
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                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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-
