Robert Breest v. Michael Cunningham, Warden, New Hampshire State Prison

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 that the offender has committed sexual assault or abuse or attempted sexual assault or abuse of the victim before or after death.” N.H. RSA 607:41-d. 1

This section of the New…