Breest v. NH Attorney General

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Breest
v. 	Case No. 18-cv-908-SM
Gordon MacDonald, New Hampshire
Attorney General
REPORT AND RECOMMENDATION
Pro se plaintiff Robert Breest, a New Hampshire prisoner
presently housed in a Massachusetts prison, filed this action
pursuant to 42 U.S.C. § 1983. 	See Oct. 4, 2018 Compl. (Doc. No.
1) (“Compl.”), at 1. 	Breest has been incarcerated nearly fifty
years pursuant to a first-degree murder conviction and has
previously filed a number of collateral actions seeking to
overturn his conviction. 	See State v. Breest, 169 N.H. 640, 642
& n.1 (2017) (“Breest 2017”) (collecting cases).
The present action relates to a 2012 DNA test using the “Y-
STR” method of analysis, which examined male genetic material
found under the fingernails of the victim of the murder of which
Breest was convicted. 	The 2012 test revealed two DNA “profiles”
in the genetic material: one “major” and one “minor.” 	Breest
was excluded as the source of the major profile, but he was not
excluded as the source of the minor profile.
In this action, Breest seeks an order from this court
directing the defendant, the New Hampshire Attorney General, to
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search the “U.S. Y-STR DNA database” and “report the results,”
including whether there is a “match.” 	Compl. at 1, 11. 	Breest
also seeks an order directing the Attorney General “to reveal
the [identity] of the single match in the minor profile . . ..”
Id. at 11.
The defendant moves to dismiss Breest’s claim. 	See Oct. 1,
2019 Def.’s Mot. to Dismiss (Doc. No. 14). 	Breest opposes
dismissal. 	See Oct. 15, 2019 Pl.’s Obj. (Doc. No. 15). 	For the
reasons that follow, the undersigned magistrate judge recommends
that the district judge dismiss Breest’s complaint.
Motion to Dismiss Standard
The defendant’s motion to dismiss is filed pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. 	“Dismissal
pursuant to Rule 12(b)(6) is proper if – after accepting all
well-pleaded facts as true and viewing them in the light most
favorable to [Plaintiff] -- the complaint fails” to state a
claim upon which relief might be granted. 	Villeneuve v. Avon
Prods., Inc., 919 F.3d 40, 49 (1st Cir. 2019). 	Conclusory
allegations, however, are disregarded. 	Dumont v. Reily Foods
Co., 934 F.3d 35, 39-40 (1st Cir. 2019). 	The scope of the
court’s review is generally limited to “‘facts and documents
that are part of or incorporated into the complaint,’” as well
as “‘documents incorporated by reference . . . , matters of
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public record, and other matters susceptible to judicial
notice.’” 	Giragosian v. Ryan, 547 F.3d 59, 65 (1st Cir. 2008)
(citations omitted). 	As plaintiff is proceeding pro se in this
action, the court construes his pleadings liberally. 	See
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Background
I. 	Murder of Susan Randall
Susan Randall was last seen alive on the evening of
February 27, 1971. 	See State v. Breest, 116 N.H. 734, 738-39
(1976). 	On that evening, witnesses saw Randall hitchhiking on
Granite Street in Manchester. 	See id. at 739. 	Witnesses saw
Randall enter a car like Breest’s car, which was piloted by a
person fitting Breest’s description. 	See id. 	Breest denied
being present in Manchester, but several witnesses placed Breest
in the area around the time Randall was last seen on February
27. 	See id. at 739-40.
On March 2, 1971, a state highway employee discovered
Randall’s body lying on ice covering the Merrimack River near
Concord, New Hampshire. 	See id. at 737-38. 	A medical examiner
conducted an autopsy, during which he clipped Randall’s
fingernails. 	See Breest 2017, 169 N.H. at 644; Breest, 116 N.H.
at 738. 	The medical examiner determined that Randall died in
the late evening of February 27 from multiple blunt injuries
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caused by a beating. 	See Breest, 116 N.H. at 738.
