Breest v. Perrin, s. 80-1635

• Decision Date: 01 July 1981
• Docket Number: 80-1639,Nos. 80-1635,s. 80-1635
• Citation: 655 F.2d 1
• Parties: Robert BREEST, Petitioner, Appellant, v. Everett I. PERRIN, Jr., Warden, New Hampshire State Prison, et al., Respondents, Appellees. Frederick J. MARTINEAU, Petitioner, Appellant, v. Richard T. McCARTHY, etc., Respondents, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 1

655 F.2d 1

Robert BREEST, Petitioner, Appellant, v. Everett I. PERRIN, Jr., Warden, New Hampshire State Prison,

et al., Respondents, Appellees.

Frederick J. MARTINEAU, Petitioner, Appellant, v. Richard T. McCARTHY, etc., Respondents, Appellees.

Nos. 80-1635, 80-1639.

United States Court of Appeals First Circuit.

Argued June 3, 1981.

Decided July 1, 1981.

Jeanne Baker, Cambridge, Mass., by appointment of the Court, with whom William J. Genego, and Baker & Fine, Cambridge, Mass., were on brief, for petitioner, appellant Robert Breest.

Dorian Bowman, Cambridge, Mass., by appointment of the Court, with whom Bowman & Bowman, Cambridge, Mass., was on brief, for petitioner, appellant Frederick Martineau.

Paul W. Hodes, Asst. Atty. Gen., Crim. Justice Div., with whom Gregory H. Smith, Atty. Gen., Concord, N. H., was on brief, for respondents, appellees.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, and MAZZONE, District Judge. ^*

COFFIN, Chief Judge.

The question is whether the district court correctly refused to hear the merits of these petitioners' habeas corpus claims because they had not shown "cause" within the meaning of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), for failing to comply with a New Hampshire court's proper application of its contemporaneous objection rule.

I

Petitioner Breest was convicted of first degree murder and sentenced to life imprisonment in New Hampshire in 1973. His conviction and sentence were affirmed on appeal. State v. Breest, 116 N.H. 734, 367 A.2d 1320 (1976). He unsuccessfully filed two separate habeas petitions, the dismissal of the most recent of which we affirmed in Breest v. Perrin, 624 F.2d 1112 (1st Cir.), cert. denied, --- U.S. ----, 101 S.Ct. 585, 66 L.Ed.2d 481 (1980). The facts of Breest's murder conviction are set forth in our opinion in that case.

Petitioner Martineau was convicted of first degree murder and sentenced to death in New Hampshire in 1959, together with a co-defendant Russell Nelson. These convictions were affirmed in State v. Nelson, 103 N.H. 478, 175 A.2d 814 (1961), cert. denied, 369 U.S. 879, 82 S.Ct. 1153, 8 L.Ed.2d 283 (1962). After Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), was decided, the defendants moved for a new trial. The denial of this motion was upheld in State v. Nelson, 105 N.H. 184, 196 A.2d 52 (1963), cert. denied, 377 U.S. 1001, 84 S.Ct. 1936, 12 L.Ed.2d 1050 (1964), which recounts the factual setting for Martineau's conviction. Martineau's capital sentence was reduced to life imprisonment in 1972. State v. Martineau, 112 N.H. 278, 293 A.2d 766 (1972). He currently is on parole.

We invalidated a New Hampshire jury instruction because its reasonable doubt instruction was constitutionally infirm. Dunn v. Perrin, 570 F.2d 21 (1st Cir.), cert. denied, 437 U.S. 910, 98 S.Ct. 3102, 57 L.Ed.2d 1141 (1978). Breest and Martineau subsequently sought habeas corpus relief on the basis that they had been convicted under substantially identical instructions. The New Hampshire Supreme Court refused to hear the merits of their claims because neither defendant had objection to the instruction at trial, and thus both had failed to preserve the point under state law. Martineau v. Perrin, 119 N.H. 529, 404 A.2d 1100 (1979). The federal district court likewise refused to entertain the merits of the claims under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Breest v. Perrin, 495 F.Supp. 287 (1980). We affirm.

II

Petitioners first contend that we must proceed immediately to the merits of their constitutional complaints about their jury instructions because New Hampshire's enforcement of its contemporaneous objection rule did not constitute an "independent and adequate ground" for the state decision here. ¹ We think New Hampshire's procedural bar was "adequate", however, for the reason that petitioners had fair and timely notice of the true nature of New Hampshire's procedural demands. Like many jurisdictions, New Hampshire generally requires that criminal defendants object at trial if they are to save issues for review. ² E. g., State v. Cass, 121 N.H. ---, 427 A.2d 1 (March 6, 1981); Moore v. Ross, 11 N.H. 547 (1841). This requirement is simple and was clearly established at the times of petitioners' trials. Petitioners do not argue otherwise. There thus could have been no unfair surprise or disappointment of justified expectations when the state adhered to its normal policy in Martineau v. Perrin, 119 N.H. 529, 404 A.2d 1100 (1979). ³ This contrasts with cases in which the Supreme Court has held a state ground "inadequate" because it foreclosed the opportunity to present a federal issue on the basis of either a new rule applied without notice or a purportedly old rule applied in a surprisingly harsh or unexpectedly different manner. See, e. g., NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 296-301, 84 S.Ct. 1302, 1307-1310, 12 L.Ed.2d 325 (1964); Wright v. Georgia, 373 U.S. 284, 289-91, 83 S.Ct. 1240, 1243-1245, 10 L.Ed.2d 349 (1963); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 454-58, 78 S.Ct. 1163, 1167-1169, 2 L.Ed.2d 1148 (1958); Hill, The Inadequate State Ground, 65 Colum.L.Rev. 943, 953-71 (1965).

