UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Ronald W. Martin

v. Civil No. 17-cv-408-JD Opinion No.

Warden, New Hampshire State Prison for Men

O R D E R

Ronald W. Martin, proceeding pro se, filed a petition for

a writ of habeas corpus pursuant to

,

challenging the sentences imposed in his state court case. The

Warden moves to dismiss the petition, arguing that Martin has

not raised grounds to support habeas relief. Martin objects.

Standard of Review

A party may move to dismiss an action for “failure to state

a claim upon which relief can be granted.” Fed. R. Civ. P.

12(b)(6).1 In considering a motion to dismiss under Rule

12(b)(6), the court accepts as true all of the properly pleaded

facts and draws reasonable inferences in favor of the nonmoving

party. Lemelson v. Bloomberg L.P.,

(1st Cir.

2018). The court does not credit “legal labels or conclusions,

1 “The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.” Rule 12, Rule Governing Section 2254 Cases. or statements that merely rehash elements of the cause of

action.”

Based on the properly pleaded facts and

reasonable inferences taken from those facts, the court

determines whether the petitioner alleges a plausible claim for

relief.

Background

Martin was convicted, following a jury trial in state

court, on one charge of felonious sexual assault and three

charges of aggravated felonious sexual assault, which crimes

occurred between August 10, 1984, and February 19, 1991. He was

sentenced to three prison terms of not more than fifteen years

nor less than seven and one-half years and one term of not more

than seven years nor less than three and one-half years. The

four prison terms are to be served consecutively.

The New Hampshire Supreme Court affirmed Martin’s

conviction on July 6, 2017. Proceeding pro se, Martin filed a

habeas petition in this court on September 12, 2017. Martin

then moved to stay the proceeding here to allow him time to

exhaust issues in state court. His motion was granted, and the

case was stayed.

Martin filed a motion in Merrimack County Superior Court to

vacate his sentences and to remand his case for resentencing.

In support, Martin argued that under the version of RSA 651-A:6,

2 II in effect when he committed the initial crime in 1984, he

should be eligible for parole after serving the minimum amount

of his longest sentence, seven and one-half years. He argued

that his consecutive sentences did not comply with that version

of the statute. The state objected.

The court denied Martin’s motion to vacate his sentence.2

State v. Martin, 217-2015-CR-00314; 211-2015-CR-00174 (Merrimack

Cty. Sup. Ct. Dec. 2, 2017). The court explained that the New

Hampshire Supreme Court had interpreted the 1991 version of RSA

651-A:6 in an unreported decision, Blackstock v. Executive

Assistant, Adult Parole Board, No. 2014-0720,

,

at *6 (N.H. Supreme Ct. June 9, 2016), and determined that the

statute did not establish a minimum parole date, contrary to

Martin’s theory. The court also explained that because Martin

could be paroled to his next consecutive sentence, even if he

became eligible for parole after serving seven and one-half

years, his consecutive sentences were not unlawfully imposed.

On appeal, the New Hampshire Supreme Court affirmed the

superior court decision. State v. Martin, 2018-0063 (N.H.

Supreme Ct. Sept. 14, 2018). The supreme court rejected

Martin’s interpretation of RSA 651-A:6, II and agreed with

2 The judge who presided during Martin’s trial and sentencing heard his motion to vacate his sentence.

3 Blackstock and the superior court’s ruling. The supreme court

also held, agreeing with the superior court, that the 1991

amendment to RSA 651-A:6, II did not make any change that was

material to Martin’s claims. In addition, the supreme court

affirmed the superior court’s authority to impose consecutive

sentences.3

On October 15, 2018, Martin moved to lift the stay in this

court and provided an addendum to his petition. His motion was

granted.

In support of his petition for habeas relief under § 2254,

Martin contends that based on the Fourteenth Amendment due

process clause and Department of Corrections Policy and

Procedure Directives he was entitled to be sentenced in accord

with the statutory provisions in effect at the time of his

charged offenses in 1984. He further argues that the 1991

amendments cannot be applied to him because that would result in

a violation of the ex post facto clause. He contends that the

version of RSA 651-A:6, II in effect in 1984 would set his

eligibility for parole after he served seven and one-half years

of his prison terms. Martin contends in his addendum to his

petition that the superior court and the supreme court erred in

3 The supreme court further held that because Martin failed to provide the pleadings that he submitted to the trial court, it would not consider any other issues that he may have raised.

4 their interpretations of RSA 651-A:6, II and Blackstock and that

his interpretation is correct. He also contends that those

courts made other errors in their decisions.

Discussion

The Warden moves to dismiss Martin’s petition on the

grounds that there is no constitutional right to parole;

Martin’s challenge based on RSA 651-A:6, II raises an issue of

the correct interpretation of a state statute; and Martin has

defaulted any other federal claims by failing to properly raise

them on appeal to the New Hampshire Supreme Court. Martin

objects to the motion on procedural grounds, asserting that the

Warden did not comply with the court’s order issued on October

18, 2018, and that the Warden should not have filed a copy of

the New Hampshire Supreme Court’s decision in his direct appeal.

On the substantive issues, Martin contends that he has a liberty

interest in parole which is protected by the Fourteenth

Amendment; that it is illegal under his interpretation of RSA

651-A:6, II and other statutes and administrative provisions to

parole him into consecutive sentences; and that he properly

preserved his claims before the New Hampshire Supreme Court.

5 A. Procedural Objections

Martin contends that the court should “default” the Warden

because the Warden did not abide by the order issued on October

18, 2018. Martin does not explain what he perceives to be

noncompliant. Because he references the date he received the

motion, December 21, 2018, he may think that the motion was

untimely. He also mentions a copy of the New Hampshire Supreme

Court’s decision on his direct appeal that was filed by the

Warden.