Breest was charged with first-degree murder for Randall’s
death. 	See id. at 737. 	A jury found Breest guilty, and he was
sentenced to life in prison. 	See id. at 753. 	The New Hampshire
Supreme Court (“NHSC”) affirmed the conviction. 	See id. at 756.
Breest maintains his innocence “and has instituted numerous
collateral proceedings in an effort to secure his freedom.”
Breest 2017, 169 N.H. at 642 & n.1. 	Breest remains
incarcerated.
II. 	DNA Testing
This case arises from DNA tests and analyses on genetic
material found on the fingernail clippings taken during
Randall’s autopsy. 	The NHSC summarized the results of these DNA
tests:
Between 2000 and 2008, three rounds of DNA testing were
conducted 	on 	Randall's 	fingernail 	clippings. 	None 	of
these tests excluded the defendant as the contributor of
the DNA. In 2012, with the State's consent, the defendant
obtained 	another 	round 	of 	DNA 	testing. 	Because 	of 	the
analyst's use of new technology, the DNA test indicated
that 	the 	fingernail 	clippings 	contained 	DNA 	from 	two
different males. The defendant could not be excluded as
the contributor of one of the male DNA profiles, but he
was excluded as the contributor of the other profile.
Breest 2017, 169 N.H. at 646. 	Based on the results of the 2012
testing and analysis, Breest moved for a new trial in the state
court under N.H. Rev. Stat. Ann. § (“RSA”) 651-D:2, VI(b). 	See
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Breest 2017 (Rule 7 Notice of Discretionary Appeal filed Aug.
28, 2015) (Doc. 14-2, at 28).
Under RSA 651-D:2, “[i]f several prerequisites are met,” a
prisoner can petition the court for forensic DNA testing of
biological material. 	See Breest 2017, 169 N.H. at 646
(summarizing RSA 651-D:2). 	If the results of the DNA test “are
favorable to the petitioner,” then the court “shall order a
hearing.” 	Id. 	After the 2012 DNA test was conducted, the state
court held a hearing to determine whether a new trial was
warranted. 	See id. at 646-47. 	At that hearing, Breest offered
the testimony of Huma Nasir, who testified as an expert about
the 2012 DNA testing, which used the “Y-STR” method of analysis.1
See id. 	The State called Dr. Charlotte Word as an expert on the
same issue. 	See id. at 647.
1According to the Superior Court’s summarization of Nasir’s
testimony, the “Y-STR” method “is a specialized testing
technique that ignores any female DNA in a sample and only tests
for male DNA.” 	State v. Breest, No. 217-1972-CR-789 (N.H.
Super. Ct., Merrimack Cty. July 27, 2015) (order denying motion
for new trial) (Doc. 14-2, at 29). 	The Y-STR method tests the
data contained in Y-chromosome DNA, which is found in males only
and, for that reason, is inherited by men through their paternal
lineage. 	See id. (Doc. No. 14-2, at 30).
Because it is passed from father to son, the data found in
Y-chromosome DNA is not unique absent a mutation. 	See id. at
30-31. 	Therefore, the Y-STR method cannot, with the same high
degree of probability as an autosomal STR test, identify a
single individual as being the source of particular genetic
material. 	See id. 	Rather, the Y-STR test can identify a
particular genetic profile likely shared by multiple
individuals. 	Id.
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The state court denied Breest’s motion for a new trial,
finding that the results of the 2012 Y-STR DNA testing and
analysis were more inculpatory than exculpatory. 	See id. 	The
court found that Breest failed to show that the new DNA evidence
“would probably result in an acquittal.” 	Id. at 647.
