 2 0 , titled an act “relative

to minimum mandatory sentences for driving while intoxicated.”

N . H . H . R . JOUR. 19 (1981-82 Spec. Sess.) (hereinafter “ H . J O U R . ” ) .

On December 3 0 , 1981, Representative Carswell, one of the authors

of H B 2 0 , filed an amendment to the bill. The amendment renamed

the bill an act “relative to minimum mandatory sentences for

driving while intoxicated and various other crimes” (Pet., Appx.

at 4 5 ) , and it included a provision requiring that persons

convicted of certain crimes serve their full statutory minimum

sentences (see i d . ) . The House Judiciary Committee held a

hearing on H B 2 0 , including the truth-in-sentencing amendment, on

January 5 , 1982. (See id. at 54-55.) After consideration by the

House, see H . JOUR. 2 5 , 35-37, 3 9 , the Senate, see H . JOUR. 7 7 ;

N . H . S . JOUR. 9 6 , 149-57 (1981-82 Spec. Sess.) (hereinafter “ S .

J O U R . ” ) , and a conference committee, see H . JOUR. 4 7 6 , 486; S .

JOUR. 209, 770-71, 813-14, H B 20 was enrolled on May 1 3 , 1982,

2 see H . JOUR. 519; S . JOUR. 8 6 6 , and became effective on May 2 2 ,

1982, see 1981-82 N . H . LAWS 8 7 .

“In December 2004, [Starr] sought a declaratory judgment

that the legislature had illegally adopted R S A 651:2, II-e.”

Starr, 154 N . H . at 175. The crux of his claim was that the

legislature had no authority to take up matters, such as truth in

sentencing, that were not enumerated in the G & C resolution, and

that because the G & C resolution did not mention truth in

sentencing, his right to due process was violated by the

enactment of R S A 651:2, II-e. Id. The absence of truth in

sentencing from the G & C resolution was the entire basis for

Starr’s due process claim. See Starr, 154 N . H . at 179. “[T]he

Governor . . . responded with a motion to dismiss, which was

granted on March 3 , 2005.” Id. at 175.

On appeal, the New Hampshire Supreme Court “assume[d],

without deciding, that [the New Hampshire] constitutional due

process protections attend the passage of legislation, [and]

conclude[d] that the legislature provided such protections in

this case.” Id. at 179. The Court went on to hold:

The Federal Constitution offers the petitioner no greater protection than does the State Constitution under these circumstances. See L C & S [ , Inc. v . Warren County Area Plan Comm’n, 244 F.3d [601,] 605

3 [(7th Cir. 2001)] (concluding that “bona fide” legislation requires no notice or opportunity to be heard). Accordingly, we reach the same result under the Federal Constitution as we do under the State Constitution.

Starr, 154 N.H. at 180.

As construed by the magistrate judge, petitioner’s claim is

this:

[P]rior to passage of the “truth in sentencing law,” the public was not given adequate notice or an opportunity to be heard regarding that law, and the enactment of the law, therefore, violated the due process requirements of the Fourteenth Amendment. Accordingly . . . enforcement of that statute, to deprive [petitioner] of the ability to earn good time credits to reduce his minimum sentence, violates his constitutional rights.

(Order (document n o . 4 ) at 4.)

The Legal Standard

Federal habeas corpus relief may be granted “only on the

ground that [a petitioner] is in custody in violation of the

Constitution or laws or treaties of the United States.”

(a). Passage of the Anti-Terrorism and Effective

Death Penalty Act of 1996 (“AEDPA”),

(d), has

significantly limited the power of the federal courts to grant

habeas corpus relief to state prisoners.

4 When a petitioner’s claim “was adjudicated on the merits in

State court proceedings,”

a federal court may disturb a

state conviction only when: (1) the state court adjudication

“resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding,”

(d)(2); or (2) the

state court’s resolution of the issues before it “resulted in a

decision that was contrary t o , or involved an unreasonable

application o f , clearly established Federal law, as determined by

the Supreme Court of the United States,”

(d)(1);

see also Williams v . Taylor,

6 2 , 399 (2000).

