Couch v. NH State Prison CV-96-547-B 12/07/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
James F . Couch
v. Civil No. 96-547-B
Michael J. Cunningham, Warden New Hampshire State Prison
MEMORANDUM AND ORDER
Petitioner James F. Couch is currently serving a three-and-
one-half- to seven-year sentence in the New Hampshire State
Prison for felonious sexual assault, a Class B felony, in
violation of N.H. Rev. Stat. Ann. § 632-A:3. He has petitioned
this Court for a writ of habeas corpus pursuant to 28 U.S.C. §
2254 (West 1994 & Supp. 1998), claiming five alleged violations
of his constitutional rights. The matter is before me on cross
motions for summary judgment, filed pursuant to Fed. R. Civ. P.
56. For the following reasons, I grant the State's motion and
dismiss Couch's petition without prejudice.
I. FACTS
Couch pled guilty to felonious sexual assault on February 6,
1993, in Cheshire County Superior Court. As part of his plea agreement. Couch was sentenced to 12 months in the Cheshire
County House of Corrections and five years of probation.1 He
also received a two- to four-year state prison sentence, which
was deferred for one year following his release from the House of
Corrections. Thirty days prior to the expiration of the deferred
period. Couch was reguired to show cause why the state prison
sentence should not be imposed. If he failed to do so, his
sentence provided that he would have to serve the deferred state
prison sentence.
Couch served 12 months in the Cheshire County House of
Corrections. Upon release, he executed a probation contract
stating that he agreed to participate in and complete the
Monadnock Family Services sex offender treatment program. Couch
was subseguently denied admission to the Monadnock program. He
was arrested, charged with violating his probation, and sentenced
to three-and-one-half- to seven-years in the state prison.2
With the assistance of counsel. Couch appealed to the New
Hampshire Supreme Court, alleging that the superior court's
1 Couch's sentence provided that "violation of probation . . . may result in revocation of probation . . . and imposition of any sentence within the legal limits for the underlying offense."
2 Couch also received credit for 373 days served, which included his 12 months in the Cheshire County House of Corrections and pre-probation revocation hearing confinement.
- 2 - determination that he violated probation was unsupported by the
record. The supreme court affirmed the superior court's
decision. Couch, acting pro se, subsequently filed a petition
for a writ of habeas corpus in the Cheshire County Superior
Court, alleging that the state breached his plea agreement and
that his probation revocation sentence constituted a double
jeopardy violation. The superior court denied Couch's petition
and his motion for reconsideration, which also alleged due
process violations based on the court's refusal to provide Couch
with transcripts of his plea agreement.
Couch did not appeal the superior court's decision. Rather,
he filed a petition for a writ of certiorari with the New
Hampshire Supreme Court, seeking review of the superior court's
denial of his petition and his motion for reconsideration, as
well as the court's refusal to provide him with the requested
transcripts. The supreme court denied Couch's petition on
September 30, 1996.3 Couch filed his petition for a writ of
3 The New Hampshire Supreme Court issued an order on August 16, 1996, directing Couch to submit a memorandum explaining why the court should not deny his petition for a writ of certiorari based on Couch's failure to follow the court's procedural rules. Specifically, the court noted that "Supreme Court Rule 11(2) (g) requires that a petition for original jurisdiction set forth why the relief sought is not available in any other court or cannot be had through other processes. Review on certiorari is an extraordinary remedy, usually available only in the absence of a
- 3 - habeas corpus in this court on November 1, 1996. He subsequently
sought a stay of proceedings to seek counsel and, with the
assistance of counsel, filed the amended petition now before me.
II. DISCUSSION
Couch advances five claims in support of his petition.
First, he argues that his probation violation sentence of three-
and-one-half- to seven-years runs afoul of the Double Jeopardy
Clause of the Fifth Amendment to the United States Constitution.
Second, he claims that the New Hampshire Adult Parole Board's
("Board") requirement that he complete a state prison sexual
offender program ("SOP") before it will grant him parole violates
the Double Jeopardy Clause. Third, Couch claims that the SOP
requirement breaches his plea agreement and violates the Due
Process Clause of the Fourteenth Amendment to the U.S.
Constitution. Fourth, he claims that his probation was revoked
in violation of his procedural due process rights. Finally, he
claims his probation was revoked in violation of substantive due
process protections.
right to appeal . . . . It appears that the petitioner may have had an adequate alternative remedy in that he may have had the right to appeal from the March 26 decisions of the superior court." Couch filed the required memorandum on August 27, 1996. The court later denied his petition without further comment.