The New Hampshire Supreme Court affirmed, holding, in
relevant part:
[A]ll four of the DNA tests conducted since 2000 have
failed to exclude the defendant as the source of some
of the male DNA under Randall's fingernails, thus
further contradicting his position at trial that he
had never interacted with Randall and was not in the
State when she was killed. 	This is especially
consequential in light of the relatively low
prevalence of the alleles (the variational forms of a
gene appearing on a chromosome) tested on the
fingernail clippings, according to evidence presented
to the trial court. 	The alleles, which are consistent
with the defendant's alleles, statistically appear in
the Caucasian population only “roughly one time out of
140,000 individuals[,] in the African American
population roughly once in 26,000 individuals and in
the Hispanic population approximately once in 32,000
individuals.” 	Viewed together with the evidence
presented at the defendant's original trial, we agree
with the trial court that, even considering the 2012
test results, the DNA evidence is “more inculpatory
than exculpatory.”
Id. at 654 (citation omitted).
III. Breest’s Claim
Breest brought this action for injunctive relief under
42 U.S.C. § 1983. 	Specifically, Breest asks the court to
direct the Attorney General to “enter the results of the
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major DNA profile of the biology found under Susan
Randall’s fingernails . . . into the U.S. Y-STR database
and report on the results.” 	Compl. at 1. 	Breest also asks
the court to direct the Attorney General to “reveal who the
single match is in the U.S. Y-STR database of the minor
profile.” 	Id.
Construed liberally, Breest’s complaint asserts a claim
under the Fourteenth Amendment’s due process clause.2 	He asserts
that he has a right to DNA testing as a matter of due process
and that he has been denied this right by New Hampshire’s
failure to disclose whether there is a match in the major DNA
profile, and by its failure to disclose the alleged African-
American match for the minor DNA profile in the Y-STR database.
Breest contends that he was, in fact, not a match to the minor
DNA profile because he only matched at two of seventeen loci,
while the FBI standard for a match requires a match at ten of
seventeen loci. 	Further, Breest asserts that the minor DNA
profile was an African-American profile, and that he is not
African-American.
2The court liberally construes filings and pleadings by pro
se parties, and the court has done its best to “intuit the
correct cause of action” based on the facts and theories alleged
in Breest’s complaint. 	See Ahmed v. Rosenblatt, 118 F.3d 886,
890 (1st Cir. 1997); Tierney v. Town of Framingham, 292 F. Supp.
3d 534, 540-41 (D. Mass. 2018).
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Discussion
I. 	Attorney General’s Motion to Dismiss
The Attorney General moves to dismiss Breest’s complaint on
the ground that it does not set forth a cognizable claim for
relief. 	Breest opposes dismissal.
The Attorney General argues that the technology behind the
2012 Y-STR DNA test precludes Breest from obtaining evidence
that exonerates him because the test did not rule him out as a
contributor of the minor DNA profile. 	Similarly, the Attorney
General argues that it would be technologically impossible for
the State to do what Breest asks because law enforcement cannot
use data produced from a Y-STR DNA test in the National DNA
Index System/Combined DNA Index System (“CODIS”).
Arguments based on facts outside the allegations in the
complaint, however, are inappropriate under Federal Rule of
Civil Procedure 12(b)(6), which limits the court’s analysis to
the allegations in the complaint. 	See e.g., Dumont, 934 F.3d at
39-40. 	To establish the technological impossibility of Breest’s
request, the Attorney General cited to legal opinions from
other, unrelated cases that summarized expert testimony
presented in those cases. 	See Oct. 1, 2019 Def.’s Mem. (Doc.
14-1, at 6-8). 	The Attorney General cannot circumvent the
limitations of Rule 12(b)(6) by relying on legal opinions to
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establish facts. 	Even so, Breest did not ask the Attorney
General to identify matches to the Y-STR data using the CODIS
database. 	Compl. at 1, 11; Oct. 15, 2019 Pl.’s Obj. (Doc. No.
