2009-076, AMY BARNET v. WARDEN, NEW HAMPSHIRE STATE PRISON FOR WOMEN & a.

No. 2009-076 Hillsborough-northern judicial district

August 20, she contacted Kittery police and her probation/parole officer, in Kittery, Maine, but was not apprehended because she fled the store. On

January 2007. On August 17, 2008, she stole items from Kittery Trading Post

Superior Court (Barry DALIANIS, J. The petitioner, Amy Barnet, appeals a decision of the

THE SUPREME COURT OF NEW HAMPSHIRE sentenced to the New Hampshire State Prison for Women. She was paroled in The record supports the following facts. In 2006, the petitioner was

, of Concord, by brief and orally, for the petitioner. the New Hampshire Adult Parole Board. We affirm.

Michael A. Delaney

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 against the respondents, Warden, New Hampshire State Prison for Women and

attorney general, on the brief and orally), for the respondents.

Richard C. Mooney to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as parole board continued the hearing on its own motion until December 16

p. 2 by failing to provide her with a revocation hearing within forty-five days. The

five-day time limit required by statute. See

board had lost its jurisdiction by failing to rule on her petition and motion and required to participate by way of video conference. She argued that the parole the hearing, but was brought to the video conference room at the prison and

The revocation hearing was scheduled for September 23, within the forty-

pending the outcome of her parole revocation hearing.

board; thus, he was not present. The petitioner refused to be transported for

arrest and detention were proper and that she should continue to be detained

petitioner’s counsel was not notified by either the petitioner or the parole The parole revocation hearing was rescheduled for November 18. The

declined to make a statement. A preliminary hearing officer found that her associated reports. She presented no witnesses, made no objections, and violations. At the preliminary hearing, the petitioner reviewed the warrant and

The petitioner did not object.

2, and 6 of her parole conditions and provided a brief description of the

the supplemental pleading, the petitioner waived the forty-five-day time limit. respond to the petitioner’s pleadings. The parole board stated that, by filing revocation hearing on its own motion so that the respondents could review and

petitioner’s arrest. The warrant stated that she had violated rules 10, 11, 7, 3,

her motion before any further proceedings. The parole board continued the for the following day, August 21, at 4 p.m. See Cloutier provided the petitioner with notice of a preliminary hearing scheduled House of Corrections where she signed a statement admitting to shoplifting. On August 21, Cloutier issued an affidavit and warrant for the

signed the notice acknowledging that she was notified of the violations.

Remove Parole Violation Warrant.” She requested that the parole board rule on

That evening, Cloutier met with the petitioner at the Hillsborough County

number but did not describe the alleged violations in detail. The petitioner

hearing, the petitioner filed a supplement to her petition, entitled “Motion to Counsel was appointed for the petitioner on September 22. At the revocation revocation hearing, the petitioner filed a pro se petition with the parole board.

was arrested and incarcerated. up. I shoplifted. . . . I will be in . . . today to turn myself in.” She did so and warning she had been given on August 5. The notice referenced rules by the conditions of her parole, including rules and conditions listed in a written hours from the time of arrest”). The notice informed her that she had violated

Cloutier, stating, “I have to . . . take responsibility for what I did. So I messed Elisabeth Cloutier, to take responsibility for the theft. She left a message for

(mandating that a detained parolee’s preliminary hearing be held “within 72

p. 3 Morrissey

Amendment to the United States Constitution and can be terminated only in

committed acts that would constitute a violation of parole conditions.”

The liberty of a person on parole is protected by the Fourteenth

the hearing, her ability to prepare a defense was adversely affected.

probable cause or reasonable ground to believe that the arrested parolee has The purpose of a preliminary hearing is “to determine whether there is

not provide enough detail and that because it was provided on the day before its purpose is to determine whether there is probable cause to believe he has

preliminary hearing meeting the due process requirements of law.”).

notice of the charges against her. Specifically, she contends that the notice did before the preliminary hearing on August 21 because she was not given proper Id “[T]he parolee should be given notice that the hearing will take place and that First, the petitioner argues that the respondents denied her due process being “simple, prompt, flexible, [and] informal.” Belton, 113 N.H. at 185.