In the October 18 order, the magistrate judge directed the

Warden “to file an answer or motion to dismiss the claims in the

petition and in the addendum (Doc. Nos. 1, 9), within ninety

days of this Order.” Doc. no. 10, at *1. The Warden filed the

motion to dismiss on December 20, 2018, well within the ninety-

day time. Therefore, the motion is not untimely.

Martin faults the Warden for filing a copy of the New

Hampshire Supreme Court’s decision on his direct appeal with the

motion to dismiss. If Martin believes that was a violation of

the October 18 order, he has not explained why. While Martin

states that the filed opinion “has not yet been presented to

this Honorable Court,” he does not explain what he means or why

that is a problem.

Martin provides no procedural grounds to deny the motion.

6 B. Motion to Dismiss Martin’s Claims

Under § 2254, a petition may be granted only in two

circumstances. The first ground for habeas relief exists if the

state court proceedings “resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of

the United States.” § 2254(d)(1). The second ground exists if

the state court proceedings “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.”

§ 2254(d)(2).

1. Exhausted Claims

In this case, Martin challenges the New Hampshire Supreme

Court’s interpretation of § 651-A:6, II, a state law, and the

imposition of consecutive sentences under state law. He has not

shown or even argued that the New Hampshire Supreme Court’s

decision is contrary to or an unreasonable application of

federal law, as interpreted by the United States Supreme Court.4

4 To the extent Martin argues that he has a liberty interest in parole that is protected by the Fourteenth Amendment, it appears that claim was not raised in the state court proceedings. Even if such a claim could be raised in the context of a § 2254 petition and if Martin’s interpretation of RSA 651-A:6, II were applied, he would not yet be eligible for parole and has no such liberty interest. See Griffin v. N.H. Dep’t of Corrs.,

, at *3 (D.N.H. Sept. 21, 2017).

7 Instead, his claim is based entirely on state law and state

administrative rules. He contends that the New Hampshire

Supreme Court erred in affirming the superior court’s

interpretation of RSA 651-A:6, II and the ruling that

consecutive sentences are legal.5

The New Hampshire Supreme Court’s decision cannot be

appealed to this court. See Klimowicz v. Deutsche Bank Nat’l

Tr. Co.,

(1st Cir. 2018) (“The Rooker-Feldman

doctrine preserves the Supreme Court’s exclusive jurisdiction

over appeals from final state-court judgments.” (internal

quotation marks omitted)). Further, when applying New Hampshire

law, this court is bound by the New Hampshire Supreme Court’s

teachings. See Johnson v. Fankell,

(1997); N.

Am. Specialty Ins. Co. v. Lapalme,

(1st Cir.

2001). Therefore, Martin has not alleged a claim for relief

under § 2254 based on the state courts’ interpretation and

application of RSA § 651-A, II and the imposition of consecutive

sentences.

5 Because Martin presents only a legal issue, there is no claim based on an unreasonable determination of the facts.

8 2. Procedurally Defaulted Claims

To the extent Martin may have presented other claims to the

trial court, the New Hampshire Supreme Court held that those

claims were not properly preserved.6 Specifically, the supreme

court held that it would not review any issue that Martin had

not raised before the trial court, citing Supreme Court Rule

16(3)(b) and State v. Wilson,

(2017). Because

it was Martin’s burden to provide the record on appeal to show

what issues had been preserved and Martin failed to provide any

of the pleadings submitted to the trial court, the supreme court

declined to address other arguments raised in his brief.

Federal habeas review is precluded by procedural default

when “the state court declined to address a prisoner’s federal

claims because the prisoner had failed to meet a state

procedural requirement.” Coleman v. Thompson,

(1991). A state-court decision not to address a claim is

preclusive if the decision “‘rests on a state law ground that is

independent of the federal question and adequate to support the

judgment.’” Lee v. Corsini,

(1st Cir. 2015)

6 Martin submitted his state court motion to vacate his sentences and for resentencing as an exhibit to the addendum to his petition in this case. The motion focuses on Martin’s interpretation of RSA 651-A:6, II and the effect of consecutive sentences and does not appear to raise any other claims or issues.

9 (quoting Walker v. Martin,

, 315 (2011)). A

petitioner can avoid the effect of procedural default by showing

an adequate cause for the default and actual prejudice or

innocence. Berthoff v. United States,

(1st

Cir. 2002).

Martin asserts that he has demonstrated here what claims

were exhausted in state court, argues that the New Hampshire

Supreme Court’s instructions did not require him to file his

motion from the trial court, and disputes the supreme court’s

decision that he defaulted other claims. Martin, however, does

not identify what other claims he raised in the trial court that

the supreme court failed to address. Instead, his objection to

the motion to dismiss focuses on the interpretation and

application of RSA 651-A:6, II and the legality of consecutive

sentences, which were addressed by the New Hampshire Supreme

Court. Martin does not raise cause and actual prejudice for his

default.

Therefore, if Martin intended to raise claims here that

were not considered by the New Hampshire Supreme Court, those

claims were procedurally defaulted. For that reason, they

cannot be considered under § 2254.

10 Conclusion

For the foregoing reasons, the Warden’s motion to dismiss

(document no. 12) is granted.

Martin’s motion for subpoenas (document no. 14) is denied

as moot.

Martin has not made a substantial showing of the denial of

a constitutional right.

(c). Therefore, the

court declines to issue a certificate of appealability.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

______________________________ Joseph A. DiClerico, Jr. United States District Judge

January 10, 2019

cc: Ronald W. Martin, pro se Elizabeth C. Woodcock, Esq.

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