Timothy Dupont v. JANE COPLAN, Warden, New Hampshire State Prison

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-2377
TIMOTHY DUPONT,
Petitioner, Appellant,
v.
JANE COPLAN, Warden, New Hampshire State Prison,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.
Timothy Dupont on Motion for Certificate of Appealability.
July 9, 2004

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Per Curiam. Petitioner Timothy Dupont seeks a certificate of
appealability ("COA") to appeal from the denial of his § 2254
petition. In his pro se filings in this court, petitioner raises
multiple issues. Only the two issues that he raised in his § 2254
petition in district court are properly before us. See David v.
United States, 134 F.3d 470, 474 (1st Cir. 1998) ("It is well
established that a party may not unveil an argument in the court of
appeals that he did not seasonably raise in the district court").
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to a judgment of a state court shall be
entertained "only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United States." 28
U.S.C. § 2254(a). Where, as in this case, the claims were
adjudicated on the merits in state court, relief may be granted only
if the state court's adjudication of the claim resulted in a
decision that was "contrary to or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States;" or that was "based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding." 28 U.S.C. § 2254(d).
A COA to appeal from the denial of such a petition may issue
"only if the applicant has made a substantial showing of the denial
of a constitutional right." 28 U.S.C. § 2253(c)(2). Where, as here,
the "district court has rejected the constitutional claims on the

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merits, the showing required to satisfy § 2253(c) is
straightforward: The petitioner must demonstrate that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong." Slack v. McDaniel, 529
U.S. 473, 484 (2000). Petitioner has failed to make the requisite
showing with regard to either issue presented to the district court.
I. Sufficiency of the Indictments
A. Particularity In his memo in support of his § 2254 motion,
Dupont argued that the indictments were not sufficiently specific
to allow defendant to prepare his defense because "[t]he only
distinguishing facts among the sets of indictments are the dates."
The Sixth Amendment "requires that the defendant be informed of the
nature and cause of the accusation." United States v. Calderon, 77
F.3d 6, 9 (1st Cir. 1996) (citation omitted). "[I]n general, an
indictment is sufficiently particular if it elucidates the elements
of the crime, enlightens a defendant as to the nature of the charge
against which she must defend, and enables her to plead double
jeopardy in bar of future prosecutions for the same offense. See
Hamling v. United States, 418 U.S. 87 (1974)." United States v.
Sepulveda, 15 F.3d 1161, 1192 (1st Cir. 1993).
The indictments charged Dupont with sixty-nine counts of
felonious sexual assault, in violation of RSA 632-A:3, III. The
elements of that offense are: 1) engaging in sexual contact, 2) with
a person other than the actor's legal spouse, 3) when the person is

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under 13 years of age. Each count charged a specific sexual contact
between Dupont and his step daughter, and the month and year when
such contact occurred. The New Hampshire Supreme Court "agree[d]
with the trial court that the defendant failed to demonstrate that
he was prejudiced in his ability to prepare a defense." State v.
Dupont, 149 N.H. 70, 77 (2003). The district court concluded that
the state court's holding in that regard was not contrary to nor an
unreasonable application of clearly established federal law, as
determined by the United States Supreme Court. 8/27/03 Order, pp.
11-12. Dupont has failed to demonstrate that reasonable jurists
would find that assessment debatable or wrong.
B. Duplicity
"Duplicity is the joining in a single count of two or
more distinct and separate offenses." United States v.
Martinez Canas, 595 F.2d 73, 78 (1st Cir. 1979). "[T]he
prohibition against duplicitous indictments arises
primarily out of a concern that the jury may find a
defendant guilty on a count without having reached a
unanimous verdict on the commission of any particular
offense." United States v. Valerio, 48 F.3d 58, 63 (1st
Cir. 1995).
United States v. Verrecchia, 196 F.3d 294, 297 (1st Cir. 1999).
In his § 2254 memorandum, Dupont argued that "the manner in
which the indictments read had the effect of being duplications and
thus tainted the verdict of the jury," in violation of his right
against Double Jeopardy. This argument was made by Dupont in his
appeal to the Supreme Court of New Hampshire, where he contended
that "notwithstanding the separate indictments, they are generic in

