Breest v. Brodeur CV-95-100-SD 08/04/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert Breest, Petitioner

v. Civil No. 95-100-SD

Paul Brodeur, Respondent

O R D E R

Robert Breest, who stands convicted of brutally murdering a

Manchester woman named Susan Randall in 1971, has filed a

petition for a writ of habeas corpus pursuant to

. In it, he raises two claims for relief. The first has

already been considered and rejected as procedurally defaulted by

the First Circuit; the second is a variation of an argument also

previously considered and rejected. Petitioner contends that an

intervening 1993 Supreme Court decision renders his first claim

non-successive, see

(b) (1966) (permitting

merits-based consideration of a previously-asserted claim if the

claim is anchored upon new grounds)1 and that newly-discovered

evidence makes the second claim non-abusive, see Schlup v. Delo,

, 318 n.34 (1995) (noting that abusive claims include

xIn accordance with Lindh v. Murphy, 117 S. C t . 2059 (1997), the court does not retroactively apply the 1996 amendments to § 2244 to this 1995 petition.

1 those that were available but not asserted in a prior petition).

Presently before the court are a number of motions,

including respondent's motion to dismiss. Finding that the new

grounds advanced in support of petitioner's first claim do not

call into guestion the First Circuit's determination that the

claim is procedurally defaulted, that petitioner's second claim

is abusive, that the cause-and-prejudice exception to the general

rule against abusive petitions does not apply, see i d . at 318-19,

and that denial of the writ would work no fundamental miscarriage

of justice, see generally i d . at 319-23, the court grants

respondent's motion.

Petitioner's previous applications for collateral relief are

addressed in a number of published opinions. See Breest v.

Perrin,

(D.N.H. 1979), aff'd ,

(1st

Cir.), cert. denied,

(1980); Breest v. Perrin,

(D.N.H. 1980), aff'd ,

(1st Cir.), cert.

denied,

(1981); Breest v. Helqemoe,

(1st Cir.), cert. denied,

(1978); Breest

v. Cunningham,

(1st Cir. 1985); Breest v. Cunningham,

(1st Cir.), cert. denied,

(1986).

Several of these opinions recite in considerable detail the

salient facts of the murder and petitioner's trial. The court

therefore proceeds directly to the merits of petitioner's claims.

2 As noted, the two events of which petitioner complains --

(1) the trial judge's flawed description of reasonable doubt and

concomitant understatement of the State's burden of proof when

instructing petitioner's jury; and (2) the State's failure to

advise petitioner that an important State witness, a person now

known to have been named David Chapman at the time of trial,

would be testifying under a former, and therefore false, identity

(David Carita) -- are not new to the federal courts. In fact,

and importantly, the First Circuit has already held that neither

event is sufficient to warrant a new trial.

With respect to petitioner's first claim, it did so

explicitly when it ruled that petitioner had not demonstrated

either cause for or actual prejudice arising out of his failure

to object and take an exception to the challenged instruction at

his trial. See Breest v. Cunningham,

(concluding that the narrow exception to the procedural default

rule set forth in Wainwriqht v. Svkes,

(1977), did

not apply) .2 And with respect to petitioner's second claim, it

did so implicitly when it concluded that there was no reasonable

likelihood that the State's non-disclosure of a bargain it made

with Carita/Chapman (a bargain that included a promise of a name

21he New Hampshire Supreme Court had previously found this claim to have been procedurally defaulted. See Martineau v. Perrin,

(1979).

3 change in exchange for testimony against petitioner) could have

affected the jury's judgment. See Breest v. Perrin,

.

Petitioner does not dispute this. Instead, he contends that

recent events have effectively invalidated these First Circuit

decisions. Subsumed within this general assertion are two

arguments. First, petitioner necessarily (though not explicitly)

takes the position that the Supreme Court's 1993 holding that a

defective reasonable doubt instruction which effectively

understates the prosecution's burden of proof is a never-harmless

structural error, see Sullivan v. Louisiana,

(1993), and the First Circuit's subseguent case-specific

determination that a defective reasonable doubt instruction given

in a federal criminal trial was plainly erroneous under Fed. R.

