
USCA1 Opinion

	




                                      UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2184                                  ROBERT C. HURLBURT,                                Plaintiff, Appellant,                                          v.                            MICHAEL J. CUNNINGHAM, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                [Hon. Martin F. Loughlin, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Torruella and Cyr, Circuit Judges.                                             ______________                                 ____________________            Robert C. Hurlburt on brief pro se.            __________________            Jeffrey R. Howard, Attorney  General, and Amy Vorenberg, Assistant            _________________                         _____________        Attorney General, on brief for appellees.                                 ____________________                                     May 26, 1993                                 ____________________                      Per Curiam.   After a jury trial in a New Hampshire                      __________            superior court,  Robert Hurlburt  was  convicted of  being  a            felon  in possession of a firearm  in violation of state law,            and sentenced to an extended term of 7 1/2 to 15 years by the            trial judge (Nadeau,  J.).  The  New Hampshire Supreme  Court            reversed his  conviction because of an  erroneous evidentiary            ruling.  See State  v. Hurlburt, 132 N.H. 674, 569 A.2d 1306,                     _________     ________            1306-07  (1990).   A jury  trial was  had before  a different            state court  judge (Temple,  J.).   The jury  again convicted            Hurlburt, but this time Judge Temple imposed an extended term            of 10 to 30 years.  The New Hampshire Supreme Court affirmed.            See State  v. Hurlburt, 135  N.H. 143,  603 A.2d 493  (1991),            _________     ________            cert.  denied,  112  S.  Ct.  1770  (1992).    Hurlburt  then            _____________            petitioned  for a  writ of  habeas corpus  under 28  U.S.C.              2254, which was denied.  Hurlburt v. Cunningham, 802 F. Supp.                                     ________    __________            585 (D.N.H. 1992).  We affirm.                       We need  discuss here only one of  the issues which            Hurlburt  raises  in  his  appeal.1     He  claims  that  his                                            ____________________            1.  The  remaining  claims are  meritless.    First, Hurlburt            argues that  he did not  voluntarily and knowingly  waive his            Miranda rights during a post-arrest interview.  He bases this            _______            claim  primarily on an error in the transcript from his first            trial.  This matter was fully explored and correctly resolved            at a suppression hearing before his second trial.  Second, he            claims  that his  failure  to challenge  the state's  alleged            failure  to  prove  that   he  had  been  incarcerated  twice            previously on sentences of one year  or more so as to subject            him to enhanced sentencing under state  law should be excused            because of ineffective assistance of counsel.  The sentencing            transcript  shows that  Hurlburt  himself made  this  precise            argument  to the court at  sentencing, and so  his failure to                                         -2-            increased  sentence  after retrial  is  unlawful  under North                                                                    _____            Carolina  v. Pearce,  395 U.S.  711 (1969).   In  Pearce, the            ________     ______                               ______            Supreme Court found that imposing an increased sentence after            retrial on a defendant who had successfully appealed a  first            conviction would violate  due process of law  if the increase            were motivated by vindictiveness.  It stated:                      Due   process   of   law,   then,   requires   that                      vindictiveness  against  a  defendant   for  having                      successfully  attacked  his  first conviction  must                      play no part  in the sentence  he receives after  a                      new trial. . . . In order to  assure the absence of                      such a motivation, we  have concluded that whenever                      a  judge  imposes a  more  severe  sentence upon  a                      defendant after  a new  trial, the reasons  for his                      doing  so must affirmatively appear.  Those reasons                      must be based upon objective information concerning                      identifiable conduct on the  part of the  defendant                      occurring after the time of the original sentencing                      proceeding.   And the  factual data upon  which the                      increased sentence  is based  must be made  part of                      the  record, so that  the constitutional legitimacy                      of the increased sentence  may be fully reviewed on                      appeal.            Id.  at   725-26.     Essentially,   Pearce   established   a            ___                                  ______            "presumption of vindictiveness, which may be overcome only by            objective  information in the record justifying the increased            sentence."    United States  v.  Goodwin, 457  U.S.  368, 374                          _____________      _______            (1982).                                                ____________________            raise it in his direct appeal, at which he submitted a pro se                                                                   ___ __            brief supplementing that of  his appointed counsel, must have            been intentional and is  thus not attributable to ineffective            assistance of counsel.  Third, he  suggests that he exhausted            his  state remedies on the issue whether the audiotape of the            first trial should  have been enhanced, but the  record shows            that he failed to raise this issue in his direct appeal.                                         -3-                      The   district  court   found   that   the   Pearce                                                                   ______            presumption applied even though a different judge had imposed            the increased sentence.2   But it concluded  that the judge's            statement of reasons was sufficient to rebut the presumption.            802  F. Supp.  at 594.   Although  the state appears  to have            argued below that the presumption should not apply, on appeal                                            ____________________            2.  Although  Pearce involved  a  case in  which a  different                          ______            judge imposed the harsher sentence after retrial, the Supreme            Court has  indicated that Pearce itself is  to be interpreted                                      ______            as establishing a presumption of vindictiveness only in cases            involving a single  sentencer.  See Texas  v. McCullough, 475                                            _________     __________            U.S.  134,  140  n.3 (1986).    Our  research indicates  that            decisions by  the circuit courts of  appeals after McCullough                                                               __________            have  uniformly held  that  the Pearce  presumption does  not                                            ______            apply to the two-sentencer situation.  See Rock v. Zimmerman,                                                   ___ ____    _________            959  F.2d 1237  (3d  Cir.), cert.  denied,  112 S.  Ct.  3036                                        _____________            (1992); United States v. Perez, 904 F.2d 142 (2d Cir.), cert.                    _____________    _____                          _____            denied, 498 U.S.  905 (1990),  and cert. denied,  111 S.  Ct.            ______                             ____________            1085 (1991);  Gauntlett v.  Kelley, 849  F.2d  213 (6th  Cir.                          _________     ______            1988).  Some earlier  cases, however, applied the presumption            where a different judge had imposed the more severe sentence.            See, e.g., United States  v. Whitley, 734 F.2d 994  (4th Cir.            __________ _____________     _______            1984),  cert. denied, 474  U.S. 873 (1985);  United States v.                    ____________                         _____________            Floyd, 519 F.2d  1031 (5th  Cir. 1975); but  see Holloway  v.            _____                                   ________ ________            Lockhart, 754 F.2d 252 (8th Cir.), cert. denied, 474 U.S. 836            ________                           ____________            (1985).  In Mele v. Fitchburg District Court, 884 F.2d 5 (1st                        ____    ________________________            Cir. 1989),  this court held that the  Pearce presumption did                                                   ______            not  apply where a judge imposed a more severe sentence after            a jury trial than had been imposed by a different judge after            a bench trial.  We held that the bench trial  in the two-tier            Massachusetts system was analogous to a guilty plea, so that,            under  Alabama v. Smith, 490 U.S. 794 (1989), the presumption                   _______    _____            did not apply.   We  also commented  that "in  this case  two            different   judges  imposed   sentence,  showing   even  less            likelihood of  possible vindictiveness  than in  Smith, where                                                             _____            the same judge, after being  found to be in error  on appeal,            was  responsible for resentencing."  Id. at 10.  We expressly                                                 ___            stated, however, that  we were not deciding  that "whenever a                                                               ________            second judge  is  responsible for  resentencing there  should            arise no  presumption of vindictiveness.   We are  relying on            this  factor in light of the particular circumstances of this            case."  Id. n.4 (emphasis in original).                       ___                                         -4-            it accepts  the district court's reasoning  as "legally sound            and well supported" and urges this court instead to affirm on            the ground  that the  presumption has  been rebutted.   Under            these circumstances, and  because we conclude  that objective            information  in  the  record  here  would  rebut  any  Pearce                                                                   ______            presumption applied, we do not decide whether the presumption            should  apply whenever  a different  judge imposes  a harsher            sentence after  retrial,  but only  assume  for the  sake  of            argument that it does.                        In  imposing  a  sentence  of  10 to  30  years  on            Hurlburt after his retrial, Judge Temple stated:                      Mr. Hurlburt, in view of  your record that has been                      presented to me here today and by virtue of the two                      reports  from  the Department  of  Corrections, and                      what I observed and listened to during the trial as                      well, I think  if there  ever was a  case that  the                      maximum enhanced sentence would apply, this is it.                      Accordingly, the sentence in  this case is that you                      are sentenced to the New Hampshire State Prison for                      an extended term pursuant  to Chapter 651:6 for not                      more than 30 years, nor less than 10 years.            In its decision, the district court focused on Judge Temple's            reference to  the two presentence reports,  which contained a            copy of  Hurlburt's conviction for possessing  the implements            of escape.   The conviction had been  obtained after Hurlburt            was  originally sentenced  by  Judge Nadeau,  but before  his            sentencing by Judge Temple.   