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nature and permit the juror confusion enunciated in [State v.] Patch
[, 135 N.H. 127 (1991)]." However, the New Hampshire Supreme Court
held that the potential for jury confusion recognized in Patch "did
not exist in this case because the State did exactly what Patch
requires; it 'brought several indictments, each alleging a specific
incident, and consolidated them for trial.' Patch, 135 N.H. at 129.
The allegation of a single incident in each of a number of specific
months both ensured unanimity and precluded any danger of double
jeopardy." Dupont, 149 N.H. at 77.
The district court held that Dupont had failed to demonstrate
that the state court's resolution of that issue was contrary to or
involved an unreasonable application of federal law. Dupont has not
shown that reasonable jurists could find that assessment debatable
or wrong with respect to his claim that the indictment was
unconstitutionally duplicitous.
II. Tape-Recorded Confession
In his second Amended Petition, Dupont clarified that he was
seeking § 2254 relief on the ground that the New Hampshire Supreme
Court had misapplied the federal "harmless error" rule set forth in
Rose v. Clark, 478 U.S. 570 (1986), to his claim that the trial
court had erred in admitting his tape-recorded confession. However,
a COA may not issue unless the petitioner has made a substantial
showing of the denial of a constitutional right. As the district
court stated, "[t]here is no requirement in federal law that a taped

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confession be 'complete' before it can be admitted into evidence,
and certainly the federal constitution imposes no such requirement."
8/27/03 Order, p. 9. Therefore, the second Amended § 2254 Petition
failed to allege, much less make a substantial showing of, a
constitutional violation.
The district court noted that Dupont's original § 2254 petition
"hints at a claim that Dupont's due process rights were violated by
the admission into evidence of his taped confession." Id., p. 9 n.1.
Finding that claim to be unexhausted but "wholly without merit," the
district court denied it. Id. "An application for a writ of habeas
corpus may be denied on the merits, notwithstanding the failure of
the applicant to exhaust the remedies available in the courts of the
State." 28 U.S.C. § 2254(b)(2).
In his § 2254 memorandum Dupont argued that his due process
rights were violated by "the failure of the government to record and
introduce the entire interrogation of the defendant." § 2254
Memorandum, p. 7. In support of that argument he relies upon Crane
v. Kentucky, 476 U.S. 683 (1986). That case is inapposite however.
Dupont has not alleged that he sought and the trial court prevented
him from introducing evidence about the circumstances in which his
confession was given. Instead, he argued that the admission into
evidence of the selective recording of his interrogation misled the
jury by keeping from them the "context of the 'confession' and the
coercive nature of the interrogation as alleged by the defendant."

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The police officers' failure to record the entire interrogation
arguably could be characterized as a failure to preserve evidence.
Such a failure violates a defendant's due process rights only if the
government: "(1) acted in bad faith when it [failed to preserve]
evidence, which (2) possessed an apparent exculpatory value and,
which (3) is to some extent irreplaceable." United States v. Femia,
9 F.3d 990, 993-94 (1st Cir. 1993).
It appears that Dupont could not satisfy the second
requirement. The state court found that "[t]he defendant's taped
confession was merely cumulative of [other] evidence," that there
was "no evidence that the defendant made exculpatory or otherwise
inconsistent statements during the unrecorded portion of his
statements to the police," and that "the victim's testimony that
the defendant had committed all of the acts charged was
essentially uncontradicted." Dupont, 149 N.H. at 76. The New
Hampshire Supreme Court concluded that "it is clear beyond a
reasonable doubt that the defendant would have been convicted even
if the recording had been excluded." Id. Dupont has not challenged
those findings. Under these circumstances, reasonable jurists
could not find debatable or wrong the district court's assessment
that Dupont's due process claim was meritless.
Dupont's requests for a COA and for an evidentiary hearing
are denied. The appeal is terminated.

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