O'Brien v. NH Dept, of Corrections CV-97-107-B 08/11/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert V. O'Brien

v. C-97-107-B

Nicholas Pishon1. Acting Commissioner. New Hampshire Department of Corrections

MEMORANDUM AND ORDER

Robert V. O'Brien was convicted of perjury pursuant to

(1996). After unsuccessfully challenging

his conviction on direct appeal, O'Brien filed this petition for

a writ of habeas corpus pursuant to

(West 1994

& Supp. 1998). O'Brien contends that his conviction violated his

due process rights because: (1) the state failed to produce

sufficient evidence to support his conviction; and (2) a New

Hampshire Supreme Court justice, John T. Broderick, Jr., who

O'Brien alleges was biased against him, improperly delayed his

decision to recuse himself until after oral argument on O'Brien's

1 The petition originally was directed against Paul Brodeur, Commissioner of Corrections. Since it was filed, however. Commissioner Brodeur has been replaced by Acting Commissioner Nicholas Pishon, who is now the proper defendant. appeal.2

For the reasons that follow, I determine that O'Brien's

contentions are without merit and, accordingly, dismiss his

petition.

I. BACKGROUND

O'Brien met with a staff member of the Governor's Citizens

Services Office located in Concord, New Hampshire, on March 20,

1995. During this meeting, O'Brien stated that he possessed a

stockpile of weapons, including an AK-47 assault rifle. He also

twice threatened to shoot Governor Stephen E. Merrill if he did

not help him resolve a number of different grievances.

The staff member notified the New Hampshire State Police

after the meeting that O'Brien had made threats against the

governor. Later that day, two state police officers were sent to

interview O'Brien at his children's home in Methuen,

2 O'Brien also claims that another New Hampshire Supreme Court justice, William R. Johnson, wrongly failed to recuse himself from the Judicial Conduct Committee when O'Brien brought a complaint before that body concerning Justice Broderick's participation in his appeal. I dismiss this claim for lack of subject matter jurisdiction because decisions of the Judicial Conduct Committee are not "judgment[s] of a State court" pursuant to which petitioner is in custody for the purposes of satisfying

(a) .

2 Massachusetts. O'Brien met with the officers and allegedly made

several incriminating statements. He was later arrested and

charged with exercising improper influence on a government

official, in violation of N.H. Rev. Sat. Ann. § 640:3.

O'Brien moved to suppress the fruits of his March 20, 1995

interview arguing that his statements were involuntary and that

the officers improperly failed to give him his Miranda warnings.

In an effort to support his motion, O'Brien testified that when

the police came to interview him, he "told them they couldn't

come in twice because I was drunk. They swore any statement that

I gave them wouldn't be used against me and that is exactly what

one of them said. I cannot tell you which one." Tr. of July 5,

1995 hearing at 90-91. Before ruling on the motion to suppress,

the court dismissed the improper influence charge for other

reasons.

O'Brien was arrested and charged with perjury based on his

suppression hearing testimony on the same day that the improper

influence charge was dismissed.3 At trial, the two state police

officers who were present during the March 20, 1995 interview as

well as a local police officer who was also present, testified

3 O'Brien was also charged with witness tampering. He was found, however, not guilty of this charge, and it plays no part in the current dispute.

3 that the police never promised O'Brien that his statements would

not be used against him. Although O'Brien testified to the

contrary, the jury found him guilty.

O'Brien appealed his conviction, and Justice Broderick, who

had recently been appointed to the New Hampshire Supreme Court by

Governor Merrill, attended the oral argument on O'Brien's appeal.

The court's decision affirming O'Brien's conviction notes,

however, that Justice Broderick did not participate in making the

decision.

II. STANDARD OF REVIEW

_____ The standards of review that apply to habeas corpus claims

arising from state court judgments are described in

(d) and (e). When a habeas corpus claim has been adjudicated

on the merits in state court, the state court's legal

determinations must stand unless they are "contrary to, or

involve[] an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States."

(d)(1). The First Circuit recently

held that in making such an assessment, a "federal habeas court

. . . must undertake an independent two-step analysis." 0'Brien

v. Dubois, No. 97-1979,

(1st Cir. May 26,

4 1998) (citing James S. Liebman & Randy Hertz, Federal Habeas

Corpus Practice and Procedure § 30.2c (Supp. 1997)).

