United States Court of Appeals
For the First Circuit
No. 03-2011
ROBERT E. HAINES,
Petitioner, Appellant,
v.
HENRY RISLEY, ET AL.,
Respondents, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Boudin, Chief Judge,
Campbell and Cyr, Senior Circuit Judges.
Bjorn Lange, Assistant Federal Public Defender, for appellant.
Ann M. Rice, Associate Attorney General, Criminal Justice
Bureau, with whom Kelly A. Ayotte, Attorney General, was on brief
for appellees.
June 24, 2005
BOUDIN, Chief Judge. On December 1, 1995, in
Hillsborough County Superior Court in Manchester, New Hampshire, a
jury convicted Robert Haines of one count of felonious reckless
conduct, N.H. Rev. Stat. Ann. § 631:3, II (1996), and one count of
felonious use of body armor, id. § 650-B:2 (1996). Haines was
sentenced to the mandatory minimum of three to six years'
imprisonment on the former count, and a 12-month suspended sentence
on the latter. Thereafter, the New Hampshire Supreme Court
affirmed. State v. Haines, 709 A.2d 762 (N.H. 1998).
After unsuccessful collateral attacks in state court,
Haines sought habeas relief in the federal district court, which
granted summary judgment in favor of the state. We granted a
certificate of appealability to consider Haines' ineffective
assistance claims and now affirm.
The crux of the main charge in state court--reckless
endangerment--was that early on the morning of February 19, 1995,
Haines had taken a loaded rifle out of his truck and pointed it at
an individual named Christian Busch.1 The prior evening, Haines
had driven to Manchester in a truck with his wife to campaign for
himself in the presidential primaries. While he was campaigning in
1
Haines had unquestionably been wearing body armor; but the
body armor charge depended on proof that he had done so in the
course of a felony, here reckless endangerment. The two crimes,
although tried together, were listed in separate indictments; but
the body armor indictment repeated the facts underlying the
endangerment indictment.
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a local bar named The Salty Dog, dressed in Western garb and a
cowboy hat, another patron taunted him, tearing up one of his
campaign pamphlets and throwing his pocket-sized American flag on
the floor; thereafter, outside the bar, the patron pushed Haines
who then sought out the police. It was now nearly one o'clock on
the morning of the 19th.
Police Officer Robert Oxley spoke to Haines and the bar
bouncer and concluded that Haines had not been harmed. Haines
became agitated, threatened to report Oxley for dereliction of
duty, and was told to leave the area. Haines eventually retreated
to his truck, which was parked down the block; Oxley, concerned
about Haines, returned to his cruiser but stayed in the area. A
little later, two other bar patrons--Jeffrey Meyer and Christian
Busch--left the premises and started down the block toward Haines
and his truck.
Seeing Haines, Busch mistook him for a friend for whom he
had been waiting, started toward him at a jog or trot, and shouted
an obscenity. Haines extracted a rifle from the truck and Meyer
later testified that Haines had pointed it at Busch. Oxley, who
was then driving back through the area, later testified that he had
seen Haines retrieve the rifle and pump it to chamber a round, but
had not seen Busch or the pointing of the rifle at Busch. Busch,
who had fled the scene when confronted with the rifle, did not
testify.
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Haines was arrested, charged as described above, and
tried. The indictment, tracking the language of the New Hampshire
reckless endangerment statute, charged as to main offense that
Haines had "recklessly engage[d] in conduct which placed or may
have placed another in danger of serious bodily injury by the use
of a deadly weapon in that he brandished a loaded Remington .35-
caliber rifle and pointed it at Christian Busch." Initially, the
prosecution's main theory was that Busch was the endangered person.
As his main defense at trial, Haines maintained that he
had brandished the gun to ward off a perceived threat from Busch,
but had not chambered a bullet until after Busch had fled and thus
could not in fact have endangered Busch. Haines' wife testified
that Haines had been beaten in a prior incident while campaigning
and that Busch had been approaching quickly in a threatening
manner. She also said that Haines had not pointed the gun at Busch
but was somewhat shaky on this point. Haines did not testify.
During the trial, the state did adduce some evidence that
there were other individuals outside the bar when Haines had his
nearby confrontation with Busch, but when the prosecution began to
explore the risk of harm to others at the start of trial the court
expressed concern and admonished counsel to "stay within the format
of opening statements." Nevertheless, before the case went to the
jury, the trial judge refused a request by Haines that the jury be
instructed that only the danger to Busch could be considered.