- 4 - The State contends that Couch is procedurally barred from
bringing his first claim4 and that his four remaining claims are
unexhausted. Because I find that Couch has failed to exhaust his
state court remedies as to all counts, his petition is "mixed"
and I must dismiss it in its entirety without prejudice. See 28
U.S.C. § 2254 (b)(1)(A). See also Rose v. Lundv, 455 U.S. 509,
522 (1982)("a district court must dismiss habeas petitions
containing both unexhausted and exhausted claims").
A petition for habeas corpus "shall not be granted unless it
appears that the applicant has exhausted the remedies available
in the courts of the State, or that there is either an absence of
available State corrective process or the existence of
circumstances rendering such process ineffective to protect the
rights of the prisoner." 28 U.S.C. § 2254(b). The exhaustion
reguirement ensures that a petitioner has afforded the state
court a fair opportunity to address the petitioner's federal
constitutional claims and correct any constitutional error prior
to review by a federal court. See Picard v. Connor, 404 U.S.
270, 275 (1971); Hall v. DiPaolo, 986 F.2d 7, 10 (1st Cir. 1993).
4 The State asserts that Couch is barred from bringing Count I of his complaint, as the New Hampshire Supreme Court denied his petition for a writ for certiorari on procedural grounds. Because his remaining claims are unexhausted, I need not address the issue in this order. See Rose, 455 U.S. at 522.
- 5 - A "fair opportunity" means that the claim must have been
presented to the state court for consideration on the merits.
See Keeney v. Tamavo-Reves, 504 U.S. 1, 10 (1992).
A. Counts II and III of Couch's Petition
Counts II and III of Couch's petition allege that the Board
will not grant him parole until he completes the state prison's
SOP. This reguirement. Couch claims, violates both double
jeopardy and due process constitutional protections. Couch
contends that the SOP was neither a reguirement of his probation
revocation sentence nor his original plea agreement. Thus, he
claims, the SOP reguirement constitutes multiple sentences for
the same crime (Count II) and a breach of his plea agreement
(Count III) .
The fatal flaw in Couch's argument is that he has yet to be
denied parole. Couch was first eligible for parole on August 8,
1996. He was scheduled to go before the Board on June 20, 1996.
The June hearing was canceled at Couch's reguest. Thus, even
assuming the SOP reguirement does violate Couch's rights, he has
not been denied parole based on his failure to complete the
program. In fact. Couch has not been denied parole at all for
any reason.
- 6 - Couch argues that the Board's practice of denying parole to
sex offenders who fail to complete the SOP is well-established.
Further, he notes that the State, in its pleadings, has indicated
that the Board may not grant Couch parole until he completes the
program. Thus, he argues, he should not have to "go through the
parole process only to be denied" before he can challenge the
Board's policy in this Court. I disagree.
Because Couch has not yet applied for and been denied
parole. Counts II and III of his petition are not even ripe for
judicial review, let alone exhausted. Whether a claim is ripe
will depend on (1) "the fitness of the issues for judicial
decision," and (2) "the hardship to the parties of withholding
court consideration." See Gildav v. Dubois, 124 F.3d 277, 295
(1st Cir. 1997)(guoting Pacific Gas & Elec. Co. v. State Energy
Resources Conservation and Dev. Comm'n, 461 U.S. 190, 201
(1983)). As the First Circuit Court of Appeals recently
explained, a crucial consideration in the ripeness determination
is whether a claim involves "uncertain and contingent events that
may not occur as anticipated, or indeed may not occur at all."
Id. (internal citations omitted). Here, it is likely but not
certain that the Board will deny Couch parole. The Board could
actually choose to grant Couch parole, should he elect to participate in a hearing. Moreover, dismissing Counts II and III
on ripeness grounds will not subject Couch to any sort of
hardship. Couch will merely have to go before the Board prior to
pursuing his claims.