The habeas court must first determine whether the Supreme

Court has "prescribed a rule that governs the petitioner's

claim." O'Brien,

. If so, the habeas court

exercises independent review of the state court decision to

"gauge[] whether the state court decision is 'contrary to' the

[relevant Supreme Court] rule."

In the absence of a

governing Supreme Court rule, the habeas court takes the second

step, assessing whether the state court's "use of (or failure to

use) existing [Supreme Court] law in deciding the petitioner's

claim involved an 'unreasonable application' of Supreme Court

precedent."

"[A] state court's decision can and must stand

unless the state court acted unreasonably in fashioning its own

rule for the claim out of the Supreme Court's peripherally

pertinent precedents." Liebman & Hertz, supra, § 30.2c, at 310.

The petitioner bears the burden of proving that the state court

decision is contrary to the governing Supreme Court rule or that

it reflects an unreasonable application of relevant Supreme Court

precedent. See O'Brien,

.

The state court's factual findings must be adopted unless

they are "unreasonable" "in light of the evidence presented in

5 the State court proceeding[s]."

(d)(2).

Factual findings are entitled to a presumption of correctness

which cannot be overcome unless the petitioner can point to

"clear and convincing evidence" to support his claim that the

facts were incorrectly decided.

§ 2254(e) (1).

I apply these standards in reviewing O'Brien's habeas corpus

claim.4

III. DISCUSSION

O'Brien makes two claims in his petition. First, he

contends that the State did not produce sufficient evidence at

his trial to support his conviction. Specifically, O'Brien

argues that the State failed to establish that his allegedly

perjurious statement was material to the case pending against him

at the time he made the statement. Second, O'Brien argues that

he was denied an impartial judicial review of his perjury

conviction because Justice Broderick improperly delayed his

decision to recuse himself until after oral argument on O'Brien's

4 The fact that there are no pending dispositive motions before me does not affect my ability to rule on this habeas corpus petition. The parties rest on their current pleadings and responses previously submitted. Moreover, the content of the transcripts on which my ruling is based is not in dispute. Thus, respondent is entitled to judgment as a matter of law.

6 appeal.

1. Insufficiency of Evidence Claim

Both parties agree that the Supreme Court set forth the

standard governing insufficiency of evidence claims in Jackson v.

Virginia,

(1979). See O'Brien,

, at *8 n.6. Under Jackson, a reviewing court examining an

insufficiency of evidence claim must construe "the evidence in

the light most favorable to the prosecution" and determine

whether "any rational trier of fact could have found the

essential elements of the crime [proved] beyond a reasonable

doubt." Jackson,

. In doing so, the court does

not "ask itself whether it believes that the evidence at . . .

trial established guilt beyond a reasonable doubt" but only

whether the record could reasonably support the jury's finding.

. The court must apply this standard with specific

reference to each contested element of the offense -- here,

whether petitioner's testimony was material to the case then

pending against him. Campbell v. Fair,

(1st Cir.

1988). Accordingly, I must conduct an independent review of the

New Hampshire Supreme Court's determination that the prosecution

produced evidence sufficient to permit a rational juror to find

beyond a reasonable doubt that O'Brien's statements were material

7 to the underlying case against him.5 See 0'Brien,

.

New Hampshire law provides that a person is guilty of

perjury if, in any official proceeding, he "makes a false

material statement under oath or affirmation, or swears or

affirms the truth of a material statement previously made, and he

does not believe the statement to be true."

(1)(a). A statement is "material" to an underlying case

under New Hampshire law if it is "capable of affecting the course

or outcome of the proceeding."

§ 641:1(11). Thus for

O'Brien to prevail on his insufficiency of evidence claim, he

must show that no rational trier of fact could find beyond a

reasonable doubt from the evidence presented at trial that the

relevant portion of his suppression hearing testimony was capable

of influencing the course or affecting the outcome of the case

then at hand. See Jackson,

; State v. Sands,

(1983).

