Breest v. NH State Prison, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
ROBERT BREEST
v. Civil No. 24-cv-405-LM-TSM
MICHELLE EDMARK, WARDEN, N.H. STATE PRISON
REPORT AND RECOMMENDATION
Robert Breest, proceeding pro se, filed a petition for a writ of habeas corpus under 28 U.S.C. §
2254 (Doc. No. 1) in this court, asserting that his present incarceration violates his rights under the
United States Constitution, as newly discovered DNA evidence demonstrates his actual innocence of his
offense of conviction. The petition is before the undersigned Magistrate Judge for preliminary review.
See Rule 4 of the Rules Governing § 2254 Cases (“§ 2254 Rules); LR 4.3(d)(4).
BACKGROUND
In 1973, Mr. Breest was convicted in the New Hampshire Superior Court, after a jury trial, of
first-degree murder. See State v. Breest, 158 N.H. 511, 512, 969 A.2d 451, 453 (N.H. 2009). Mr. Breest
has been incarcerated for more than fifty years pursuant to that conviction. He has previously filed a
number of collateral actions in state and federal court seeking to overturn his conviction. See State v.
Breest, 169 N.H. 640, 642 & 642 n.1, 155 A.3d 541, 543 & 543 n.1 (2017) (collecting cases).
Among those collateral challenges are a number of § 2254 petitions filed in this Court. Most
recently, Mr. Breest filed a § 2254 petition in 2021 which was dismissed as an unauthorized second or
successive petition under 28 U.S.C. § 2244(b). See Breest v. N.H. State Prison Warden, No. 21-cv-
1034-SE, 2022 U.S. Dist. LEXIS 108100, at *5, 2022 WL 21784114, at *2 (D.N.H. Apr. 1, 2022), R&R
approved, 2022 U.S. Dist. LEXIS 108078, at *5, 2022 WL 2190450, at *2 (D.N.H. June 17, 2022), cert.
of appealability denied sub nom., Breest v. Edmark, No. 22-1568, 2024 U.S. App. LEXIS 18157, at *1,
2024 WL 3490778, at *1 (1st Cir. Mar. 20, 2024).
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Since this court dismissed Mr. Breest’s 2021 § 2254 Petition for a Writ of Habeas Corpus, Mr.
Breest challenged his conviction in state court pursuant to new DNA findings which, he claimed in those
proceedings, provide previously unavailable support for his innocence claim. The New Hampshire
Superior Court denied him relief on September 19, 2024. See State v. Breest, No. 72-S-789 (N.H. Super.
Ct., Merrimack Cty. Sept. 19, 2024). The New Hampshire Supreme Court declined Mr. Breest’s appeal
of that denial on November 7, 2024. See State v. Breest, No. 2024-0542 (N.H. Nov. 7, 2024). Mr.
Breest then filed the § 2254 petition in this matter, seeking relief from those state court decisions.
In this case, the undersigned magistrate judge issued an Order finding that this was a second or
successive § 2254 petition over which this court lacks jurisdiction, and directed the matter be transferred
to the First Circuit Court of Appeals as an application for permission to proceed with a successive 28
U.S.C. § 2254 petition in this Court as required by § 2244(b)(3). The Court of Appeals found that “the
magistrate judge was without jurisdiction to enter a final order,” and transferred the matter back to this
court for further action. Breest v. Edmark, No. 25-1331 (1st Cir. Aug. 11, 2025).
After the matter was transferred back to this court, Mr. Breest filed a “Memorandum of
Intervening United States Supreme Court Case Law and Additional Points of Authority” (Doc. No. 5)
and “Motion for Enlargement on Bail Pending Resolution of this Litigation” (Doc. No. 6). Those filings
are before the court for consideration and a recommendation as to disposition.
DISCUSSION
I. Preliminary Review
A. Legal Standard
Pursuant to § 2254 Rule 4, a judge is required to examine any petition for habeas relief and, if “it
plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in
the district court, the judge must dismiss the petition.” Id. “Federal courts are authorized to dismiss
summarily any habeas petition that appears legally insufficient on its face.” McFarland v. Scott, 512
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U.S. 849, 856 (1994). As Mr. Breest is representing himself in this matter, the court construes his
pleadings liberally. See Dutil v. Murphy, 550 F.3d 154, 158 (1st Cir. 2008).
