NO. 01-E-066







The petitioner, Sean Croft, is currently serving two consecutive sentences of 10 to 20 years at the New Hampshire State Prison following his conviction in the Strafford County Superior Court (Fauver, J.) of aggravated felonious sexual assault (AFSA) (RSA 632-A:2, I(a), (b)) and first degree assault (RSA 631:1, I(a)). In this habeas corpus action, Croft originally sought resentencing on the grounds that: (1) his convictions of both AFSA and first degree assault violate the double jeopardy provisions of the state and federal constitutions because the offenses arise out of a single incident; and (2) the trial court committed a further double jeopardy violation when it imposed extended terms of imprisonment for both offense based upon the same factor, i.e., that the defendant "manifested exceptional cruelty or depravity in inflicting . . . serious bodily injury on the victim of his crime[s]." RSA 651:6, I(d). At the hearing held on April 13, 2001, petitioner orally added a third claim: that the extended terms of imprisonment are invalid under the United States Supreme Court's decision in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), because the factual findings upon which his sentences were enhanced above the statutory maximums were made by the judge, not a jury, and were not based upon proof beyond a reasonable doubt. The court concludes that Croft's first two claims are procedurally barred, and that the third claim also fails because the rule announced in Apprendi does not apply retroactively.


The pertinent facts are as follows. On September 8, 1992, Croft met the victim at a restaurant in Rochester. He had previously told his girlfriend that he wanted to kill the victim because of her actions toward one of Croft's friends. At the restaurant, Croft offered the victim pills for a headache; he did not disclose that they were prescription sedatives. The victim ingested the pills and became unconscious. Thereafter, Croft took the victim to his apartment, where he brutally beat and kicked her, stabbed her in the leg, forced additional pills down her throat, and raped her.

In November 1993, a Strafford County grand jury returned indictments against Croft for AFSA and first degree assault. Prior to trial the State had filed notice of its intention to seek an extended term of imprisonment pursuant to RSA 651:6, I(d) in the event the defendant was convicted. On March 13, 1995, a jury found Croft guilty on both indictments. On May 30, 1995, Justice Fauver sentenced Croft to 10 to 20 years imprisonment on the AFSA charge and to a consecutive 10 to 20 years imprisonment on the first degree assault charge.1 With respect to each sentence, the court's determination to impose a term of imprisonment which exceeded the statutorily authorized maximum of 7 1/2 to 15 years for a class A felony was based upon its finding that Croft had committed the offenses with "exceptional cruelty and depravity."

On direct appeal, the New Hampshire Supreme Court affirmed Croft's convictions, rejecting his arguments that (1) the trial court erred in expressing the conditional opinion that an assistant county attorney would be permitted to testify concerning a prosecution witness's character for truthfulness (the witness never actually testified), and (2) the trial court erred in allowing into evidence a letter the defendant wrote while in prison. State v. Croft, 142 N.H. 76 (1997).

After the supreme court upheld his conviction, Croft moved for a new trial and was assigned counsel to represent him in that endeavor. As grounds for a new trial, Croft alleged ineffective assistance of trial counsel, prosecutorial misconduct, violation of a witness sequestration order, and lost or destroyed evidence. The trial court (Fauver, J.) held a two day evidentiary hearing on the motion, and on February 19, 1998, issued a lengthy order denying the motion. Croft again appealed to the supreme court, but raised only the issues regarding ineffective assistance of counsel. Specifically, Croft alleged that trial counsel was ineffective (1) in failing to call one witness and (2) in failing to properly investigate the expected testimony of another witness. The supreme court rejected these claims and affirmed the trial court's order. State v. Croft, 145 N.H. ___, 749 A.2d 1284 (2000).

In the instant proceeding, Croft avers that his convictions and sentences violate the double jeopardy clauses of the United States and New Hampshire Constitutions since both the AFSA and first degree assault charges arise out of a single incident. In Croft's view, he has therefore been subject to multiple punishments for the same offense. Croft initially asserts that first degree assault is a lesser included offense of AFSA because "a conviction of [AFSA] as defined in RSA 632-A:2, cannot be had without first proving all the elements of First Degree Assault." Doc. #3, Petition for Writ of Habeas Corpus, at 7. According to Croft, "the only difference in elements is the element of penetration thats [sic] contained in the Aggravated Felonious Sexual Assault case." Id. Croft argues that the use of force proved at trial to satisfy the element of first degree assault was the same physical force proved to support the AFSA conviction. In addition, Croft argues that "imposing the extended term twice under the same RSA 651:6, I(d) all out of the same single incident, is in itself a violation of the protections from double jeopardy." Id.

