Not For Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

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
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Per Curiam. Petitioner Timothy Dupont seeks a certificate of

appealability ("COA") to appeal from the denial of his § 2254

petition. In his pro se filings in this court, petitioner raises

multiple issues. Only the two issues that he raised in his § 2254

petition in district court are properly before us. See David v.

United States, 134 F.3d 470, 474 (1st Cir. 1998) ("It is well

established that a party may not unveil an argument in the court of

appeals that he did not seasonably raise in the district court").

An application for a writ of habeas corpus on behalf of a

person in custody pursuant 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 treaties of the United States." 28

U.S.C. § 2254(a). Where, as in this case, the claims were

adjudicated on the merits in state court, relief may be granted only

if the state court's adjudication of the claim resulted in a

decision that was "contrary to or involved an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States;" or that was "based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding." 28 U.S.C. § 2254(d).

A COA to appeal from the denial of such a petition may issue

"only if 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
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merits, the showing required to satisfy § 2253(c) is

straightforward: The petitioner must demonstrate that reasonable

jurists would find the district court's assessment of the

constitutional claims debatable or wrong." Slack v. McDaniel, 529

U.S. 473, 484 (2000). Petitioner has failed to make the requisite

showing with regard to either issue presented to the district court.

I. Sufficiency of the Indictments

A. Particularity In his memo in support of his § 2254 motion,

Dupont argued that the indictments were not sufficiently specific

to allow defendant to prepare his defense because "[t]he only

distinguishing facts among the sets of indictments are the dates."

 The Sixth Amendment "requires that the defendant be informed of the

nature and cause of the accusation." United States v. Calderon, 77

F.3d 6, 9 (1st Cir. 1996) (citation omitted). "[I]n general, 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 she must defend, and enables her to plead double

jeopardy in bar of future prosecutions for the same offense. See

Hamling v. United States, 418 U.S. 87 (1974)." United States v.

Sepulveda, 15 F.3d 1161, 1192 (1st Cir. 1993).

The indictments charged Dupont with sixty-nine counts of

felonious sexual assault, in violation of RSA 632-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
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under 13 years of age. Each count charged a specific sexual contact

between Dupont and his step daughter, and the month and year when

such contact occurred. The New Hampshire Supreme Court "agree[d]

with the trial court that the defendant failed to demonstrate that

he was prejudiced in his ability to prepare a defense." State v.

Dupont, 149 N.H. 70, 77 (2003). The district court concluded that

the state court's holding in that regard was not contrary to nor an

unreasonable application of clearly established federal law, as

determined by the United States Supreme Court. 8/27/03 Order, pp.

11-12. Dupont has failed to demonstrate that reasonable jurists

would find that assessment debatable or wrong.

B. Duplicity 

"Duplicity is the joining in a single count of two or

more distinct and separate offenses." United States v.

Martinez Canas, 595 F.2d 73, 78 (1st Cir. 1979). "[T]he

prohibition against duplicitous indictments arises

primarily out 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 States v. Valerio, 48 F.3d 58, 63 (1st

Cir. 1995).

United States v. Verrecchia, 196 F.3d 294, 297 (1st Cir. 1999). 

In his § 2254 memorandum, Dupont argued that "the manner in

which the indictments read had the effect of being duplications and

thus tainted the verdict of the jury," in violation of his right

against Double Jeopardy. This argument was made by Dupont in his

appeal to the Supreme Court of New Hampshire, where he contended

that "notwithstanding the separate indictments, they are generic in
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nature and permit the juror confusion enunciated in [State v.] Patch

[, 135 N.H. 127 (1991)]." However, the New Hampshire Supreme Court

held that the potential for jury confusion recognized in Patch "did

not exist in this case because the State did exactly what Patch

requires; it 'brought several indictments, each alleging a specific

incident, and consolidated them 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 danger of double

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

involved an unreasonable application of federal law. Dupont has not

shown that reasonable jurists could find that assessment debatable

or wrong with respect to his claim that the indictment was

unconstitutionally duplicitous.

II. Tape-Recorded Confession

In his second Amended Petition, Dupont clarified that 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, 478 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 petitioner has made a substantial

showing of the denial of a constitutional right. As the district

court stated, "[t]here is no requirement in federal law that a taped
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confession be 'complete' before it can be admitted into evidence,

and certainly the federal constitution imposes no such requirement."

8/27/03 Order, p. 9. Therefore, the second Amended § 2254 Petition

failed to allege, much less 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 § 2254 memorandum Dupont argued that his due process

rights were violated by "the failure of the government to record and

introduce the 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

him from introducing evidence about the circumstances in which his

confession was given. Instead, he argued that the admission into

evidence of the selective recording of his interrogation misled the

jury by keeping from them the "context of the 'confession' and the

coercive nature of the interrogation as alleged by the defendant."
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The police officers' failure to record the entire interrogation

arguably could be characterized as a failure to preserve evidence.

Such a failure violates a defendant's due process rights only if the

government: "(1) acted in bad faith when it [failed to preserve]

evidence, which (2) possessed an apparent exculpatory value and,

which (3) is to some extent irreplaceable." United States v. Femia,

9 F.3d 990, 993-94 (1st Cir. 1993). 

It appears that Dupont could not satisfy the second

requirement. The state court found that "[t]he defendant's taped

confession was merely cumulative of [other] evidence," that there

was "no evidence that the defendant made exculpatory or otherwise

inconsistent statements during the unrecorded portion of his

statements to the police," and that "the victim's testimony that

the defendant had committed all of the acts charged was

essentially uncontradicted." Dupont, 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

could not 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.