United States Court of Appeals, First Circuit
United States Court of Appeals, First Circuit
2d 1
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
* 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.
II
5
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
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
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.
10
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 "cause" under
Sykes. See, e. g., Isaac v. Engle, 646 F.2d 1129 (6th Cir. 1980) (6-3 en banc)
(futility is cause), cert. granted, --- U.S. ----, 101 S.Ct. 1973, 68 L.Ed.2d 294
(1981); Cole v. Stevenson, 620 F.2d 1055 (4th Cir.) (6-3 en banc) (futility is
not cause), cert. denied, --- U.S. ----, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980). We
are satisfied to decide this case, leaving broader holdings in this rapidly
developing area of law to cases that require them.
11
Affirmed.
Unlike the federal courts, see Fed.R.Civ.Proc. 46; Fed.R.Crim.Proc. 51; New
Hampshire also has preserved the older common law requirement of exceptions
to some degree. See State v. Boisvert, 119 N.H. 174, 400 A.2d 48 (1979);
Barton v. City of Manchester, 110 N.H. 494, 272 A.2d 612 (1970). See
generally 1 Wigmore on Evidence 18 & 20 (3d ed. 1940) (distinguishing
between objections and exceptions in evidentiary context). In the course of
finding these petitioners in procedural default, the New Hampshire court noted
that "this State requires a contemporaneous objection, but also requires an
exception to be noted." Martineau v. Perrin, 119 N.H. 529, 532, 404 A.2d 1100,
1102 (1979). Petitioners here neither objected nor excepted
For this reason we cannot consider New Hampshire's action to be "an obvious
subterfuge to evade consideration of a federal issue." Radio Station WOW, Inc.
v. Johnson, 326 U.S. 120, 129, 65 S.Ct. 1475, 1480, 89 L.Ed. 2092 (1945)
Petitioners claim that the New Hampshire court considered the merits of a tardy
jury instruction challenge in the noncapital case of State v. Belkner, 117 N.H.
462, 374 A.2d 938 (1977). Belkner is distinguishable, even assuming
procedural failings there a fact not established by that opinion and denied in
Martineau v. Perrin, 119 N.H. 529, 530, 404 A.2d 1100, 1101 (1979) ("The
issue in (State v. ) Black, (116 N.H. 836, 368 A.2d 1177 (1976)) and Belkner
was properly before us by motion or exception taken at trial."). In Belkner the
jury instruction issue was pressed on direct appeal while here it was not. Cf.
Fay v. Noia, 372 U.S. 391, 396 n.3, 83 S.Ct. 822, 826 n.3, 9 L.Ed.2d 837
(1963) (recounting New York rule that failure to utilize direct appeal bars those
arguments from later being raised on collateral review); Grace v. Butterworth,
635 F.2d 1, 11 (1st Cir. 1980) (relating Massachusetts court's grounds for
refusing to hear merits of a challenge to jury instructions, some of which
grounds distinguish between issues raised on direct and collateral review), cert.
denied, --- U.S. ----, 101 S.Ct. ----, 68 L.Ed.2d --- (1981). A state's interest in
finality could rationally lead it to erect increasingly stringent standards to be
satisfied before consideration of asserted and unpreserved trial errors, such
standards to be triggered by time and procedural lapses since the "decisive and
portentous event" of trial, Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497,
2508, 53 L.Ed.2d 594 (1977). Cf. Stone v. Powell, 428 U.S. 465, 493-94, 96
S.Ct. 3037, 3051-52, 49 L.Ed.2d 1067 (1976) (educative effect of determining
Fourth Amendment violations diminishes when taking place in "collateral
proceedings often occurring years after the incarceration of the defendant")
6
See State v. Wentworth, 118 N.H. 832, 395 A.2d 858 (1978); State v. Belkner,
117 N.H. 462, 374 A.2d 938 (1977); State v. Black, 116 N.H. 836, 368 A.2d
1177 (1976). Cf. State v. Booton, 114 N.H. 750, 762, 329 A.2d 376, 385 (1974)
(reasonable doubt is "doubt for which one has good, solid and sufficient reason
based on all the evidence")
Petitioners cite a number of New Hampshire cases showing that the state
relaxes its procedural requirements in other classes of cases. E. g., Gove v.
Crosby, 100 N.H. 380, 128 A.2d 205 (1956) (citing two types of cases in which
failure to except after an objection is overruled is excused, but making no
reference to instances in which failure to object is excused); State v. Karvelos,
80 N.H. 528, 120 A.2d 263 (1923) (failure to object and except may be excused
in order to prevent "manifest injustice"). Petitioners, however, do not contend
that they fall within any of these other categories. We therefore think that New
Hampshire dealt with petitioners on a principled rather than ad hoc basis.
Whatever is to be drawn from the Supreme Court's treatment of discretionary
Petitioner Breest argues that Sykes' "cause and prejudice" test should not apply
when a habeas petition raises only questions of law that require no factual
determinations. See Cole v. Stevenson, 620 F.2d 1055, 1069-70 (4th Cir. 1980)
(Murnaghan, J., dissenting). This reading is supported by the two sentences of
Sykes' rationale that stress the advantages of first deciding constitutional issues
when witnesses' recollections are "freshest" and "demeanor" can be observed.
Wainwright v. Sykes, 433 U.S. 72, 88, 97 S.Ct. 2497, 2507, 53 L.Ed.2d 594
(1977). The Sykes Court, however, stated that it had "several" grounds for its
conclusion. Id. Its other grounds are not susceptible to the limitation that
petitioner Breest proposes. See id. at 88-91, 97 S.Ct. at 2507-2508