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BREEST v. CUNNINGHAM

No. 84-1309.

752 F.2d 8 (1985)

Robert BREEST, Petitioner, Appellant, v. Michael CUNNINGHAM, Warden, New Hampshire State Prison, Respondent, Appellee.

United States Court of Appeals, First Circuit.

Decided January 11, 1985.

Attorney(s) appearing for the Case

Jeanne Baker, Boston, Mass., by appointment of the Court, with whom Richard Joselson, and Silverglate, Gertner, Baker & Fine, Boston, Mass., were on brief for petitioner, appellant.

John A. Malmberg, Asst. Atty. Gen., Crim. Justice Div., Concord, N.H., with whom Gregory H. Smith, Atty. Gen., Concord, N.H., was on brief for respondent, appellee.

Before COFFIN, Circuit Judge, ALDRICH and SKELTON, Senior Circuit Judges.

BAILEY ALDRICH, Senior Circuit Judge.

The question in this habeas corpus case is whether the state court, 124 N.H. 339, 469 A.2d 1339, was constitutionally warranted in imposing upon petitioner Breest, who was convicted of first degree murder of a young woman in March, 1971, a special additional sentence under the then New Hampshire psycho-sexual murder statute, so-called, which read,

"... murder in which there is evidence...

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