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After retiring, the jury inquired: "Can we consider that
reckless conduct was directed only at Mr. Busch or at other
people?" The court responded that the state needed to prove that
Haines had brandished a loaded Remington .35-caliber rifle and
pointed it at Busch and that such conduct placed or might have
placed another person--including but not limited to Busch--in
danger of serious bodily injury. Haines' attorney again objected
without effect. The conviction followed.
On direct appeal, Haines' counsel did not challenge the
conviction but focused instead on whether the three-year statutory
minimum sentence applied and whether a pair of firearm enhancement
provisions in the endangerment statute violated the state
constitution's double jeopardy clause. Haines then began his
travel through state and federal habeas proceedings. In this
court, Haines argues exclusively that his representation both at
trial and in the state appeal were constitutionally inadequate.
An ineffective assistance claim requires Haines to show
(1) that counsel's performance fell below an objective standard of
reasonableness, and (2) that counsel's failures were so serious as
to deprive the defendant of a fair trial. Strickland v.
Washington, 466 U.S. 668, 687 (1984). It will simplify matters to
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assume, overmuch in Haines' favor, that his present claims were all
properly preserved in state court and that our review is de novo.2
Haines' critique of his counsel's performance at trial
is not persuasive. In the first of two lines of criticism, Haines
says that he told his counsel that he did not point his rifle at
Busch but counsel did not press this contention at trial and
instead effectively conceded the point in closing argument by
stating that Haines had "stuck the gun basically in [Busch's]
face." This, says Haines, amounted to ignoring a promising line of
defense and giving the case away to the prosecution.
However, counsel's words fell short of conceding that
Haines had actually pointed the gun at Busch; pointing was not
mentioned and counsel's description fit within the picture
presented by Haines' wife--that Busch had come within six feet of
her husband before turning away and that, pointing or not, Haines
was at least then holding the weapon in a threatening manner
defensively, for the purpose of warding off a perceived attack.
Moreover, Meyer gave positive and emphatic direct testimony that he
2
In most contexts, federal habeas review of state convictions
is subject to standards of review favorable to the state where the
federal issues of fact or law have been decided in the state court;
and where they have not been decided, forfeiture or failure to
exhaust are likely to bar the claims. See 28 U.S.C. § 2254 (2000);
Wainwright v. Sykes, 433 U.S. 72, 81-91 (1977). New Hampshire has
colorable arguments that some of Haines' present claims were not
fully presented to the state court or were presented and the state
court's judgment must be deferred to; but our contrary assumption
avoids detours and does not alter the result.
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had seen Haines point the gun directly at Busch, and it was not
disputed that Busch had rapidly left the scene. Haines' wife
testified at first that the rifle had not been pointed at Busch but
her later testimony was less clear on this issue,3 and as the
defendant's spouse she was especially vulnerable to impeachment
(although we recognize that Meyer was a longtime friend of Busch).
Haines previously argued that his attorney had improperly prevented
him from testifying, but the state and district courts rejected
that claim and we did not think that it warranted a certificate of
appealability.
Of course, if counsel had no other defense, failing to
press even a marginal argument would take some explaining. But
defense counsel did offer a fairly impressive argument based upon
two interlocking claims: first, that Haines had reasonably felt
threatened based on Busch's extraordinary conduct in suddenly
running at him as well as other recent and prior events (e.g., the
bar scuffle, the prior beating); and second, that Haines had warded
off Busch without endangering him by displaying the rifle with no
bullet in the chamber.
3
Although she initially testified that her husband had not
turned to point the gun at Busch until after Busch had fled,
Haines' wife conceded shortly thereafter that Haines might have
turned to face Busch as he was fleeing--and then further conceded
that Haines might have backed away from the truck to face Busch
with the gun before Busch fled, but that she could not be certain.
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This line of attack on the prosecution's case may almost
have worked; the jury's question suggests that it was in some doubt
whether Busch had been endangered. Perhaps Haines' eccentricities,
and the fact that when he was arrested his weapon did have a bullet
in the chamber, counterbalanced the jury's doubt. But at least
there was no testimony as to whether the round had been chambered
when Busch was present; as to whether the weapon had been pointed
at Busch, there was direct and unequivocal testimony from Meyer
against Haines.
