Breest v. NH State Prison, Warden

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Robert Breest
v.
NH State Prison, Warden
Case No. 21-cv-1034-SE
ORDER
Petitioner Robert Breest filed a “Motion for Enforcement of
Opinion and Order on Petition for Writ of Habeas Corpus.” Doc.
no. 1. In his motion, Breest challenges his sentence for his
conviction of first degree murder in New Hampshire Superior
Court in 1973. Specifically, he claims that the sentencing
judge’s determination that his crime qualified as a psycho-
sexual murder under New Hampshire law, which resulted in an
enhanced sentence, violated his right to a jury trial on that
issue. Id. at 3-4.
On preliminary review, the magistrate judge construed
Breest’s motion as a petition for writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254. Doc. no. 3 at 1. The magistrate
judge noted that Breest had previously filed multiple petitions
in this court on the same issue. Id. at 2.
The first petition resulted in an order remanding Breest’s
case to the New Hampshire Supreme Court. Breest v. Helgemoe,
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Crim. No. 77-45, slip op. (D.N.H. April 18, 1977) (Bownes, J.)
(“1977 Order”). In the 1977 Order, Judge Bownes stated that
Breest was denied the chance to present evidence regarding the
psycho-sexual enhancement. Id. at 18. Judge Bownes held that
Breest was entitled to a new sentencing hearing in which he
would be afforded “an opportunity to challenge and rebut the
inferences raised at the trial which were not pertinent to the
issue of first degree murder, but were used to increase his
minimum sentence from eighteen to forty years.” Id.
In accordance with the 1977 Order, the case was remanded to
state court, and the New Hampshire Superior Court held Breest’s
new hearing on October 16, 1981. See State v. Breest, 124 N.H.
339, 342 (1983). After the hearing, during which testimony was
presented, the superior court certified that Breest’s crime was
psycho-sexual in nature. See id. at 342, 345-46. Breest appealed
the superior court’s certification, and the New Hampshire
Supreme Court affirmed. Id. at 346.
Breest filed a second petition for writ of habeas corpus in
this court in 2006. That petition challenged his sentence and
conviction on several grounds, including that “the state
sentencing judge’s finding that his crime qualified, under state
law, as a psycho-sexual murder, violated his right to a jury
trial on that issue.” Breest v. NH State Prison Warden, No. 77-
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CV-45-SM, 2006 WL 1520221, at *1 (D.N.H. May 30, 2006) (“2006
Order”). The court denied the petition, holding that it was a
second or successive petition because Breest had previously
“filed a federal habeas petition challenging this same
conviction, on similar grounds.” Id. Because Breest had not
sought or received authorization from the First Circuit before
filing his petition, he was not entitled to file a second or
successive petition with the district court. Id. Breest appealed
the 2006 Order and the First Circuit agreed with the district
court’s conclusion and terminated the appeal. Breest v. NH State
Prison Warden, No. 77-cv-45-SM, doc. no. 39.
In light of that procedural posture, the magistrate judge
deemed Breest’s instant motion to be a successive habeas
petition. Doc. no. 3 at 3. Because Breest had not obtained the
First Circuit’s permission to file his successive petition, the
magistrate judge recommended that the undersigned dismiss the
petition pursuant to 28 U.S.C. § 2244(b), without prejudice to
Breest’s ability to apply in the First Circuit for permission to
file a similar § 2254 petition. Id. at 4.
Breest objects to the magistrate judge’s Report and
Recommendation. Doc. no. 4. He argues that his current motion in
is not a petition for writ of habeas corpus. He contends instead
that his motion seeks an order enforcing the directives in the
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1977 Order on his original petition for habeas corpus—that the
case be remanded to state court for a hearing regarding the
applicability of the psycho-sexual enhancement. He argues that,
therefore, his filing is not a successive petition for writ of
habeas corpus. He is incorrect.
Breest’s motion specifically states that he seeks a writ of
habeas corpus. Doc. no. 1 at 1 (stating that Breest “moves this
court to now issue an absolute an[d] unconditional writ of
habeas corpus”); accord doc. no. 1 at 5. His motion challenges
the state sentencing judge’s determination that his crime
qualified as a psycho-sexual murder under New Hampshire law on
the ground that the finding violated his right to a jury trial.
Id. at 2-5. That is the same ground on which he challenged his
sentence in previous federal habeas petitions. See, e.g., 2006
Order, 2006 WL 1520221, at *1. Thus, the magistrate judge
correctly construed Breest’s filing as a successive petition for
writ of habeas corpus.
Even if Breest were correct that his motion did not seek a
writ of habeas corpus and merely sought to enforce the 1977
Order, he would not be entitled to relief in this case. As the
New Hampshire Supreme Court noted, Breest received an
evidentiary hearing in superior court on the question of whether
his crime was psycho-sexual in nature in accordance with the
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1977 Order. Breest, 124 N.H. at 342, 345-46. Therefore, Breest
has already been afforded the relief he claims in his objection
to be seeking in this case.
For these reasons, after due consideration of the
petitioner’s objection (doc. no. 4), I herewith approve the
Report and Recommendation of Magistrate Judge Andrea K.
Johnstone dated April 1, 2022 (doc. no 	3). For the reasons
explained therein, Breest’s petition for a writ of habeas corpus
under 28 U.S.C. § 2254 (doc. no. 1) is dismissed for lack of
subject matter jurisdiction. See 28 U.S.C. § 2244. To permit
this court to consider Breest’s petition, he must first “move in
the appropriate court of appeals for an order authorizing the
district court to” do so. Id. § 2244(b)(3)(A).
I decline to issue a certificate of appealability because
petitioner has failed to make a substantial showing that he has
been denied a constitutional right.
The clerk is directed to enter judgment and close this
case.
SO ORDERED.
____________________________
Samantha D. Elliott
United States District Judge
Date: June 17, 2022
cc: Robert Breest, pro se
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