Breest v. NH State Prison, Warden, 1:21-cv-01034

Petitioner Robert Breest was convicted of first-degree murder in New Hampshire in 1973; the sentencing judge found the crime was a "psycho-sexual" murder, increasing his minimum sentence from 18 to 40 years.
In 1977 a federal judge ordered the case remanded to state court for a new sentencing hearing because Breest had been denied a chance to present evidence related to the psycho-sexual enhancement.
A New Hampshire Superior Court held an evidentiary resentencing hearing in 1981 and certified the crime as psycho-sexual; the New Hampshire Supreme Court affirmed in State v. Breest, 124 N.H. 339 (N.H. 1983).
Breest filed a federal habeas petition in 2006 challenging the psycho-sexual finding; the district court dismissed it as a second or successive petition for which he had not obtained First Circuit authorization, and the First Circuit terminated the appeal.
In 2021 Breest filed a motion styled "Motion for Enforcement of Opinion and Order on Petition for Writ of Habeas Corpus;" the magistrate construed it as a successive §2254 petition and recommended dismissal under 28 U.S.C. §2244 for lack of circuit authorization.
The district court rejected Breest’s objection that the filing was merely a motion to enforce the 1977 order, held the filing to be a successive habeas petition (and alternatively found he already received the 1977-ordered relief), dismissed the petition for lack of jurisdiction, and declined to issue a certificate of appealability.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the 2021 filing is a successive §2254 habeas petition requiring First Circuit authorization	Breest: the filing seeks enforcement of the 1977 remand order, not a new habeas petition	Court/Magistrate: filing seeks an unconditional writ and challenges the psycho-sexual finding—same ground as prior habeas petitions, so it is successive	Held: It is a successive §2254 petition; dismissed for lack of subject-matter jurisdiction under §2244 because Breest lacked appellate authorization
Whether the filing should be treated as an enforcement action of the 1977 remand order (not successive habeas)	Breest: asks the court to enforce the 1977 Order directing a remand/hearing	Court: even if treated as enforcement, the state court already held an evidentiary hearing as required by the 1977 Order	Held: Breest already received the relief ordered in 1977 (the evidentiary hearing and certification); no additional relief warranted
Whether to issue a certificate of appealability (COA)	Breest: (implicit) seeks ability to appeal the dismissal	Government/Court: Breest failed to show a substantial constitutional claim warranting a COA	Held: COA denied — petitioner did not make a substantial showing of the denial of a constitutional right

State v. Breest, 124 N.H. 339 (N.H. 1983) (New Hampshire Supreme Court affirming superior court's psycho-sexual certification after remand)