, 408 U.S. at 485. We have interpreted the preliminary hearing as

See

they lack support in the record or are clearly erroneous. State v. Wiggin surrounding the arrest and detention . . . shall be expeditiously reviewed at a In reviewing the trial court’s ruling, we accept its factual findings unless preliminary hearing. See RSA 504-A:6 (1997) (“The facts and circumstances first claims that she received constitutionally inadequate notice before her . The second is the formal revocation hearing process. Id. The petitioner arrest and detention of the parolee, usually at the direction of the parole officer. p. 3 Morrissey v. Brewer, 408 U.S. 471, 485 (1972). The first stage involves the 183, 184 (1973). The process of parole revocation involves two stages.

motion, found her in violation of her parole conditions, and revoked her parole. however, is de counsel was present, and the parole board denied the petitioner’s petition and superior court denied. At the December 16 revocation hearing, the petitioner’s

revocation hearing within the requisite time period.

153 N.H. 361, 363 (2006) (quotation omitted). address her arguments only under the Federal Constitution. State v. Burke, specifically” invoke any provision of the State Constitution in her brief, we

novo. Id. Because the petitioner fails to “unambiguously and

N.H. 305, 307 (2004). Our review of the trial court’s legal conclusions,

because of the petitioner’s refusal to attend in person. Before her revocation

charges against her before her preliminary hearing; and (2) failing to hold her violated her due process rights by: (1) failing to give her proper notice of the petition for writ of habeas corpus, the petitioner argues that the respondents RSA 651-A:18 (2007). On appeal from the superior court’s denial of her conditional liberty interest, including an unreasonable delay between the

p. 4 Due process protects a parolee against unreasonable deprivations of her

delay. Parole Board.” She does not contend that she was in fact prejudiced by the

Due Process,” but asserts that it “did not address the statutory violation by the

defense.” In her brief, the petitioner concedes that this ruling was “correct for that the alleged delay has resulted in actual prejudice to the conduct of her board within 45 days.” The trial court found that the petitioner “failed to show

for violating conditions of her parole “shall be entitled to a hearing before the

arrest, as required by statute. RSA 651-A:17 provides that a parolee arrested rights by failing to hold a parole revocation hearing within forty-five days of her Next, the petitioner argues that the respondents violated her due process

not constitute a violation of her due process rights.

flaws, if any, in the notice provided to her before her preliminary hearing did incarceration and the allegedly improper notice. Accordingly, we hold that the has similarly failed to demonstrate any causal connection between her

argues that the prejudice she suffered was her continued incarceration, she

more timely or detailed notice of the charges against her. To the extent she to do so and does not now identify anything she would have presented with statement and present other evidence at the preliminary hearing, she declined

documents and the opportunity to present testimony from witnesses, make a

given more time or more detailed notice. Though she had access to all relevant would have presented to oppose a showing of probable cause if she had been information to prepare for the preliminary hearing, but does not state what she

The petitioner contends generally that she did not have sufficient time or

has failed to do so. her prejudice, and, thus, violated her right to due process. We hold that she notice provided was inadequate, the petitioner must demonstrate how it caused

any, was harmless). Accordingly, even if we assume, without deciding, that the

a due process violation.” Linton v. Walker

well in advance of the final hearing and failed to show prejudice, the error, if have been alleged.” Morrissey charges against him on the day of the preliminary hearing and written notice committed a parole violation. The notice should state what parole violations (8th Cir. 1976) (where petitioner was given actual, but not written, notice of the 1989) (quotation omitted); see United States v. Pattman, 535 F.2d 1062, 1063 the claimed defect.” Winningham v. Turner, 878 F.2d 1062, 1064 (8th Cir. basis for habeas relief a petitioner must demonstrate that he was prejudiced by 2001), cert. denied, 534 U.S. 1155 (2002). “[F]or defective notice to form a

of a constitutional issue, and a parolee must show prejudice before we will find “Technical errors in the parole revocation process do not rise to the level

Affirmed

address her statutory claim further.

corpus relief, the petitioner must show harmful constitutional error. Sleeper v.

BRODERICK, C.J.