One might ask why, if it cost nothing, counsel did not
also argue in the alternative Haines' current theory that he did
not point the gun at Busch. There is more than one answer that
counsel could reasonably give but two are obvious: to couple a weak
argument with a stronger one may detract from the latter, and to
contradict the direct and clear testimony of an eyewitness who was
best positioned to observe a confrontation might weaken counsel's
own credibility in selling his more plausible version of events.
By contrast, a harmless admission of what the prosecution
seems to have proved anyway can bolster the defense's credibility.
"Candor," said Emily Dickinson, "is the only wile." See Wilbur,
Responses: Prose Pieces, 1953-1976 Expanded Edition 13 (1999).
Certainly astute lawyers have operated on that premise for
generations. Perhaps there was some cost to the concession; but a
reasonable lawyer could easily think that cost was slight or
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nominal and the benefit real. This is just the kind of judgment
that counsel is entitled to make, see Phoenix v. Matesanz, 233 F.3d
77, 81-82 (1st Cir. 2000), and the choice here was reasonable.
Haines' second line of attack on trial counsel is a claim
that the latter failed to adequately advance a theory of self-
defense. Haines argues that his attorney called no witnesses in
support of such a theory; failed to explain, emphasize, or even
mention self-defense in his closing; and did not provide other
evidence sufficient to support the defense. But we cannot say that
a claim of self-defense was not presented at all, or that counsel's
failure to pursue it more explicitly was so serious as to deprive
the defendant of a fair trial.
Defense counsel adduced evidence from both Meyer and
Haines' wife showing that Busch had approached Haines quickly,
yelling at him. Haines' wife also testified that Haines had seemed
fearful when he seized his weapon and that prior incidents in his
campaigning had sharpened his fear. The judge charged on self-
defense. And, in his closing argument, defense counsel argued that
Haines had "protected [him]self by scaring someone" so he should
not be convicted. This is the gist of a self-defense argument on
the facts of this case.
Why defense counsel did not happen to use the phrase
"self-defense" in his closing is unclear; perhaps he deemed it more
effective to stress the no-endangerment claim, providing the self-
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defense theme in a lower key. Although it arguably does not matter
in law that Busch was not in fact a threat but only misperceived as
one, a jury might still feel that seizing a gun simply because
someone is approaching quickly and shouting is not an objectively
reasonable reaction. Anyway, the defense was presented.
Nor did defense counsel fail to provide some vital piece
of available self-defense evidence. Apart from himself, Haines
says that his counsel should have called an FBI agent to testify
about an incident near the White House that Haines thinks
reinforced his entitlement to feel endangered. But Haines' wife
adverted to the incident; the FBI agent's testimony had been
limited in pre-trial proceedings; and there is no indication that
the agent would have added much, if anything, to the self-defense
case.
Haines separately attacks the failure of counsel to argue
on appeal that the district court erred in its jury instructions.
Specifically, Haines attacks the district court's refusal in its
instructions (twice as described above) to limit the prosecution to
proving that Busch was the person endangered. This, says Haines,
was a constructive amendment of the indictment and per se
prejudicial, and so the failure to pursue the issue on appeal in
state court was incompetent.
On this appeal, Haines makes no effort to show how New
Hampshire law addresses the subject of constructive amendment, and
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that law may well be unfriendly to a per se prejudice claim in this
context. See State v. Elliott, 585 A.2d 304, 307 (N.H. 1990); see
also 4 LaFave, Israel & King, Criminal Procedure § 19.5(b) at 792
(2d ed. 1999). Instead, Haines' brief assumes that the
Constitution imposes on state prosecutions some version of the law
prevailing in federal prosecutions--that a defendant cannot be
convicted of a crime other than the one with which he is charged,
even if the evidence shows that he is guilty of this other crime.4
Just how far this federal doctrine carries over to state
prosecutions--where fair notice is required but not an indictment,
see Apprendi v. New Jersey, 530 U.S. 466, 499 (2000)--has seemingly
divided the circuits. Some federal case law assumes that it does,
e.g., Gray v. Raines, 662 F.2d 569, 572 (9th Cir. 1981), some
otherwise, e.g., Wilson v. Lindler, 995 F.2d 1256, 1264 (4th Cir.)
(Widener, J., dissenting), adopted by 8 F.3d 173, 175 (4th Cir.
