Not For Publication in West's Federal Reporter Citation Limited Pursu ant to 1st Cir. Loc. R. 32. 3 

# United Stat es Court of Appeals

For the First C ircuit

No. 03-2377 TIMOTHY DUPONT, Petitioner, Appellant,

v. JANE COPLAN, Warden, New Hampshire State Prison,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Steven J. McAuliffe, U.S. District Judge ]

Before Boudin, Chief Judge , Torruella and Lynch, Circuit Judges .

Timothy Dupont on Motion for Certificate of Appealability.

July 9, 2004-2-

Per Curiam . Petitioner Timothy Dupont seeks a certif icate of appeal ability ("COA") to appeal from the denial of his § 2254 petition. In his pro se filings in this court, petitioner raise s multiple issues. Only the two issues that he raisedin his § 2254 petition in district court are pr operly b efore us. See Davidv. UnitedS tates , 134 F.3d 470, 474 (1 st Cir. 1998) ("It is well establishedthat a party may not unveil an argument in the court of appeals that he did not seasonably raise in the district court"). An a pplicatio n for a writ of habeas corpus on behalf of a person in custodypursuant to a judgment of a state court shall be entertained"only on the ground that he is in custody in violation of the Constitution or laws or trea ties of the United States." 28 U.S. C. § 2254(a). Where, as in this case, the claims wer e adjudicatedon the merits in state court, relief may be granted only i f the state court's adjudication of the claim resul ted in a de cision that was "contrary to or involved an unreasonable applic ation of, clearly established Federal law, as determined by the Supreme Court o f the United States;" or that was "based on an unreasonable determination of the facts in light of the evid ence presented in the State court proceeding." 28 U.S.C. § 2254(d). ACOA to appeal fr om the denial of such a petition may issue "onlyif the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Where, as here, the "district court has rejected the constitutional claims on the-3-

merits, the showing required to satisfy § 2253 (c ) is straightforward: The petitioner must demonstrate t hat reasonable jurists would fin d the district court's assessment of the const itutional claims debatable or wrong." Slackv. McDaniel , 52 9 U.S. 473, 484 (2000). Petitioner has failed to make the requisite showing with regardto either issue presented to the district court. I. Sufficiency of the Indictments A. ParticularityIn his memo in support of his § 2254 motion, Dupont argued that the indict ments were not sufficiently specific to al low defendant to prepare his defense because "[t]he onl y distinguishing facts among the sets of indictments are the dates." The Sixth Amendment "requires that the defendant be informedof the nature and cause of the accusation." United States v. Calderon , 77 F.3d6, 9 (1 st Cir. 1996) (citation omitted). "[I]n gen era l, an indictment is sufficiently particular if it elucidates the elements of the crime, enlightens a defendant as to the nature of the charge against which sh e must d efend, and enables her to plead double jeopardyin bar of futur e prosecutions for the same offense. See Hamling v. United States , 418 U.S. 87 (1974)." United States v . Sepulveda , 15 F.3d 1161, 1192 (1 st Cir. 1993). The indictments charged Dupont wit h six ty-nine counts of felonious sexual assault, in violation o f RSA 63 2-A:3, III. The elements of that offense are: 1) engaging in sexual contact, 2) with

a person other than the actor's legal spouse, 3) when the person is-4-

under 13 years of age. Each count charged a specific sexual contact between Dupont and his ste p dau ghter, and the month and year when such contact occurred. The New Hampshire Sup re me Court "agree[d] with the trial court that the defendant failed to demonstrate that he was prejudiced in his ability to prepare a defe nse." Stat e v. Dupont , 149 N.H. 70, 77 (2003). The district court concluded that the state court's holding in that regardwas not contrary to nor an unreasonable application of cle arly established federal law, as determinedby the United Stat es Supreme Court. 8/27/03 Order, pp. 11-12. Dupont has failed to dem onstrate that reasonable jurists would find that assessment debatable or wrong. B. Duplicity "Du plicityis the joining in a single count of two o r more distinct and separate offenses." United States v. Martinez Can as , 59 5 F.2d 73, 78 (1 st Cir. 1979). "[T]he prohibition against duplicitous i ndictments arises primari lyout of a concern that the jury may find a defendant guilty on a count without having reached a unanimous verdict on the commission of any particular offense." United St ates v. Valerio , 48 F.3d 58, 63 (1 st Cir. 1995). United States v. Verrecchia , 196 F.3d 294, 297 (1 st Cir. 1999). In his § 2254 memora ndum, Du pont argued that "the manner in which the indictments read had the effect of being duplications and thus tainted the v erdict of the jury," in violation of his right against Double J eopar dy. This argument was made by Dupont in his appeal to the Supreme Court of New Hampshire, where he contend e d that "notwithstanding the separate indictments, they are generic in-5-