Acknowledging that Judge Temple            did not specifically refer to the intervening conviction, the            district   court  found   nonetheless  that   Judge  Temple's                                         -5-            reference  to  the  reports   met  the  requirement  that  an            increased  sentence be based  on "objective  information that            affirmatively appears  of record," that there  was "no reason            to believe  that the  conviction  was not  factored into  the            sentencing  decision,"   and   that  therefore   the   Pearce                                                                   ______            presumption had been  rebutted.   802 F.  Supp. at  595.   In            holding that the presumption  had been rebutted, the district            court relied on Wasman v. United States, 468 U.S. 559, 569-70                            ______    _____________            (1984), which had held that a sentencing judge could consider            a criminal conviction obtained between an original sentencing            and  a  sentencing after  retrial  in  imposing an  increased            sentence and that such  consideration would "amply" rebut any            presumption of vindictiveness.                        Hurlburt argues that Judge Temple's "bare allusion"            to the  presentence reports does not  satisfy the requirement            that  he affirmatively state his  reasons for imposing a more            severe  penalty than Judge  Nadeau and that  those reasons be            based  on  objective   information  concerning   identifiable            conduct by Hurlburt.  Clearly, it  would have been preferable            for Judge Temple to have mentioned the intervening conviction            explicitly  if he had relied on it to justify the sentence he            imposed,  especially  if  it  were   the  sole  justification            proffered  for the  increased  sentence.   Here, however,  we            believe that  his  lack  of  precision does  not  render  his            statement of reasons inadequate under Pearce.  At the outset,                                                  ______                                         -6-            we note that, unlike Pearce, this is not a case  in which the                                 ______            state has offered no reasons at all for imposing an increased            sentence.   See Wasman, 468  U.S. at 565  (the presumption of                        __________            vindictiveness was unrebutted in Pearce because the state had                                             ______            offered no reason at all  to explain the increased sentence).            Judge Temple  did give reasons  for imposing the  sentence he            did.    Moreover, since  Judge  Temple was  not  the original            sentencer, he cannot be  expected to have explained precisely            why  the sentence he imposed was greater than the one imposed            by Judge Nadeau -- to do so, he would have to have been privy            to  Judge Nadeau's thoughts at the time he imposed the lesser            sentence.3   Finally,  we  think that  focusing  only on  the                                            ____________________            3.  Our point is illustrated  by reference to the explanation            given for an increased sentence by the trial judge in Wasman.                                                                  ______            There,  one  judge  had  imposed both  of  the  sentences  in            question, and had explained his decision  to impose a harsher            sentence  after  retrial  as  follows:    "[W]hen  I  imposed            sentence   the   first   time,   the   only   conviction   on            [petitioner's] record in this Court's eyes, . . . was failure            to file income tax returns, nothing else.  I did not consider            then and  I  don't in  other  cases either,  pending  matters            because that would result  in a pyramiding of sentences.   At            this time, he  comes before  me with two  convictions."   468            U.S. at  562.  Since there  is nothing in the  record to show            that  Judge  Temple could  have  known  what motivated  Judge            Nadeau  to impose the sentence  he did, it  is unrealistic to            expect him to  compare his and Judge Nadeau's  motivations as            precisely  as did  the  judge in  Wasman  to explain  why  he                                              ______            imposed  a  lengthier  sentence   than  Judge  Nadeau.    The            difficulty  which,  we  imagine,  a  second  sentencer  would            invariably have in explaining  his motivation relative to the            motivation of the original  sentencer suggests one reason why            the Pearce presumption may ultimately be confined to the one-                ______            sentencer  situation.  The root  of this problem  in the two-            sentencer  context is,  of  course, the  assumption that  the            second,  harsher sentence  represents  an "increase"  in  the            first sentence which  must be explained if the presumption is                                         -7-            issue  of  the  intervening   conviction  is  too  narrow  an            approach.   Judge Temple's statement of  reasons was broader.            Altogether, he  gave three reasons for  imposing the sentence            he did:  (1)  Hurlburt's "record" as "presented to  [him]" at            the sentencing hearing; (2)  the two presentence reports; and            (3) "what I observed and listened to during the trial."                        Our  review of  the  sentencing  transcript,  which            amplifies  Judge Temple's  abbreviated statement  of reasons,            convinces us  that the  district court's conclusion  that the            Pearce  presumption has  been rebutted  was correct.   First,            ______            Judge  Temple  stated  that  he relied  on  both  presentence            reports  in  imposing  sentence  on  Hurlburt.    During  the            sentencing hearing, Judge Temple also stated that he had read            both  of  the  reports.    The  updated  report  contains  an            assessment  of Hurlburt's  prospects  for rehabilitation,  an            issue about which the first report (the only report available            to  Judge Nadeau) is silent.  