Notwithstanding O'Brien's assertions to the contrary, the

record contains ample evidence from which a rational juror could

5 The fact that the underlying case against O'Brien was later dismissed has no bearing on my analysis of whether his testimony was material to the outcome of that case. See State v. Sands,

(1983). conclude beyond a reasonable doubt that O'Brien's suppression

hearing statement could have influenced the course or affected

the outcome of the case then pending against him. For instance,

O'Brien's statement was certainly capable of affecting the

outcome of the July 5, 1995 suppression hearing and, thereby,

could very easily have influenced the course of the case. Had

the court believed O'Brien, it could have held the State to the

promise allegedly made by the officers, cf. State v. McDermott,

(1989) (testimony obtained by state agent from

defendant pursuant to immunity agreement cannot be used against

defendant without violation of defendant's constitutional

rights), and, thus, suppressed the evidence gathered during the

March 20, 1995 interview. Without this evidence, the State's

ability to prove that O'Brien threatened Governor Merrill would

have been hampered.

O'Brien's testimony also was of central importance in

evaluating his credibility and the credibility of the officers

who testified against him at the suppression hearing. Had the

judge believed O'Brien when he claimed that the police promised

his statements would not be used against him, it is also likely

that the judge would have believed O'Brien on other disputed

matters concerning the March 20, 1995 interview. Testimony that bears on a credibility question central to the resolution of a

case plainly is material to the outcome of the case. See United

States v. Scivola,

(1st Cir. 1985) (federal

perjury statute); Smallwood v. State,

(Miss. 1991) (Mississippi perjury statute); Mitchell v. State,

(Tex. Crim. Ap p . 1980) (Texas perjury

statute).

Thus, the evidence produced at O'Brien's trial was

sufficiently compelling to permit a rational trier of fact to

find beyond a reasonable doubt that the relevant portion of

O'Brien's suppression hearing testimony was capable of affecting

the outcome of the case then pending against him. Consequently,

I hold that the New Hampshire Supreme Court's ruling affirming

the jury's finding was not contrary to clearly established

federal law and that O'Brien's insufficiency of evidence claim

mu st fail.

2. Lack of Impartial Review Claim

O'Brien claims that even though Justice Broderick did not

participate in the New Hampshire Supreme Court's decision

affirming O'Brien's conviction, the justice's presence and

participation during the oral argument portion of O'Brien's

appeal deprived him of an impartial judicial review of his

10 conviction.6 O'Brien alleges that Justice Broderick is biased

against him because the justice is a friend and former law

partner of Governor Merrill and because Governor Merrill

appointed him to the bench. O'Brien asserts that by delaying his

recusal until after oral argument. Justice Broderick tainted the

New Hampshire Supreme Court's ability to impartially review

O'Brien's perjury conviction and, thus, deprived him of due

process.

The short answer to O'Brien's argument is that his claim

fails because he has not proved that Justice Broderick's

participation at oral argument in any way impacted the court's

decision affirming O'Brien's conviction. As the Second Circuit

Court of Appeals recently acknowledged:

A recused judge's participation in guestioning during oral argument does not constitute the sort of participation in the deliberative process that might impair the validity of a judgment. Questioning counsel during oral argument is an opportunity to illuminate issues, not resolve them.

Whitehall Tenants Corp. v. Whitehall Realty Co.,

,

6 Although O'Brien did not present this claim to the New Hampshire Supreme Court for review, I reach the merits of his claim rather than remanding it for exhaustion of state remedies because, in view of the disposition of O'Brien's Judicial Conduct Committee complaint against Justice Broderick, it could be argued that a remand for exhaustion would be futile. See Gagne v. Fair,

(1st Cir. 1987) (recognizing futility exception to exhaustion reguirement). 11 232-33 (2d Cir.),. cert, denied, 118 S. C t . 2320 (1998).

Accordingly, even if Justice Broderick could not have

participated constitutionally in the resolution of O'Brien's

appeal, his mere participation at oral argument could not have

impeded O'Brien's right to due process.

IV. CONCLUSION

For the foregoing reasons, I find petitioner's contentions

are without merit. Accordingly, O'Brien's petition for a writ of

habeas corpus is dismissed.

SO ORDERED.

Paul Barbadoro Chief Judge

August 11, 1998

cc: Robert V. O'Brien Janice Bundles, Esg.

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