Couch argues that, in the context of an alleged threatened
double jeopardy violation, I am not reguired to follow
traditional rules of ripeness. See Allen v. Attorney General of
the State of Maine, 80 F.3d 569, 572 (1st Cir. 1996) ("a petition
for habeas relief that raises a colorable claim of former
jeopardy need not invariably await trial and conviction in the
state court"). Couch's reliance on Allen is unpersuasive. In
Allen, the state suspended the petitioner's driver's license for
operating under the influence. See 80 F.3d at 571. He was
released on bail and faced prosecution for GUI. See id. The
petitioner sought a writ of habeas corpus, alleging that the
pending prosecution constituted multiple punishment for the same
crime in violation of the Double Jeopardy Clause. See id. at
572. The First Circuit stated that the petitioner's claim fell
within an exception to the ripeness rules because he alleged a
double jeopardy violation. See id. ("federal habeas courts will
in appropriate circumstances entertain a claim that permitting a
nascent . . . state court prosecution to go forward would violate the Double Jeopardy Clause")(emphasis added). It is not enough,
however, to allege any threatened double jeopardy violation. See
id. Here, Couch alleges that the Board will deny him parole if
he chooses to participate in a parole hearing before completing
the SOP. Unlike the petitioner in Allen, Couch is not facing the
possibility of prosecution and prison if I must dismiss his claim
on ripeness grounds. To the contrary, he faces the possibility -
- however slim -- that the Board will grant his early release
from prison. Couch's alleged threat of a double jeopardy
violation simply doesn't rise to the level contemplated by the
Allen Court. Thus, I find that Counts II and III of Couch's
petition are not ripe for review and do not fit into an exception
to the ripeness doctrine. Couch must first apply for and be
denied parole based on his failure to complete the SOP. Then, he
must bring these claims before a state court to properly exhaust
his state remedies.5
5 Couch argues that he should be excused from his failure to exhaust his state court remedies because such an act would be futile. See Allen, 80 F.3d at 573. In support of his argument, he cites several New Hampshire Supreme Court decisions upholding the Board's practice of denying parole to sex offenders who fail to complete the SOP. See Wellington v. Commissioner, 140 N.H. 3 99 (1995); Cable v. Warden, 140 N.H. 395 (1995); Knowles v. Warden, 140 N.H. 387 (1995). I need not decide whether Counts II and III of Couch's petition fit within the so-called "futility exception" to the exhaustion rule because, as noted above, until Couch applies for and is denied parole, these counts are not yet
- 9 - B. Count IV Couch's Petition
Count IV of Couch's petition alleges three procedural due
process violations. First, he claims that he was not informed
that failure to gain entrance to the Monadnock sex offender
program, for any reason, would result in revocation of his
probation. Second, he argues that the program should have
provided him with notice and an opportunity to be heard regarding
his denied admission. Finally, he claims that the superior court
abused its discretion by revoking his probation based on his
failure to gain entry to the Monadnock program. The State argues
that Couch has not exhausted his state remedies as to Count IV
because he never raised these claims in a state court proceeding.
Couch's state petition for a writ of habeas corpus alleges a
breach of his plea bargain and a double jeopardy violation based
on his probation revocation. His motion to reconsider does raise
a due process claim, but it is based on the superior court's
failure to provide him with transcripts of his plea agreement.
His subseguent petition for a writ of certiorari to the state
supreme court raises the alleged breach of plea bargain and
double jeopardy violations, as well as the due process claim
based on his denied reguest for transcripts. While his state
ripe for judicial review.
- 10 - petition for a writ of certiorari does invoke the Due Process
Clause of the Fourteenth Amendment, nowhere does he allege the
three claims present in Count IV of his amended federal petition.
A petitioner cannot meet the exhaustion requirement by showing
that he presented the same legal claim to a state court if the
federal claim arises from a different factual context. See
Carillo v. Brown, 807 F.2d 1094, 1099 (1st Cir. 1986) (habeas
claim not exhausted when it is based on new factual allegations
in federal court that cast the claim in a "significantly
different light")(quoting Domainque v. Butterworth, 641 F.2d 8
(1st Cir. 1981)). Here, Couch's federal claim is based on
significantly different facts and allegations than those
presented to the state court. Thus, he has failed to exhaust his
state court remedies as to Count IV.
Couch argues that, even if Count IV is not properly
exhausted, I should elect to hear his claim as bringing it before
the state court would be a futile act. See Allen, 80 F.3d at
573. While I may choose to hear an unexhausted claim where the
state's highest court has ruled unfavorably based on "materially
identical" facts and legal issues to those present in the federal
petition, I decline to do so here. C f . id. (where there is "no
plausible reason to believe" state court will rule in
- 11 - petitioner's favor, federal court may relieve petitioner of
exhaustion requirement). Couch points to two New Hampshire
Supreme Court decisions to buttress his claim of futility. See
State v. Kochvi, 140 N.H. 662, cert, denied, 117 S. C t . 103
(1996); State v. Woveris, 138 N.H. 33 (1993). While the facts
and issues in Kochvi and Woveris are similar to those presented
in Couch's petition, they are not materially identical and do not
warrant an exception to the exhaustion requirement. For example.
Couch takes issue with the Monadnock proqram's refusal to admit
him without providinq notice and an opportunity to be heard.