Based on an interview conducted            after the second trial,  the updated report recites instances            in which  Hurlburt gave  the probation officer  inaccurate or            misleading information.   Thus, the updated  report indicated            that,  even   after  his  second  conviction,   Hurlburt  was                                            ____________________            to be rebutted, whereas in reality the differing sentence may            simply represent the different sentencing perspective which a            different  judge  brings  to   bear  on  a  given  sentencing            situation.  Compare  Texas v. McCullough,  475 U.S. 134,  140                        ______________    __________            (1986)  (where   different  sentencers  impose   the  varying            sentences, a sentence "increase" cannot truly be said to have            taken place).                                              -8-            continuing  the pattern  of deceptive  behavior noted  in the            first report prepared after his first conviction.  (The first            report had  concluded that Hurlburt  was a "con-man  only too            willing  to deceive  others  through  lying  and his  use  of            aliases . .  . .")  The second report concludes that Hurlburt            has "no redeeming qualities  that would make him an  asset to            remain   in   the   community,"  that   his   prospects   for            rehabilitation  were  "dismal,"  and  that   Hurlburt  should            participate  in  "intense  psychological   counseling"  while            incarcerated.  As the  Supreme Court has made  clear, conduct            which  sheds  light on  a  defendant's  "moral character  and            suitability  for rehabilitation"  may  be used  to rebut  the            Pearce presumption.  See Alabama v. Smith, 490 U.S. 794, 801-            ______               ___________    _____            02 (1989).                        Furthermore,  the  presentence  reports do  contain            information  about Hurlburt's  conviction for  possessing the            implements  of  escape which  was  obtained  after his  first            sentencing.   The  first report  makes specific  reference to            Hurlburt's pending indictment on  that charge, and a  copy of            his ensuing conviction  is attached  to the report.   At  the            sentencing hearing, Judge Temple not  only stated that he had            read the reports,  but he also  evidenced his awareness  that            Hurlburt's convictions  were  attached to  the first  report,            suggesting that he had  in fact reviewed them.   In addition,            the   implements-of-escape    conviction   was   specifically                                         -9-            mentioned  when  the question  of  crediting  the time  which            Hurlburt had already  served arose at sentencing.   The state            explained  that Hurlburt  had  received credit  at his  first            sentencing for the  post-arrest time he  had served, that  it            assumed that he  would be entitled to  credit for all  of the            time served on  "this charge",  and that it  did not  believe            that any time served for "[t]he other charge for which he was            convicted  following this, and on which was imposed a one and            a half to three years  consecutive [sentence] . . . has  been            credited . . .  [b]ut it should only be  credited towards one            of  the offenses."4   In response, Judge  Temple evidenced no            confusion as to which "other" conviction the state meant, but            asked only whether  the exact  days to be  credited had  been            calculated.  After Hurlburt's counsel  gave the figure of 830            days, Judge Temple took a brief recess.  When he returned, he            announced  his  reasons  for  imposing  the maximum  possible            sentence, which are quoted above, and immediately  thereafter            stated  that Hurlburt  would be allowed  pretrial confinement            credit  of  830 days.    We conclude,  therefore,  that Judge            Temple, having  read the presentence reports  and having been            reminded of the intervening  conviction immediately before he                                            ____________________            4.  Since  the only intervening  conviction evidenced  by the            record for  which a 1 1/2 to  3 year consecutive sentence was            imposed was Hurlburt's  implements-of-escape conviction,  the            state could only have been referring to that conviction.                                           -10-            imposed sentence, could well  have taken that conviction into            account in imposing the sentence he did.                        In  any event,  Judge  Temple made  clear that  the            sentence  he imposed was also  based on the  "record that has            been presented to me here today . . . and what I observed and            listened to during the trial as well .  . . ."  Arguably, the            word "record" encompasses more  than just Hurlburt's criminal            record,  which  was described  in  detail  at the  sentencing            hearing,  but includes  as  well any  pattern  of conduct  by            Hurlburt  which  came  to  Judge  Temple's  attention.5    At            sentencing,  the  state  alluded  to   misrepresentations  by            Hurlburt  which  it  had  "already recounted  to  the  court"            (presumably at  some other time), and  to Hurlburt's apparent            practice,  in  connection  with  both the  first  and  second            trials, of making claims which he alleged he could support by            affidavit,  but never did.  The state also reminded the court            of  threatening letters which  Hurlburt had written  to a key            prosecution witness,  as to which there had been testimony at            the second trial.  It suggested that Hurlburt had lied at the            sentencing hearing itself  when he told Judge Temple  that he            had not made  the misleading statements attributed  to him in                                            ____________________            5.  The criminal record  discussed at the sentencing  hearing            consisted of  Hurlburt's pre-1988 record, and  we assume that            the same record was presented to Judge Nadeau.  