The State responds that Croft procedurally waived any double jeopardy claims because he failed to raise them before the trial or appellate courts, or in the proceedings accompanying his motion for a new trial. Alternative, the State argues that the claims should be rejected on the merits. With respect to the claim that the AFSA and first degree assault charges constitute only a single offense, the State notes that this argument is simply incorrect because each offense required proof of an element which the other did not. That is, AFSA required proof of penetration, which first degree assault did not; and the assault charge required proof of serious bodily injury, which AFSA did not. See State v. MacLeod, 141 N.H. 427, 429-30 (1996). As to the sentence enhancement claim, the State argues that there was no double jeopardy violation resulting from the enhancement of each offense based upon the finding of exceptional cruelty or depravity because, viewed in their entirety, the two offenses were separate. Id. at 433.


In the federal system, Congress and the Supreme Court have established a well-defined body of law governing the procedural requirements for a state prisoner to obtain habeas corpus relief. See, e.g., 28 U.S.C. 2244, 2254; Edwards v. Carpenter, 120 S.Ct. 1587 (2000); O'Sullivan v. Boerckel, 526 U.S. 838 (1999). Among the most important of these procedural requirements is the rule which precludes relief in federal court based upon alleged constitutional errors which were not raised in the state proceedings. In order to secure access to the federal writ, the prisoner must establish both "cause" for his failure to raise the issue in state court and "prejudice" resulting from the alleged constitutional violation. Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977); accord. Engle v. Isaac, 456 U.S. 107, 133-34 (1982); Murray v. Carrier, 477 U.S. 492 (1986); Coleman v. Thompson, 501 U.S. 722, 750 (1991) (cause and prejudice standard applies "uniformly to all independent and adequate state procedural defaults").2

New Hampshire law regarding the procedural aspects of habeas corpus is not nearly as well developed as federal law. It is clear, however, that the state writ is generally designed to serve the same purpose as its federal counterpart: to test the validity of the detention or restraint imposed upon the person seeking the writ. See RSA 534:1 ("A person imprisoned or otherwise restrained of his personal liberty . . . is entitled of right to a writ of habeas corpus according to the provisions of this chapter."); Knowles v. Warden, 140 N.H. 387, 389 (1995) (applicant for writ of habeas corpus must allege "a present deprivation of a protected liberty interest"). Furthermore, while the New Hampshire Supreme Court has indicated on several occasions that habeas corpus is available to remedy "harmful constitutional error" "after the time for direct appeal has expired," Bonser v. Courtney, 124 N.H. 796, 808 (1984) (emphasis added); see State v. Clough, 115 N.H. 7, 11 (1975), the court also "has adopted the common law rule that habeas corpus is not a substitute for an appeal." Avery v. Cunningham, 131 N.H. 138, 143 (1988) (citing Springer v. Hungerford, 100 N.H. 503, 505 (1957)). In Avery, the court held that the habeas petitioner was procedurally barred from raising an incompetency claim long after trial when he had knowledge of the issue shortly after his conviction and failed to raise it on direct appeal. Id. The court reasoned that recognition of procedural default as a ground for denying habeas relief was necessary to ensure "an orderly and nondisruptive presentation of claims" and to prevent "circumventing the court's procedural requirements." Id. at 143, 144. See also Roy v. Perrin, 122 N.H. 88, 100 (1982) (citing Wainwright approvingly en route to holding that this state's contemporaneous objection rule precluded a habeas petitioner from asserting a defect in sentencing when he had failed to object at the sentencing hearing and had not raised the issue for four years); Martineau v. Perrin, 119 N.H. 529 (1979) (again citing Wainwright in support of holding that failure to contemporaneously object to jury instructions precluded reliance on allegedly defective instructions as basis for habeas corpus relief).