Notwithstanding petitioner’s argument to the contrary, his

petition is subject to AEDPA’s strict standard of review, because

his federal due process claim “was adjudicated on the merits in

state court proceedings.” Norton v . Spencer,

, 5 (1st

Cir. 2003) (quoting Fortini v . Murphy,

9 , 47 (1st Cir.

2001); citing Ellsworth v . Warden,

, 6 (1st Cir.

2003)). Specifically, in reliance upon L C & S , 244 F.3d at 605,

the state supreme court ruled that legislative action is not

subject to the due process requirements of the Fourteenth

Amendment, and thus held that the manner in which HB 20 was

5 enacted did not violate Starr’s federal constitutional rights.1

Discussion

Respondent argues that he is entitled to judgment as a

matter of law because: (1) the legislature’s enactment of HB 20

did not violate petitioner’s procedural due process rights; (2)

enactment of HB 20 did not violate petitioner’s substantive due

process rights; and (3) petitioner cites no authority to support

his claim that specific enumeration in the G&C resolution was

necessary to provide notice to the public of the matters the

legislature would be taking up at its special session.

Petitioner counters that: (1) he is entitled to de novo review;2

(2) the state supreme court erroneously found, as a factual

matter, that members of the public had spoken at the January 5

hearing on HB 2 0 ; (3) the state supreme court incorrectly

determined that public testimony at the January 5 hearing

demonstrated the adequacy of public notice concerning the truth-

in-sentencing amendment to HB 2 0 ; (4) he has provided authority

1 In its analysis under the state constitution, the New Hampshire Supreme Court did not decide whether “constitutional due process protections attend the passage of legislation,” Starr, 154 N.H. at 179, but assumed that they did, id. However, that determination pertained to petitioner’s state constitutional claim, not his federal constitutional claim, which is at issue here. 2 As already explained, petitioner is incorrect.

6 for the proposition that enumeration in the G&C resolution was a

necessary prerequisite for legislative consideration of truth in

sentencing;3 (5) the cases respondent cites are inapposite; and

(6) due process attaches to the enactment of legislation. More

specifically, he argues:

The Petitioner is not saying that h e , or any other individual, was entitled to personalized notice prior to the enactment [of the] TSA [truth in sentencing a c t ] . The Petitioner is also not presenting that he was entitled to some type of notice or hearing before the requirements of [the] TSA applied to his sentence. The petitioner is asserting that the legislature, especially when meeting in special session, had to provide some type of general notice to the citizens to apprise them that [the] TSA was being considered and/or enacted so that interested individuals could speak at the public hearings. Where no public notice was provided, the legislature violated the due process of the Fourteenth Amendment by failing to provide adequate notice.

(Pet’r’s Mem. of Law (document n o . 10-2) at 8-9.) He further

argues: “In the present matter, no notice of [the] TSA was

provided to the public, absolutely none. Therefore, the

enactment of the TSA was in violation of the Fourteenth Amendment

and invalid.” (Id. at 10.)

3 The four cases petitioner cites are all from other states and turn on an analysis of state constitutional provisions. None of them addresses the issue in this case, which is whether the procedure employed by the New Hampshire legislature offended the federal constitution.

7 Under AEDPA’s strict standard of review, respondent is

entitled to prevail because the New Hampshire Supreme Court did

not render a “decision that was contrary t o , or involved an

unreasonable application o f , clearly established Federal law, as

determined by the Supreme Court of the United States,”

(d)(1).

Petitioner cites three United States Supreme Court opinions

in his brief. One concerned “the constitutional sufficiency of

notice to beneficiaries on judicial settlement of accounts by the

trustee of a common trust fund established under the New York

Banking Law.” Mullane v . Cent. Hanover Bank & Trust Co.,

(1950). The second concerned whether a person

could be prosecuted under both federal and state law for “the

manufacture of intoxicating liquor for beverage purposes,” Hebert

v . Louisiana,

1 2 , 313 (1926), and whether the United

States Supreme Court had the authority to decide whether the

Louisiana Supreme Court had correctly construed a Louisiana

statute,

. Mullane and Hebert are so different from

this case that the New Hampshire Supreme Court’s decision on

Starr’s appeal could not have been either contrary to or an

unreasonable application of those decisions. See Williams v .