It is argued that New Hampshire's contemporaneous objection policy serves no "legitimate state interest" and so is invalid under Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965). In Henry, however, the Court did find that Mississippi's contemporaneous objection rule clearly "does serve a legitimate state interest" but that there the interest was "substantially served by petitioner's motion at the close of State's evidence asking for a directed verdict." Id. at 448, 85 S.Ct. at 567. Here petitioners took no action to bring their concerns to the attention of the trial court in a manner "substantially" similar to contemporaneous objection. Henry thus is not applicable.

Finally, petitioners claim that New Hampshire "arbitrarily" denied them the benefit of the recognized exception to the contemporaneous objection rule that the state applied in State v. Nelson, 105 N.H. 184, 196 A.2d 52 (1963), the case in which Martineau (and his co-defendant) moved for a new trial after the decision in Mapp v. Ohio and argued issues not previously raised at trial or on direct appeal. The Nelson court stated that it would consider the merits of these issues in view of two factors: (1) the gravity of the charges involved, citing State v. Long, 90 N.H. 103, 107, 4 A.2d 865 (1939) ("in capital cases the strict rules of procedure applicable to ordinary trial should yield to broad principles of equity and justice") (emphasis added and quotations omitted), and (2) the futility of the evidentiary objection then at issue prior to the decision in Mapp, 105 N.H. at 190, 196 A.2d at 57.

Assuming for the sake of argument that a state's occasional and arbitrary grant of relief from procedural requirements when so clearly discretionary as to give no cause for reasonable reliance by litigants upon its exercise can invalidate an otherwise adequate state ground on habeas corpus review, there was no arbitrary denial by New Hampshire of its Nelson exception to the contemporaneous objection rule. Petitioners fail to establish that they meet either of Nelson's two requirements. First, neither Martineau nor Breest presently face the death sentence. It is understandable that New Hampshire would confine its Nelson exception to capital cases. ⁴ "For after all, death cases are indeed different in kind from all other litigation." Coleman v. Balkcom, --- U.S. ----, ----, 101 S.Ct. 2031, 2033, 68 L.Ed.2d 334 (1981) (Stevens, J., concurring). ⁵ Second, petitioners do not show that they could have fairly considered it to be hopeless to challenge the now-disputed jury instructions at trial. The key instruction that we disapproved in Dunn v. Perrin defined reasonable doubt as "a strong and abiding conviction as still remains after careful consideration of all the facts and arguments." 570 F.2d at 23-24. Petitioners cite no cases that upheld this instruction prior to their trials. ⁶ Compare Curtis Publishing Co. v. Butts, 388 U.S. 130, 143-44 & n.8, 87 S.Ct. 1975, 1985 & n.8, 18 L.Ed.2d 1094 (1967); O'Connor v. Ohio, 385 U.S. 92, 93, 87 S.Ct. 252, 253, 17 L.Ed.2d 189 (1966). They do cite New Hampshire cases that subsequently so rule, ⁷ but these cannot justify failure to object at the times of trial. Indeed, we note that the only timely language brought to our attention is our dictum in United States v. Flannery, 451 F.2d 880, 882-83 (1st Cir. 1971), which unambiguously condemned the language in question prior to Breest's trial. Because petitioners advance no other reasons why their trial objections would have been futile, we conclude that they have not met their burden on this claim a finding that, due to the peculiar posture of this case, will also control our consideration in the next section of this decision. ⁸

III

We must now consider the extent to which federal review of petitioners' claims will intervene, notwithstanding the state's independent and adequate procedural bar, due to the special policies of federal habeas corpus review. The relevant test is set out in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). ⁹ Sykes directs that we proceed to the merits only upon petitioners' "showing of cause for the (state procedural) noncompliance and some showing of actual prejudice resulting from the alleged constitutional violation." Id. at 84, 97 S.Ct. at 2505.

The lone "cause" that petitioners assert for their failure to object at trial is the state of the law at the time of their trial, which purportedly made objection pointless. As just explained, petitioners have failed to substantiate this claimed "cause". We consequently affirm the district court without taking sides in the current controversy over whether "futility" can ever constitute "cau...