B. Second/Successive Petition – Transfer or Dismissal
“A state prisoner is entitled to one fair opportunity to seek federal habeas relief from his
conviction. But he may not usually make a ‘second or successive habeas corpus application.’” Banister
v. Davis, 590 U.S. 504, 507 (2020) (citing 28 U.S.C. § 2244(b)). “Before a second or successive
application . . . is filed in the district court, the applicant shall move in the appropriate court of appeals
for an order authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). A
“district court, faced with an unapproved second or successive habeas petition, must either dismiss it, or
transfer it to the appropriate court of appeals,” so that the appellate court can decide whether to allow
the petitioner to proceed in the district court. See Pratt v. United States, 129 F.3d 54, 57 (1st Cir. 1997)
(citation omitted).
Mr. Breest asserts in his petition that there is new DNA evidence, not previously available, which
provides a factual predicate to support his claims that his conviction violates his federal constitutional
rights, and that he should have the opportunity to litigate that claim. See 28 U.S.C. § 2244(b)(2). As
this court has previously decided, however, Mr. Breest has already availed himself of the opportunity to
seek federal habeas relief from his state court conviction in a previous § 2254 action filed in this court.
Accordingly, without comment on the merits of the claims asserted in the instant § 2254 Petition, the
court finds that, under 28 U.S.C. § 2244(b)(3), Mr. Breest must obtain the approval of the First Circuit
Court of Appeals before this Court may exercise jurisdiction over his instant petition. The district judge,
therefore, should direct that this case be transferred to the First Circuit Court of Appeals as an application
to approve a second or successive petition under § 2244(b)(3).
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II. Motions
In his motion entitled “Memorandum of Intervening United States Supreme Court Case Law and
Additional Points of Authority” (Doc. No. 5), Mr. Breest cites to recent Supreme Court caselaw which,
he alleges, support the substantive arguments asserted in his Petition in this case. As discussed above,
this court does not have jurisdiction to consider the substance of Petitioner’s arguments unless and until
the Court of Appeals approves his request to litigate a successive § 2254 petition in this court. Similarly,
the court does not have jurisdiction to consider Mr. Breest’s “Motion for Enlargement on Bail Pending
Resolution of this Litigation” (Doc. No. 6). The district judge, therefore, should deny both of those
motions without prejudice to Mr. Breest’s ability to seek appropriate relief in the Court of Appeals, and
without prejudice to his ability to refile those motions in this court should the Court of Appeals grant his
application to litigate his successive § 2254 petition.
III. Certificate of Appealability
Section 2254 Rule 11(a) requires the court to “issue or deny a certificate of appealability
[“COA”] when it enters a final order adverse to the party.” § 2254 Rule 11(a). To the extent an order
directing the transfer of this matter to the Court of Appeals, on the basis that this court lacks jurisdiction,
at this time, to consider Petitioner’s successive § 2254 petition may be construed as a final order adverse
to Mr. Breest, the district judge should decline to issue a COA, as reasonable jurists would not find it
debatable that the instant petition is an unauthorized successive § 2254 petition.
CONCLUSION
For the foregoing reasons, the district judge should direct that the § 2254 Petition (Doc. No. 1) ,
and attachments thereto, be transferred to the First Circuit Court of Appeals as an application to approve
a second or successive § 2254 petition under § 2244(b)(3), as this court lacks jurisdiction to consider the
Petition without such approval, along with a copy of this Order. The district judge should also deny Mr.
Breest’s pending motions (Doc. Nos. 5, 6) without prejudice, as discussed above.
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Any objections to this Report and Recommendation must be filed within fourteen days of receipt
of this notice. See Fed. R. Civ. P. 72(b)(2). The fourteen-day period may be extended upon motion.
Only those issues raised in the objection to this Report and Recommendation are subject to review in the
district court. See Sch. Union No. 37 v. United Natl Ins. Co., 617 F.3d 554, 564 (1st Cir. 2010). Any
issues not preserved by such objection(s) are precluded on appeal. See id. Failure to file any objections
within the specified time waives the right to appeal the district court’s order. See Santos-Santos v.
Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
__________________________________
Talesha L. Saint-Marc
United States Magistrate Judge
February 23, 2026
cc: Robert Breest, pro se
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