Taylor,

6 2 , 399 (2000) (construing the “contrary to”

and “unreasonable application” clauses); Sleeper v . Spencer, 510

2 , 38 (1st Cir. 2007) (citing L’Abbe v . DiPaolo,

3 , 96 (1st Cir. 2002)) (construing the “unreasonable

application” clause).

The third Supreme Court case petitioner cites was a

constitutional challenge to an Indiana “statute providing that a

severed mineral interest that is not used for a period of 20

years automatically lapses and reverts to the current surface

owner of the property, unless the mineral owner files a statement

of claim in the local county recorder’s office.” Texaco, Inc. v .

Short,

(1982). Texaco, however, was a

challenge to the substance of the Indiana statute, not the

procedure by which it was enacted. Moreover, the Supreme Court

explained in Texaco that “[t]he due process standards of Mullane

apply to an ‘adjudication,’”

, and that “[t]he

Court in Mullane itself distinguished [from an adjudication] the

situation in which a State enacted a general rule of law,”

Thus, the Texaco opinion underscores the inapplicability of

Mullane to the facts of this case.

The New Hampshire Supreme Court’s decision in petitioner’s

direct appeal was neither contrary to nor an unreasonable

application of Mullane, Hebert, Texaco, or any other decision by

the United States Supreme Court. The Court has never imposed, or

9 implied the existence o f , any federal due process requirement

with regard to the process by which state legislation is enacted.

And, it certainly has not held that the federal due process

clause precludes a state legislature meeting in special session

from considering matters not enumerated in the executive branch

resolution or proclamation that called it into session. To the

contrary, the Court has held that when state statutes grant

officials immunity from tort claims, or adjust welfare benefits,

“the legislative determination provides all the process that is

due.” Logan v . Zimmerman Brush Co.,

2 2 , 433 (1982)

(citing Bi-Metallic Inv. C o . v . State Bd. of Equalization,

(1915)); c f . Atkins v . Parker,

(1985)

(“The procedural component of the Due Process Clause does not

‘impose a constitutional limitation on the power of Congress to

make substantive changes in the law of entitlement to public

benefits.’”) (quoting Richardson v . Belcher,

8 , 81

(1971)). Because the United States Supreme Court has never

interpreted the due process clause to require those affected by

legislation to receive any form of notice beyond that provided by

the legislative process itself, and has never established any

constitutional standard for the forms of public notice that a

state legislature must provide before it may enact legislation of

general applicability, the New Hampshire Supreme Court did not

render a decision that was either contrary to or an unreasonable

10 application of federal law when it ruled that petitioner’s

federal due process rights were not violated by the manner in

which R S A 651:2, II-e, was enacted. Accordingly, respondent is

entitled to judgment as a matter of law.

Finally, the court notes the lack of factual support for

petitioner’s claim that the public was given no notice that the

legislature was considering truth in sentencing during the 1981-

82 special session. The public record demonstrates that: (1) the

truth-in-sentencing amendment to H B 20 was discussed at the

January 5 , 1982, public hearing; (2) the amendment was mentioned

in the January 2 1 , 1982, House Journal, which stated: “The

amendment specifies certain serious crimes for which the full

minimum sentence imposed shall be served,” H . JOUR. 2 5 ; (3) the

full text of a truth-in-sentencing amendment was published in the

January 2 8 , 1982, House Journal,

, which

characterized H B 20 as pertaining “to the parole, sentencing and

credit for good conduct of prisoners,”

at 3 5 ; and (4) the

amendment was debated on the floor of both the House, H . JOUR.

2 5 , 3 7 , and the Senate, S . JOUR. 149-56. Approximately four

months before H B 20 was finally adopted, the public had been

given notice in a variety of forms that the legislature was

contemplating the enactment of a truth-in-sentencing law. On

11 that basis, even under de novo review, respondent would be

entitled to judgment as a matter of law.

Conclusion

For the reasons given, respondent’s motion for summary

judgment (document n o . 9 ) is granted. The clerk of the court

shall enter judgment in accordance with this order and close the

case.

SO ORDERED.

/Steven ___ . McAuliffe / Chief Judge

August 5, 2008

cc: Darren Starr, pro se John R. Lilly, Esq. Nancy J. Smith, Esq. John Vinson, NH Department of Corrections Stephen D. Fuller, Esq., NH Attorney General’s Office

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