1993) (en banc), cert. denied, 510 U.S. 1131 (1994); there is
little full-scale analysis, and this circuit has no clear-cut
4
The case law, stemming from Stirone v. United States, 361
U.S. 212 (1960), has led a number of circuits, including ours, to
adopt such a per se theory for certain deviations between what is
charged in the indictment and what is proved at trial. See, e.g.,
United States v. Fisher, 3 F.3d 456, 462-63 (1st Cir. 1993).
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position.5 What is more, just when a per se rule applies even in
federal prosecutions is a matter of debate and some confusion.
The rub is in the definitions. The titular "crime" for
which a defendant is convicted must be the one for which he was
indicted, but that is true in Haines' case. The precedents in
federal case law also require a reasonable congruence between the
facts charged in the indictment and those proved at trial, see 33
Geo. L.J. Ann. Rev. Crim. Proc. 270-73 (2004); but while a
constructive amendment is not allowed, a "variance" between the
facts charged and the facts proved is permissible, provided it is
not prejudicial.
Save at either end of the spectrum, it is far from clear
what distinguishes a permissible variance (as between facts charged
and facts proved) from an impermissible constructive amendment.
See United States v. Weiss, 752 F.2d 777, 787 (2d Cir.)
("considerable confusion"), cert. denied, 474 U.S. 944 (1985);
Hunter v. New Mexico, 916 F.2d 595, 599 (10th Cir. 1990) ("shadowy
at best"), cert. denied, 500 U.S. 909 (1991). Some courts,
including our own, have suggested that at least where the issue is
confined to factual deviations, the question turns importantly on
5
Our decision in United States v. Kelly, 722 F.2d 873, 876
(1st Cir. 1983), cert. denied, 465 U.S. 1070 (1984), could be read
as rejecting a per se prejudice rule in state prosecutions but only
by inference from some of its reasoning. See also Tarpley v.
Estelle, 703 F.2d 157, 161 n.6 (5th Cir.) (noting but not
answering the question), cert. denied, 464 U.S. 1002 (1983); cf.
Fawcett v. Bablitch, 962 F.2d 617, 618 (7th Cir. 1992).
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whether the defendant has been prejudicially misled. See United
States v. Santa-Manzano, 842 F.2d 1, 3 (1st Cir. 1988); see also
Lucas v. O'Dea, 179 F.3d 412, 417 (6th Cir. 1999); Hunter, 916 F.2d
at 599.
Finally, even if a federal per se test applied to New
Hampshire prosecutions, it is debatable whether Haines' indictment
excluded the possibility of proving that Haines had endangered
bystanders. The indictment said that Haines had recklessly placed
"another" in danger; the indictment did not in specific terms rule
out proof that persons other than Busch had also been endangered.
On some facts, a constructive amendment label is obvious; on
others, such as the one before us, much less so.
Under these circumstances, we are unwilling to say either
that counsel was incompetent in not making the constructive
amendment argument in state court or that he would have prevailed
if it had been made. It is not so much a matter of counsel
exercising a reasonable choice among various arguments; rather, we
do not credit the idea that competent counsel should inevitably
have conceived of and credited a line of argument so abstruse,
debatable and contingent. The standard for competence cannot be
Herbert Wechsler.
Perhaps Haines' appellate counsel could have made a
different claim, based not on constructive amendment but on the
more straightforward argument that he was prejudicially deprived of
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fair notice of the charges against him by the combined effect of
the vague indictment, the prosecutor's opening argument and the
trial judge's initial caution to the prosecutor when the latter
began to stray toward an alternative theory of endangerment. If
there had been proof of actual prejudice from this change of
signals, perhaps it would have been incompetent not to press the
claim on the state appeal.
But a due process argument based on lack of notice
assumes a showing that trial counsel's presentation would have been
different had the new theory emerged at an earlier stage. There is
no basis for thinking that the prosecutor or the trial judge
deliberately misled trial counsel. There is no indication that
defense counsel had or could have procured any evidence to rebut
the showing that there were others in the vicinity who might have
been endangered. So there is no reason to think that the outcome
on the state appeal would have been any different.
Haines unquestionably had bad luck. His case was the
result of two different mistakes--Busch's misidentification of
Haines and Haines' misperception of the threat Busch posed--and
some juries would likely have acquitted. The real villain, one
might conclude, was the mandatory sentencing law that punished a
truant act as a major felony. But we cannot say that the
representation Haines received fell below an objective standard of
reasonableness, and that is the only issue before us.
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Affirmed.
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