nature and permit the juror confusion enunciated in [ State v.] Patch [, 135 N.H. 127 (1991)]." However, the New Hampshire Supreme Court heldthat the potential for jury confusion recognized in Patch "did not exist in this case because the State did exactly what Pat ch requires; it 'brought several indictments, each alleging a specific incident, and consolidatedthem for trial.' Patch , 135 N.H. at 129. The allegation of a single incident in each of a number of specific months both ensured unanimity and precluded any dang er of do uble jeopardy." Dupont , 149 N.H. at 77. The district court held that Dupont had failed to demonstrate that the state court's resolution of that issue was contrary to or involvedan unreasonable application of federal law. Dupont has not shown that reasonable jurists could find that assessment debatable

or wrong with respect to his c laim that the indictment was unconstitutionally duplicitous. II. Tape-Recorded Confession In his second Amended Petition, Dupont clarifi edthat he was seeking § 2254 relief on the ground that the New Hampshire Supreme Court had misapplied the federal "harmless error" rule set forth in Rose v. Clark , 4 78 U.S. 570 (1986), to his claim that the trial court had erred in admitting his tape-recorded confession. However,

a COA may not issue unless the petitione r has made a substantial showing of the denial of a constitutional right. As the distri c t court stated, "[t]here is no requirement in federal law that a taped-6-

confess io n be 'complete' before it can be admitted into evidence, andcertainly the federal constitution imposes no such requirement." 8/27/03 Order, p. 9. Therefore, the second Amended § 2254 Petition failedto allege, much l ess make a substantial showing of, a constitutional violation. The district court noted that Dupont's original § 2254 petition "hints at a claim that Dupont's due process rights were violated by the admission into evidence of his taped confession." Id. , p. 9 n.1. Finding that claim to be unexhausted but "wholly without merit," the district court denied it. Id. "An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2). In his § 225 4 memora ndum Dupont argued that his due process rights were violatedby"the failure of the government to record and introduce th e entire interrogation of the defendant." § 2254 Memorandum, p. 7. In support of that argument he relies upon Crane

v. Kentucky , 476 U.S. 683 (1986). That case is inapposite however. Dupont has not alleged that he sought and the trial court prevented himfrom introducing evidence about the circumstances in which his confes sion was given. Instead, he argued that the admission i nt o evidence of the selective recording of his interrogation misled the juryby keeping from them the "context of the 'confession' and the coercive nature of the interrogation as alleged by the defendant."-7-

The police officers' failure to record the en tire i nterrogation arguablycould be characterized as a failure to preserve evidence. Such a failure violates a defendant's due process rights onlyif the government: "(1) acted in ba d faith when it [failed to preserve] evidence, which (2) possessed an apparent exculpat or y value and, which (3) is to some extent irreplaceable." United States v. Femia , 9 F.3d 990, 993-94 (1 st Cir. 1993). It appears that Dupont could not sati s fy the second requirement. The state court foundthat "[t]he defendant's taped confession was merely cumulative of [other] evidence," that there

was "no evidence that the defendant made exculpatoryor otherwise inconsistent statements during the unrecorded portion of his statements to the police," and that "the victim's testimony that the defen dan t had committed all of the acts charged was essentiallyuncontradicted." Dup ont , 149 N.H. at 76. The New Hampshire Supreme Court concluded that "it is clear beyond a reasonable doubt that the defendant would have been convicted even if the recording had been excluded." Id. Dupont has not challenged those findings. Under these circumstances, reasonable jurists couldnot find debatable or wrong the district court's assessment that Dupont's due process claim was meritless. Dupont's requests for a COA and for an evidentiary hearing

are denied . The appeal is terminated .