UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Christopher Martin

v. Civil No. 16-cv-462-LM Opinion No.

Warden, New Hampshire State Prison

O R D E R

Christopher Martin seeks a writ of habeas corpus pursuant

to

, challenging his conviction on burglary

charges. In support, Martin claims that his counsel provided

constitutionally ineffective assistance during the criminal

proceedings. The Warden, Michael Zenk, moves for summary

judgment. Martin objects.

Background

Following the events that are described below, Martin was

charged with two counts of being an accomplice to theft by

unauthorized taking, one count of being an accomplice to

burglary, and one count of conspiracy to commit burglary. He

was convicted in New Hampshire Superior Court, Rockingham

County, on all four charges and was sentenced to a total of 10

to 30 years in prison. His direct appeal was dismissed on

procedural grounds. Martin then filed a petition for a writ of habeas corpus in

the superior court, asserting claims of ineffective assistance

of counsel. His petition was construed as a motion for a new

trial under RSA 526:1-4, and was denied after a hearing. Martin

v. Gerry, No. 217-2014-CV-354 (N.H. Super. Ct. Feb. 28, 2017).1

The New Hampshire Supreme Court declined Martin’s notice of

discretionary appeal. The decision under review here is the

superior court’s February 28, 2017 decision denying Martin’s

motion for a new trial, and the factual background is taken from

that decision and the transcripts of the state criminal trial.

See Ylst v. Nunnemaker,

(1991).

I. History of Relationship with Victim

Martin’s father had a plumbing business, where Martin

worked beginning when he was a teenager. At some point, Martin

met Dr. Arthur Cutter, a veterinarian, who hired Martin’s father

as a plumber. Martin eventually took over his father’s

business, and Cutter continued to hire Martin to provide

plumbing services. Cutter and Martin had a friendly

relationship, and they had engaged in recreational firearm

Martin included a copy of the superior court’s February 28, 1

2017 order in an earlier filing. See doc. no. 3-2 at 17-43.

2 shooting together. In addition, Martin’s wife bought a horse

from Cutter and used Cutter as the veterinarian for the horse.

Cutter operated his veterinarian practice out of the

basement in his home in Deerfield, New Hampshire. Martin

provided plumbing services to Cutter in the residential part of

Cutter’s home. On one occasion, Martin fixed a sink drain in a

bathroom off of Cutter’s bedroom, where Cutter had a safe.

In March or April 2011, Martin hired Jacob Eric Palo as a

day laborer in his plumbing business. Palo lived with his

girlfriend, Sherri Avnet, in an apartment in Manchester. Avnet

was a drug addict who used heroin, cocaine, and Xanax. Martin,

who was also a drug user, began visiting Palo’s apartment to

exchange drugs. Martin recommended Cutter as a veterinarian and

gave Palo Cutter’s telephone number, address, and directions to

his house.

II. The Burglary

During one visit with Palo and Avnet, Martin told Palo

about the safe in Cutter’s bedroom, which Martin said contained

money, and also told Palo that Cutter had a gun under the stairs

in his home. Martin and Palo discussed a plan in which Martin

would drop Palo at Cutter’s house, and Palo would force Cutter

to open the safe so that Palo could steal the contents. Under

3 the plan, Martin would get part of the money from the safe and

possibly the gun.

On June 29, 2011, Martin picked up Palo and Avnet in his

van. Palo showed Martin a BB gun and said that he was going to

confront “someone . . . who owed him a debt.” Doc. no. 3-2 at

19. Martin dropped Palo and Avnet near Cutter’s driveway and

then drove to a job site.

Palo went to Cutter’s door, and when Cutter opened the

door, Palo attacked him. Palo beat Cutter and forced him to

open the safe. Palo stole money, silver, and a gun, and then

drove away in Cutter’s Cadillac. Cutter went to a neighbor’s

home to call the police.