15, at 8). 	Rather, he requested that law enforcement identify
matches from the “U.S. Y-STR database,” a database that was
discussed at the state court hearing. 	Breest 2017, No. 217-
1972-CR-789 (N.H. Super. Ct., Merrimack Cty.) (May 20, 2015 Hr’g
Tr.) (“May 20, 2015 Tr.”) (Doc. No. 1-1 at 9); see also Oct. 15
2019 Pl.’s Obj. (Doc. No. 15, at 8).
II. 	Dismissal as Patently Meritless
Despite the Attorney General’s failure to raise grounds
warranting dismissal, Breest’s complaint should still be
dismissed. 	A court may dismiss a complaint on grounds not
raised by the parties if “the allegations contained in the
complaint, taken in the light most favorable to the plaintiff,
are patently meritless and beyond all hope of redemption.”
Gonzalez v. United States, 257 F.3d 31, 37 (1st Cir. 2001) (“If
it is crystal clear that the plaintiff cannot prevail and that
amending the complaint would be futile, then a sua sponte
dismissal may stand.”).
Broadly, in his complaint, Breest seeks to vindicate a
postconviction right of access to DNA evidence under the
Fourteenth Amendment’s due process clause. 	See Compl. at 1, 5-
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6, 10-11. 	Breest also points to the maxim “ubi jus ibi
remedium,” meaning that where a legal right exists, there must
be some useful remedy for violation of that right. 	See id. at
5-6; see also Knight v. Town of Glocester, 831 F.2d 30, 32 (1st
Cir. 1987). 	Breest, however, has been provided access to the
DNA evidence in his case, and he has had a fair opportunity to
obtain the evidence he seeks in this action in the proceedings
before the state court.
A due process claim relating to postconviction discovery
requires the plaintiff to show that the state’s postconviction
discovery procedures “‘offend[] some principle of justice so
rooted in the traditions and conscience of our people as to be
ranked as fundamental’ or ‘transgress[] any recognized principle
of fundamental fairness in operation.’” 	Tevlin v. Spencer, 621
F.3d 59, 70 (1st Cir. 2010) (quoting Dist. Atty.’s Office v.
Osborne, 557 U.S. 52, 69 (2009)).3 	Under RSA 651-D:2, New
3In 2007, this Court found that Breest had a “cognizable due
process claim” “[t]o the extent there is a reasonable
probability that the results of the DNA testing requested by
Breest would have affected the outcome of his state court
proceedings if those results had been available at the time of
his conviction[.]” 	Breest v. N.H. Atty. Gen., 472 F. Supp. 2d
116, 121 (D.N.H. 2007). 	However, in 2009, the Supreme Court
held that there is no freestanding (i.e., substantive)
postconviction due process right to access to DNA evidence. 	See
Osborne, 557 U.S. at 72. 	Breest is therefore limited to a claim
that the state’s postconviction procedures, as provided, are
inadequate. 	See id. at 69. 	As explained in this Report and
Recommendation, New Hampshire provides a limited statutory
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Hampshire provided Breest with a postconviction procedure which
he used to obtain the 2012 DNA testing and analysis. 	The state
court held a hearing to determine whether the DNA evidence
warranted ordering a new trial. 	In those proceedings, Breest
had a full opportunity to make the same requests as he makes in
the present claim for injunctive relief and to present his case
as to why the DNA testing and analyses exonerated him. 	See RSA
651-D:2.
The record shows that Breest was able to cross-examine the
state’s expert witness – and present his own expert witness –
about the results of the 2012 DNA test and analysis. 	See Breest
2017, 169 N.H. at 646-47. 	Breest could have asked either his
expert or New Hampshire’s expert about whether the analysis of
the Y-STR DNA resulted in any matches in the U.S. Y-STR
database. 	In fact, he did. 	See May 20, 2015 Tr. (Doc. No. 1-1,
at 5, 10-11) (“And the [U.S. Y-STR] database returned one
profile; correct?”).