To the extent            that  we  need to  inquire into  what  was different  at this            sentencing  which  would  explain  the   different  sentence,            therefore, reliance on that record is not sufficient.                                           -11-            the updated presentence  report, arguing that the  statements            in the report could  only have come from Hurlburt  and citing            as corroboration in one  instance statements made by Hurlburt            during  a deposition  held  before  the  second trial.6    In            connection  with  its  review   of  the  cited  instances  of            deceptive  or  obstructive  conduct by  Hurlburt,  the  state            agreed   with   the  probation   officer's   assessment  that            "everything   points   to   absolutely   no  hope   for   the            rehabilitation  of  this man.   There  is  a need  to protect            society  from this person, and the need to punish him for his            conduct  and incarcerate him for  a period of  time that will            give  full consideration  and  full weight  to his  extensive            criminal involvement and his  extensive efforts to perpetrate            a fraud on this Court at every opportunity."  Thus, the state            argued at length  and vigorously  that Hurlburt's  persistent            deceptive  and obstructive  conduct,  some of  which came  to            light  in the  presentence reports  and at  trial, had  to be            taken  into  account in  sentencing.    Given Judge  Temple's            statement  that  he  had  based Hurlburt's  sentence  on  the            presentence  reports, on the  record presented to  him at the            sentencing  hearing and on what he saw and heard at trial, we                                            ____________________            6.  The county attorney representing the state also described            certain allegations  which Hurlburt was alleged  to have made            against  her  personally  and against  the  county attorney's            office,  but Judge Temple stated that he would not take those            allegations, which were not otherwise detailed in the record,            into consideration in sentencing  Hurlburt.  For that reason,            they are also irrelevant to this discussion.                                         -12-            think it reasonable to  conclude that Judge Temple considered            that conduct in imposing the sentence he did on Hurlburt.                        Finally,  we think  it  significant that  the state            objected   vigorously   to    the   probation    department's            recommendation  that Hurlburt  be sentenced  to 7  1/2 to  15            years,  which was the sentence  imposed by Judge  Nadeau.  It            argued that  the probation  officer, who had  recommended the            "maximum  incarceration  term", had  not understood  that the            state enhanced sentencing statute  permitted a term of 10  to            30 years.  The state told Judge Temple that it had asked that            that   sentence  be  imposed  after  the  first  trial.    It            acknowledged that Judge Nadeau  had only imposed 7 1/2  to 15            years, but argued for the enhanced sentence because "that  is            the sentence  that . . .  should be imposed" under  the state            enhanced sentencing statute.  When Hurlburt stated that Judge            Temple could only  impose the sentence given by Judge Nadeau,            Judge Temple asked whether Hurlburt wanted "to be heard as to            what the sentence should be[.]"  Hurlburt's only response was            that "I feel that the Court has already made up its mind. . .            .  I would not  even at this juncture  venture to request any            type of sentence.  I would rely upon the sound discretion and            intelligence  of  the Court."    Essentially,  therefore, the            state argued  that it had  always believed that  imposing the            enhanced sentence would be  the correct sentencing result and            that Judge Nadeau's sentence had not accounted adequately for                                         -13-            Hurlburt's  history  and  character,  and  Hurlburt  made  no            counterargument.    In  a  somewhat  different   context,  we            indicated that imposing a sentence after successful appeal of            a conviction  for the  express purpose of  bringing "original            sentencing  intentions  to  fruition" was  permissible.   See                                                                      ___            United States v. Pimienta-Redondo, 874 F.2d 9, 13 (1st Cir.),            _____________    ________________            cert. denied,  493 U.S.  890 (1989)  (declining to apply  the            ____________            Pearce  presumption  where the  district court  reimposed the            ______            original sentence after remand  despite reversal on one count            by  the court of appeals).   To the  extent that Judge Temple            may be inferred to have believed that the state was right and            that  Judge   Nadeau's  sentence  had  been   too  low,  that            motivation  would   be  permissible   and  would   provide  a            nonvindictive reason for imposing the increased sentence.                      As this  discussion shows, the  presentence reports            and  the sentencing transcript contain "objective information            concerning  identifiable  conduct"  of Hurlburt's  consistent            with Judge  Temple's stated  reasons which would  support the            increased   sentence  Hurlburt  received.    Accordingly,  we            conclude that  Judge Temple's stated reasons  for imposing an            extended term of  10 to 30 years  were "on-the-record, wholly            logical,  nonvindictive reason[s]  for  the  sentence"  which            rebut the  Pearce presumption.   See McCullough, 475  U.S. at                       ______                ______________            140.                                         -14-                      Accordingly, the judgment of the  district court is            affirmed.            ________                                         -15-