Crim. P. 52(b), see United States v. Colon-Pagan,

, 81-

82 (1st Cir. 1993)3, combine to undermine the Circuit's prior

cause-and-prejudice determinations with respect to the reasonable

doubt instruction in his case.4 Second, petitioner argues that

30f course. Rule 52 (b)'s plain-error inguiry does not apply here. The Supreme Court has rejected the suggestion that plain- error review supplant the cause-and-prejudice standard which governs procedurally-defaulted claims asserted under § 2254. See Engle v. Isaac,

(1982).

Alternatively, petitioner may be arguing that Sullivan and Colon-Pagan combine to permit him to characterize his conviction as a fundamental miscarriage of justice. See Schlup,

4 his recent receipt of Massachusetts Probate Court records

confirming that, in 1971, David Carita officially changed his

name to Joseph Chapman now permits him to assert that he was

denied his Sixth Amendment right to confront and impeach

Carita/Chapman at trial. Neither argument is persuasive.

The court assumes arguendo that the holding of Sullivan is

to be retroactively applied on collateral review. See Adams v.

Aiken,

(4th Cir. 1994) (a deficient

reasonable doubt instruction gualifies for retroactive

application under Teague v. Lane,

(1989), because a

finding of guilt beyond reasonable doubt is "implicit in the

concept of ordered liberty"), cert. denied,

(1995);

Nutter v. White,

(11th Cir. 1994) (same).

As a result, petitioner may well be correct when he says that

Sullivan undermines the Circuit's prior prejudice determination.

See Breest v. Cunningham,

(finding no

319-21 (explaining the miscarriage-of-justice exception to the general bar against successive or abusive claims). To the extent that this is so, the argument fails. The miscarriage-of-justice exception applies only to supported claims of actual innocence. See i d . at 321. Here, petitioner has adduced no new evidence which can be thought to call into guestion the Circuit's prior determination that, even without the Carita/Chapman testimony (which the court discounts in recognition of the second argument petitioner advances), "the net effect of the evidence . . . would . . . point strongly toward guilt, though not compellingly." Breest v. Perrin,

. There is, therefore, no viable miscarriage-of-justice argument available to petitioner in this case.

5 prejudice because of a now-prohibited inquiry into the existence

vel non of record evidence of guilt); c f . also Scarpa v. Dubois,

, 14 (1st Cir. 1994) (implying that a deficient

reasonable doubt instruction is prejudicial within the meaning of

Strickland v. Washington,

(1984)), cert. denied,

(1995). He has not, however, explained how Sullivan

can be taken to call into question the Circuit's conclusion that

"Breest has failed to meet the 'cause' requirement of Wainwriqht

v. Svkes." I d . at 437. The court is thus left to infer that

petitioner's position on this point is as follows: no cause for

a procedural default need be shown when the defaulted claim

involves structural error. The caselaw does not support this

position.

The Supreme Court has made it clear that the seriousness of

a constitutional error does not relieve a petitioner of

demonstrating both cause for and actual prejudice arising out of

a procedural default:

While the nature of a constitutional claim may affect the calculation of cause and actual prejudice, it does not alter the need to make that threshold showing . . . [A]ny prisoner bringing a constitutional claim to the federal courthouse after a state procedural default must demonstrate cause and actual prejudice before obtaining relief.

Engle,

; c f . also Hankerson v. North Carolina,

, 244 n.8 (1977) (indicating that state convictions

6 obtained in the face of unobjected-to jury instructions

unconstitutionally shifting the burden of proof to defendants

should not be upset on collateral review). Thus, petitioner

"cannot excuse his procedural mistakes simply because his

substantive claims turn on structural -- rather than trial --

errors." United States v. Anderson, ___ F. Supp. ___ ,

at *6 (N.D. 111. June 30, 1997) (federal habeas case)

(collecting cases).