Breest also had the opportunity to appeal the state court’s
adverse decision to the NHSC, which he did. 	Under RSA 651-D:2,
Breest even retains a right, subject to certain limitations, to
seek new DNA testing and evidence if new technology is
developed. 	Breest has been provided sufficient process to
postconviction right of access to DNA evidence, which Breest was
able to utilize.
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vindicate the extent of his right of postconviction access to
DNA evidence.
Lastly, although his complaint alleges faults in his access
to evidence, Breest also argues the merits of the state court’s
interpretation of the 2012 Y-STR DNA test and analysis. 	In that
argument, Breest essentially asserts that the state court
incorrectly decided his motion for a new trial under RSA 651-
D:2. 	See Oct. 15, 2019 Pl.’s Obj. (Doc. No. 15, at 2-5).
Breest, however, cannot use this court as a vehicle to challenge
the state court’s substantive findings regarding whether the
2012 Y-STR DNA test exonerates him. 	See, e.g., Lance v. Dennis,
546 U.S. 459, 463 (2006) (“[U]nder what has come to be known as
the Rooker-Feldman doctrine, lower federal courts are precluded
from exercising appellate jurisdiction over final state-court
judgments.”). 	To the extent Breest’s complaint is intended to
be a challenge to the state court’s decision with respect to the
2012 Y-STR DNA test, it is barred under the Rooker-Feldman
doctrine. 	See id.
Furthermore, to the extent Rooker-Feldman does not apply,
collateral estoppel bars the court from revisiting the state
court’s decision. 	Collateral estoppel bars an issue that was
adjudicated in an earlier proceeding from being relitigated by
the parties. 	See Robb Evans & Assocs. v. United States, 850
F.3d 24, 31 (1st Cir. 2017); see also Johnson v. Mahoney, 424
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F.3d 83, 93 (1st Cir. 2005) (“It is well-established that the
doctrine of collateral estoppel applies in civil rights actions
brought pursuant to 42 U.S.C. § 1983.”). 	“Federal courts must
give to state-court judgments the same preclusive effect as
would be given by the courts of the state from which the
judgments emerged.” 	Johnson, 424 F.3d at 93.
New Hampshire gives preclusive effect to an issue decided
by a state-court judgment if:
(1) the issue subject to estoppel is identical in each
action; (2) the first action resolved the issue
finally on the merits; (3) the party to be estopped
appeared in the first action or was in privity with
someone who did; (4) the party to be estopped had a
full and fair opportunity to litigate the issue; and
(5) the finding at issue was essential to the first
judgment.
Garod v. Steiner Law Office, PLLC, 161 A.3d 104, 107 (N.H.
2017). 	To the extent that Breest claims here that the 2012
Y-STR DNA test exonerated him, all of the elements of
collateral estoppel are present. 	For the reasons discussed
above with regard to Breest’s due process claim, Breest had
a full and fair opportunity to litigate the issue of
whether the 2012 DNA testing exonerated him in the state
court, and the state court ruled against him on that issue.
Therefore, Breest is barred from revisiting that issue in a
§ 1983 action in this court.
For those reasons, Breest fails to allege any actionable
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legal theory on which the relief he seeks could be granted, and
his complaint cannot be saved by amendment with additional
facts. 	Breest’s claim is patently meritless and, further,
beyond all hope of redemption. 	Therefore, the district judge
should dismiss Breest’s complaint.
Conclusion
For the foregoing reasons, the undersigned recommends that
the district judge dismiss Breest’s complaint and DENY the
Attorney General’s motion to dismiss (Doc. No. 14) as moot. 	Any
objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. 	See Fed. R.
Civ. P. 72(b)(2). 	The fourteen-day period may be extended upon
motion. 	Failure to file specific written objections to the
Report and Recommendation within the specified time waives the
right to appeal the district court’s order. 	See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016); Fed. R.
Civ. P. 72(b)(2).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
February 20, 2020
cc: 	Robert Breest, pro se
Elizabeth C. Woodcock, Esq.
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