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[NOT FOR PUBLICATION]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 found Sullivan guilty of the
second degree murder of Lynne Rousseau and the first degree
murder of Harry Pike. Sullivan's conviction was affirmed on
direct appeal to the New Hampshire Supreme Court. State v. _____
Sullivan, 551 A.2d 519 (N.H. 1988). On January 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 degree murder under New Hampshire
state law. We disagree. Since the state court reviewed the
evidence of premeditation in some detail and we fully agree
with its analysis of the sufficiency of this evidence, we
need add only the following comments. Contrary to Sullivan's
contention, the jury was not bound by his expert's
____________________
1While this case was pending on appeal, the President 1
signed into law the Antiterrorism and Effective Death Penalty
Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (April 24,
1996). Although neither party has raised the issue, we note
that we need not decide in this case whether any of the
amendments in the Act apply since it would not alter our
disposition.
-2-
"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 has presented none). This is
particularly so in light of countervailing evidence--
including testimony regarding Sullivan's ability immediately
before and after the killings to understand questions and to
express himself--from which the trier of fact could infer
that he was capable of premeditating. See 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 we reject as meritless
Sullivan's claim that the jury instructions on premeditation
and burden of proof were confusing, much less any suggestion
that these instructions were violative of due process. The
instructions adequately explained the difference between
"premeditation" and "knowingly" and, as a whole, clearly
conveyed to the jury that the prosecution bore the burden of
proving the elements of the crime beyond a reasonable doubt.
Sullivan also contends that the prosecutor improperly
cross-examined him concerning a propensity toward violence
-3-
and a general dislike of women, that the prosecutor
misrepresented evidence in his closing, and that this
"misconduct" by the prosecutor requires a new trial. On
habeas, we review state court proceedings only for
constitutional error. See, e.g., Amirault v. Fair, 968 F.2d ___ ____ ________ ____
1404, 1406 (1st Cir.) (explaining that to prevail on a claim
of prosecutorial misconduct, a habeas petitioner must show
that the prosecutor's conduct "'so infected the trial with
unfairness as to make the resulting conviction a denial of
due process'" (quoting Donnelly v. DeChristoforo, 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 does not ordinarily extend to state court
rulings on the admissibility of evidence), cert. denied, 485 ____________
U.S. 990 (1988). In the instant case, the New Hampshire
Supreme Court found 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 closing remarks rendered his trial
fundamentally unfair, especially given the trial court's
repeated instructions that the jurors should rely on their
own memory of the evidence.
-4-
Last, since Sullivan did not raise the issue in his
habeas petition, we decline to address his argument that he
is entitled to some form of relief because the State--which
provided Sullivan's counsel on direct appeal with a copy of
the trial transcripts--failed to provide Sullivan with a
personal copy of these transcripts. See Cacoperdo v. ___ _________
Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (grounds not ___________
raised in habeas petition are not cognizable on appeal),
cert. denied, 115 S. Ct. 1378 (1995). We note, however, that ____________
Sullivan has had the benefit of these transcripts in this
appeal, and that we have carefully considered all citations
to the record.
Affirmed. ________
-5-