                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-
