USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-1994

JOHN J. SULLIVAN,

Petitioner, Appellant,

v.

WARDEN, NEW HAMPSHIRE STATE PRISON,

Respondent, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Cyr and Stahl, Circuit Judges.
______________

____________________

John J. Sullivan on brief pro se.

________________

Jeffrey R. Howard, Attorney General, and Janice K. Rundles,

__________________
_________________
Senior Assistant Attorney General, on brief for appellee.

____________________

June 26, 1996

____________________

Per Curiam.
__________

John J.

Sullivan appeals pro se

___ __

from the

denial of his

petition for a writ of habeas corpus.

For the

following reasons, we affirm.1

1

A New Hampshire state jury

second

found Sullivan guilty of the

degree murder of Lynne Rousseau

murder of Harry

Pike.

direct appeal to

Sullivan, 551
________

and the first degree

Sullivan's conviction was affirmed on

the New Hampshire Supreme Court.

A.2d 519

(N.H. 1988).

On January

State v.
_____

13, 1995,

Sullivan sought federal habeas relief pursuant to 28 U.S.C.

2254.

The habeas petition was referred to a magistrate judge

who recommended that

it be

denied.

On July

7, 1995,

the

district judge approved the recommendation of the magistrate.

This appeal followed.

Sullivan argues

that the

evidence was

insufficient to

prove the elements of premeditation and deliberation required

for a conviction of first

state law.

We disagree.

degree murder under New

Since the state

evidence of premeditation in

with its

analysis of

contention,

the

court reviewed the

some detail and we

the sufficiency of

need add only the following comments.

jury

was

not

Hampshire

fully agree

this evidence,

we

Contrary to Sullivan's

bound

by

his

expert's

____________________

1While
1

this case

was pending

on

appeal, the

President

signed into law the Antiterrorism and Effective Death Penalty

Act

of 1996,

1996).
that we

Pub. L.

104-132,

Although neither party

need not

amendments

in the

decide in
Act apply

110 Stat.

1214 (April

24,

has raised the issue, we note

this

case whether

since it

disposition.

-2-

would not

any of

the

alter our

"uncontradicted"

testimony that

Sullivan's intoxication

on

the night of the killings rendered him unable to premeditate.

See
___

State v.
_____

Rullo,
_____

412

A.2d

1009, 1011-12

(N.H.

1980)

(observing that the trier of fact may reject expert testimony

even when

the opposing party

particularly

so

in

light

including testimony regarding

has presented none).

of

countervailing

This is

evidence--

Sullivan's ability immediately

before and

after the killings to understand questions and to

express himself--from

which the

that he

of

was

capable

trier of

fact could

premeditating.

See
___

infer

Jackson
_______

v.

Virginia, 443 U.S. 307, 319 (1979) (stating that the relevant
________

question is whether, after viewing the evidence in the

light

most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt).

We

add that

Sullivan's claim that the jury

and burden

reject

as

meritless

instructions on premeditation

of proof were confusing, much less any suggestion

that these instructions were

instructions

we

adequately

"premeditation"

and

violative of due process.

explained

"knowingly"

the

and, as

difference

The

between

whole, clearly

conveyed to the jury that

proving the elements of the

Sullivan also

cross-examined

the prosecution bore the burden of

crime beyond a reasonable doubt.

contends that

him concerning

-3-

the prosecutor

a propensity

improperly

toward violence

and

general

misrepresented

evidence

"misconduct" by

habeas,

we

dislike

of

in

women,

his

the prosecutor

review

constitutional error.

state

that

due

prosecutor

closing,

and

that

court

a new

misconduct, a

On

only

for

proceedings

968 F.2d

that to prevail on a claim

habeas petitioner

"'so infected the

make the resulting

process'" (quoting Donnelly

________

this

trial.

See, e.g., Amirault v. Fair,

___ ____ ________
____

the prosecutor's conduct

unfairness as to

the

requires

1404, 1406 (1st Cir.) (explaining

of prosecutorial

that

must show

trial with

conviction a denial

v. DeChristoforo,
_____________

of

416 U.S.

637, 643 (1974))), cert. denied, 506 U.S. 1000 (1992); Puleio
____________
______

v. Vose, 830 F.2d 1197,

____

1204 (1st Cir. 1987) (observing that

habeas

review

rulings

U.S.

does

not ordinarily

extend

to

state court

on the admissibility of evidence), cert. denied, 485

____________

990 (1988).

Supreme Court found

In

the instant

case, the

New Hampshire

the challenged character evidence

to be

admissible under state law, and we do not think the admission

of the evidence--or the prosecutor's conduct in eliciting it-

-violated

due process.

Similarly, having reviewed the trial

transcript, we reject as meritless Sullivan's suggestion that

the

prosecutor's

fundamentally

repeated

closing

unfair,

remarks

especially

instructions that the

own memory of the evidence.

rendered

given the

his

trial

jurors should rely

trial

court's

on their

-4-

Last,

since Sullivan

habeas petition, we

is entitled

trial

personal

to some form of relief

of

these

the issue

in his

argument that he

because the State--which

on direct appeal with

transcripts--failed to

copy

raise

decline to address his

provided Sullivan's counsel

the

did not

provide

transcripts.

a copy of

Sullivan with

See

Cacoperdo

v.

___

Demosthenes,
___________

raised

37 F.3d 504,

in habeas

507 (9th Cir.

petition are

not

had the

appeal, and that

to the record.

Affirmed.
________

1994) (grounds not

cognizable on

cert. denied, 115 S. Ct. 1378 (1995).

____________

Sullivan has

_________

benefit of these

appeal),

We note, however, that

transcripts in

we have carefully considered

this

all citations

-5-