Although petitioner does not explicitly so contend, his

general argument might be taken to encompass an assertion that

petitioner's trial counsel's failure to object and take an

exception constituted constitutionally ineffective assistance of

counsel sufficient to establish cause under Wainwright. See

Murray v. Carrier,

(1986) . To prevail on this

argument, petitioner must, of course, establish that counsel's

failure was objectively unreasonable. See Strickland,

. Such a showing reguires considerably more than that

which already has been established: a lack of cause for

counsel's failure to object. See Engle,

(making clear that a lack of cause for failure to object is not

tantamount to constitutionally ineffective assistance of

counsel). It instead necessitates a demonstration that the

failure to object and take an exception fell outside "the wide

7 range of reasonable professional assistance." Strickland,

.

In previously arguing that there was legal cause for his

failure to object and take an exception, petitioner pointed to

the fact that the reasonable doubt instruction given at his trial

had been used for decades in New Hampshire. See Breest v.

Cunningham,

. He also observed that, in the years

following his conviction. New Hampshire courts upheld the

constitutionality of substantially similar instructions. See i d .

Although the First Circuit did not regard these facts as

sufficient to establish cause, see i d . at 436 (noting that, two

years prior to petitioner's trial, the Circuit had, in dictum,

condemned an instruction containing "virtually identical" wording

to that challenged here) (citation omitted), it in no way took

issue with their accuracy. Thus, notwithstanding the Circuit's

prior cause determination, petitioner has not established that

his trial counsel's failure to object to a then-run of the mill

instruction was outside the bounds of professional competence.

Unfair as it may seem to petitioner, there is a considerable

expanse between cause for failing to object on account of the

state of the law at the time of trial and constitutional

ineffectiveness in failing to object. See Engle,

. This case is within that expanse. Petitioner's first

8 claim therefore continues to be procedurally defaulted for

plaintiff's failure to demonstrate cause for his failure to

object and take an exception to the challenged instruction. See

Breest v. Cunningham,

.

Petitioner's second claim fails for an even more fundamental

reason: petitioner has, at least since 1979, had reason to know

that David Carita had been given a different identity prior to

his trial. See December 18, 1979 Affidavit of William G. Bergin

at 1, 2; see also January 17, 1980 Affidavit of W. Michael Dunn

at 1-2; February 15, 1980 Affidavit of Thomas B. Wingate at 2;

and February 12, 1980 Affidavit of Ronald D. Daniels, Jr., at 2.5

Thus, his recent receipt of the Probate Court records confirming

what he already had been told cannot constitute cause sufficient

to relieve him of his obligation to have raised the instant Sixth

Amendment claim in one of the several, post-1979 § 2254 petitions

he filed in this court. The instant claim must therefore be

denied as an abuse of the writ. See McCleskv v. Zant,

(1991); see also supra note 4.

For the reasons stated, the court grants respondent's motion

to dismiss [document no. 25]. This order reguires a

corresponding denial of petitioner's renewed application for bail

5These four affidavits are attached as exhibits to petitioner's motion to initiate disciplinary proceedings against assistant attorney general John A. Curran.

9 [document no. 31] and motion for summary judgment [document no.

37]. It also moots his motion for a decision on the merits

[document no. 35] and motion for order to obtain transcripts

[document no. 28]. Finally, the court denies petitioner's motion

to initiate disciplinary proceedings [document no. 27] as there

is no basis for concluding that assistant attorney general Curran

knew of the Massachusetts Probate Court records (as opposed to

the name change itself) prior to 1993.

The Clerk is directed to close the case.

SO ORDERED.

Shane Devine Senior U.S. District Judge

Date: August 4, 1997

cc: Robert Breest, pro se Attorney General of the State of New Hampshire

10