The Martineau, Roy and Avery decisions cited above, as well as the court's statement in Bonser that alleged constitutional error must be harmful in order to be vindicated through the vehicle of habeas corpus, are sufficient to convince this court that the New Hampshire Supreme Court has effectively adopted as a matter of state law the substance, if not the terminology, of the federal "cause" and "prejudice" standard for obtaining collateral relief based on claims that were not raised at trial or on direct review. Applying this standard, the court holds that Croft's double jeopardy claims are procedurally defaulted because of his failure to raise the claims either at trial, on direct appeal, or in his motion for a new trial. Throughout all of the aforementioned proceedings, Croft was represented by competent counsel. As the State observes, Croft has been actively contesting his convictions since his sentencing six years ago, yet he has never articulated a double jeopardy claim. Moreover, Croft has offered absolutely no justification for his failure to raise the issue in a timely fashion. At this late date, having had ample opportunity to invoke the protection against double jeopardy, Croft properly may be said to have waived all such claims. See Jackson v. Leonardo, 162 F.3d 81,84 (2d Cir. 1998) (double jeopardy claim not raised on direct appeal is procedurally defaulted).


Croft also argues that his enhanced sentences are invalid under Apprendi v. New Jersey, 120 S.Ct. 2348 (2000) because the factual findings of "exceptional cruelty or depravity" on which the enhancements were based were made by the judge, not the jury, and were not predicated upon proof beyond a reasonable doubt. In Apprendi, the Supreme Court held that the due process and jury trial clauses of the Fifth and Sixth Amendments, applicable to the States via the Fourteenth Amendment, require that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 2362-63. There can be no doubt that, if Apprendi is applicable here, the enhanced sentences imposed by Justice Fauver are invalid. See Laplante, Extended Term Sentencing Under RSA 651:6 After Apprendi v. New Jersey, 41 N.H.B.J. 48, 50 (2000) ("after Apprendi, one thing is certain: extended term sentencing, as it has been applied procedurally since 1971, can not stand").

The State responds that this case is not controlled by Apprendi. It argues that Apprendi announced a "new rule" of constitutional law, and that this rule does not apply retroactively to persons, such as Croft, whose convictions had become final before the decision was issued. The court agrees with the State.3 The New Hampshire Supreme Court affirmed Croft's conviction on direct appeal on June 19, 1997, more than three years before the Apprendi decision was issued on June 26, 2000.4 In Teague v. Lane, 489 U.S. 288 (1989), the Supreme Court held5 that a "new rule" of constitutional law will not be applied retroactively on collateral review of cases which have become final before the new rule is announced unless the new rule falls within one of two exceptions: (1) it "places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe;" or (2) it is a "watershed rule of criminal procedure" which calls into question the fundamental fairness and accuracy of the proceeding which resulted in the conviction. Id. at 307. Under Teague, a case propounds a new rule "when it breaks new ground or imposes a new obligation on the States or the Federal government." Id. at 301. Essentially, a rule is "new" "if the result was not dictated by precedent existing at the time the defendant's conviction became final." Id. (emphasis in original).

Clearly, the rule requiring the prosecution to submit to a jury and prove beyond a reasonable doubt any fact aside from recidivism that results in an increase of the statutory maximum penalty "imposes a new obligation" on the State. See id. Prior law did not dictate that the prosecution must make such proof. See Jones v. United States, 526 U.S. 227 (1999) (stating precedent not dispositive regarding burden of proof for facts resulting in increased penalty for carjacking); see also Apprendi, 120 S. Ct. at 2387 (O'Connor, J., dissenting) (noting majority "can cite no decision" in which the Court, as a constitutional matter, had required application of the rule announced in Apprendi). The conclusion follows that Apprendi announced a new rule of criminal procedure, which is not to be applied retroactively unless it comes within one of the two exceptions discussed above. Teague, 489 U.S. at 311-13.

The first Teague exception is obviously inapplicable to this case. Designating the exceptional cruelty or depravity enhancer as an element which must be proved to the jury beyond a reasonable doubt hardly accords constitutional protection to any aspect of the conduct of Croft which formed the basis for his convictions.