Specifically, Couch arques that the proqram is an aqency of the
State with deleqated authority to determine Couch's liberty. As
such, he arques, the proqram owes him procedural due process
protections under the federal Constitution. There were no such
claims presented to the state supreme court in either Kochvi or
Woveris. Thus, it is plausible to believe that Couch's arqument
would persuade the New Hampshire Supreme Court to find that the
State, via the Monadnock proqram, violated Couch's due process
riqhts. Therefore, I decline to relieve Couch of the exhaustion
requirement as to Count IV of his petition.
- 12 - C. Count V of Couch's Petition
Count V of Couch's petition alleges that his probation
revocation constitutes a violation of his substantive due process
rights under the Fourteenth Amendment. Specifically, he claims
that the superior court abused its discretion in revoking his
probation because (1) he made good faith efforts to gain
admission to the Monadnock sex offender program and was denied
through no fault of his own; and, (2) the State should have
allowed him to seek entry into another sex offender program. The
State contends that Couch has not exhausted Count V in the state
courts. While Couch did make a similar argument in his appeal of
his probation revocation to the supreme court, that appeal was
based solely on state law. Thus, the State argues. Couch did not
fairly present his federal claims to the state court and,
therefore. Count V is unexhausted.
As I have noted above, a habeas petitioner must first
present both the factual and legal bases for his federal claims
to the state courts in order to meet the exhaustion reguirement.
See Scarpa v. Dubois, 38 F.3d 1, 6 (1st Cir. 1994)(citing Picard,
404 U.S. at 276-78); Nadwornv v. Fair, 872 F.2d 1093, 1096 (1st
Cir. 1989). The First Circuit has stated that, in order for a
habeas petitioner to fairly present and thus exhaust his federal
- 13 - claims, he must present his claim in such a way that a
"reasonable jurist" would have been alerted to the federal
question. See Scarpa, 38 F.3d at 6. Whether a reasonable jurist
would be so alerted will depend upon a number of factors,
including whether the petitioner (1) cited a specific provision
of the Constitution; (2) presented the claim in a manner likely
to alert a court to its federal nature; (3) relied on
constitutional precedent; (4) claimed a particular constitutional
right; and (5) presented a state law claim that is functionally
equivalent to a federal claim. See id. (citing Gagne v. Fair,
835 F.2d 6, 7 (1st Cir. 1987); Nadwornv, 872 F.2d at 1099-100).
Here, Couch's appeal to the supreme court cited no provision of
the federal Constitution, nor did he rely on constitutional
precedent or claim a particular constitutional right. He relied
solely on state court precedent and cases dealing with state
constitutional issues. Couch's subsequent petitions for a writ of
habeas corpus and for certiorari did not raise the substantive
due process arguments he presented in his appeal, nor those he
presents in his amended federal petition. Thus, Couch did not
alert the state courts to the federal constitutional issues he
raises before me. C f . Scarpa, 38 F.3d at 6-8. Therefore, I
agree with the State that Couch did not properly exhaust his
- 14 - state court remedies with respect to Count V of his petition.
Again, Couch argues that, even if Count V is not properly
exhausted, it fits within the futility exception to the
exhaustion reguirement. I decline to reach the merits of Couch's
claim, however, as I must dismiss the entire petition as a mixed
petition containing both exhausted and unexhausted claims. See
Rose, 455 U.S. at 522.
III. CONCLUSION
For the reasons stated above, the State's motion for summary
judgment (document no. 44) is granted and Couch's motion for
summary judgment (document no. 46) is denied. His amended
petition (document no. 41) is dismissed without prejudice to
permit Couch to exhaust his state court remedies. Couch may wish
to abandon his unexhausted claims so that I can rule immediately
on any counts as to which he has exhausted his state remedies.6
However, he should note that he may lose future opportunities to
6 As noted above, the State argues that Couch is procedurally barred from bringing Count I. Assuming without deciding that the State is correct, I can only reach the merits of Count I if Couch, after amending his petition or exhausting his state remedies as to the remaining claims and refiling the present petition, is able to demonstrate "cause and prejudice" for the state default. See Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991) .
- 15 - raise his unexhausted claims if he chooses this route. See 28
U.S.C. 2244 (b)(2) (West Supp. 1998); see also McCleskv v. Zant,
499 U.S. 467, 483-89 (1991) (discussing successive petitions).
The clerk is instructed to enter judgment in accordance with this
order.
SO ORDERED.
Paul Barbadoro Chief Judge
December 7, 1998
cc: Scott F. Johnson, Esg. Malinda R. Lawrence, Esg.
- 16 -