Nor does the holding in Apprendi rise to the level of a "watershed rule of criminal procedure." Id. The Supreme Court has held that, to fit within this exception, a new rule must "alter our understanding of the bedrock procedural elements" required to ensure fairness in criminal proceedings. Sawyer v. Smith, 497 U.S. 227, 242 (1990) (citations and quotations omitted). The Court intended the watershed exception to apply "only to a small core of rules requiring observance of those procedures that are implicit in the concept of ordered liberty." Graham v. Collins, 506 U.S. 461, 478 (1993) (citations and quotations omitted). A watershed rule must pertain to an aspect of criminal procedure that "implicate[s] the fundamental fairness of the trial." Teague, 489 U.S. at 312. The rule announced in Apprendi does not affect the fundamental fairness of the proceeding. Requiring jury findings based upon proof beyond a reasonable doubt to justify an extended prison term impacts sentencing alone, not the underlying determination of a defendant's guilt or innocence. The failure to follow Apprendi's dictates does not constitute error of the magnitude that would be generated, for example, by the absence of counsel or by a biased judge. It does not, in short, involve an "extreme malfunction" of the criminal justice system. Wright v. West, 505 U.S. 277, 292 (1992). Therefore, in agreement with the majority of other courts which have considered the issue, this court holds that the Apprendi rule does not apply retroactively to collateral review proceedings. See Jones v. Smith, 231 F.3d 1227, 1237 (9th Cir. 2000); United States v. Gibbs, 125 F.Supp.2d 700, 706-07 (E.D.Pa. 2000); United States v. Pittman, 120 F.Supp.2d 1263, 1269-71 (D.Or. 2000). Accord. United States v. Nealy, 232 F.3d 825, 829 (11th Cir. 2000) (applying harmless error analysis to Apprendi claim raised on direct appeal); United States v. Sheppard, 219 F.3d 766, 768-69 (8th Cir. 2000) (same). See also United States v. Mandanici, 205 F.3d 519 (2d Cir.), cert. denied, 121 S.Ct. 190 (2000) (rule of United States v. Gaudin, 515 U.S. 506 (1995), requiring submission of element of materiality to jury does not fall within Teague exception for watershed rules); United States v. Shunk, 113 F.3d 31, 37 (5th Cir. 1997) (same); United States v. Swindall, 107 F.3d 831, 836 (11th Cir. 1997) (same).


For the reasons stated above, the court concludes that petitioner is not entitled to habeas corpus relief. Accordingly, judgment is hereby entered in favor of the respondent and against the petitioner.



May 22, 2001                              ______________________
                                                    ROBERT J. LYNN
                                                    Associate Justice



1 Based upon his convictions of AFSA and first degree assault, the trial court also found that Croft had violated the terms of probation that had previously been imposed in connection with a burglary conviction. On the probation violation, Justice Fauver sentenced Croft to 7 to 15 years imprisonment, to run concurrent with the AFSA sentence.

2 The only exception to the cause and prejudice standard is in circumstances where the habeas petitioner can "demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.

3 Although the court resolves the Apprendi claim under the Teague analysis, the court notes that Croft would appear to have a steep hurdle to overcome in establishing "cause" for his failure to raise the Apprendi claim before the trial court and on direct appeal. The mere fact that, before Apprendi was decided, such a claim might have been regarded as somewhat novel would likely be found insufficient to constitute "cause" under Wainwright and its progeny. See Bousley v. United States, 523 U.S. 614, 621-24 (1998). As one court recently noted:

other defendants began making Apprendi-like arguments soon after the Sentencing Guidelines came into being, and in McMillan v. Pennsylvania, 477 U.S. 79 (1986), the Court addressed on the merits an argument along similar lines. [Croft] could have invoked the themes in McMillan, and for that matter in In re Winship, 397 U.S. 358 (1970), just as the [majority] Justices did in Apprendi.

Garrott v. United States, 238 F.3d 903, 905-06 (7th Cir. 2001). Because the Teague question appears more easily resolved than the question of whether Croft had "any reasonable legal basis" for raising an Apprendi argument at trial or on direct appeal, id. at 905, the court's manner of deciding this case does not run afoul of the teachings of Lambrix v. Singletary, 520 U.S. 518, 525 (1997).

4 Croft did not seek reconsideration of the decision of the New Hampshire Supreme Court, nor did he file a petition for certiorari in the United States Supreme Court.

5 Although Teague was a plurality decision, its reasoning has since been adopted by a majority of the Court. See O'Dell v. Netherland, 521 U.S. 151, 156-57 (1997); Caspari v. Bohlen, 510 U.S. 383, 389-90 (1994).