Palo pulled over along a road to bury the stolen items and

then continued driving in Cutter’s car. He eventually

encountered a state trooper and attempted to escape, but the

trooper pursued him. Because of spikes the Raymond police put

in the road to assist in Palo’s capture, Palo crashed Cutter’s

car in Raymond and fled into the woods on foot. Palo then stole

a pickup truck. While being pursued in the truck, Palo hit an

Epping police cruiser, causing damage to the truck. Eventually,

Palo was apprehended and taken into custody.

In the meantime, Avnet was hiding in the woods near

Cutter’s home but then walked into the street near the house.

When she heard crashing inside the house, she texted Martin,

4 asking what she should do. Martin instructed her to stop using

the phone, to throw the phone away, and to walk away from the

area and hide. Avnet texted back that the police had left, and

Martin responded: “Wait where you are. He will be there. Just

stay hidden, ok?” Doc. no. 3-2 at 20. No one came, and Avnet

wandered into a neighbor’s yard. The homeowners saw Avnet and

noticed that she was texting and pointing a flashlight at

passing cars. They called the police.

The responding officer from the Deerfield Police Department

noticed that Avnet was impaired and took her into custody. The

officer found that Avnet had two backpacks with cell phone

chargers, a flashlight, license plates, duct tape, a knife, and

bleach. Avnet told the police that Palo had broken into

Cutter’s house to steal a safe that contained gold and money.

Avnet also told the police that Martin was involved in the

robbery.

III. Investigation of Martin

On June 30, 2011, the state police contacted Martin, who

lived in Danbury, New Hampshire, for an interview. Martin drove

himself to the Danbury Police Department to meet with the state

police interviewer. The interview was conducted in the large

community room in the town hall at a conference table. Although

the door was closed for privacy, it was not locked, and Martin

5 was free to leave at any time. He did leave the room

occasionally for breaks. During the interview, Martin changed

his story several times.

The state police interviewed Martin again on July 20, 2011,

this time in Concord. Martin voluntarily drove himself to the

interview. At the beginning of the interview, Martin told the

interviewer that his version of events would be different from

what he said at the prior interview. Again, Martin was told he

was free to leave. During this interview, Martin admitted that

he gave Palo and Avnet a ride on June 30 so that Palo could

collect money owed to him, but claimed he dropped them off in

Concord. Despite cell phone records placing him in Deerfield,

he denied that he drove to Deerfield, where Cutter lived, and

denied being involved in the attack and robbery. At the

conclusion of the interview, the state police arrested him for

conspiracy to commit burglary.

IV. Trial

Martin was charged with one count of conspiracy to commit

burglary, one count of accomplice to burglary, and two counts of

accomplice to theft by unauthorized taking. On the

recommendation of his counsel, before trial, Martin stipulated

to the following facts:

6 1. On or about the 29th of June, 2011, Jacob Palo committed a burglary at the home of Arthur Cutter in Deerfield, N.H.;

2. During which Palo recklessly inflicted bodily injury on Arthur Cutter;

3. Further, Palo entered the Cutter residence and obtained or exercised unauthorized control over United States Currency in an amount greater than $1,500, the property of Arthur Cutter, and removed that currency from the Cutter residence with the purpose to deprive Cutter thereof.

4. Palo entered the Cutter residence and obtained or exercised unauthorized control over a 9 mm pistol, a firearm, the property of Arthur Cutter, and took that firearm from the Cutter residence with the purpose to deprive Cutter thereof.

Doc. no. 3-2 at 21-22. Avnet pleaded guilty and testified at

trial that she conspired with Palo and Martin to commit burglary

and theft. In addition to Avnet, several others testified for

the state, including Cutter, the officer who took Avnet into

custody, and the state police detectives who interviewed Martin

and worked on the case. Martin and his wife testified for the

defense. The jury convicted Martin on all charges.

Martin appealed his conviction to the New Hampshire Supreme

Court (“NHSC”). The NHSC dismissed his appeal on procedural

grounds.

V. Petition for Habeas Relief to Superior Court

Martin filed a petition for writ of habeas corpus in the

superior court. Because Martin’s claims arose out of a trial

7 that occurred before that court, the court construed his

petition as a motion for a new trial under RSA 526:1-4. Martin

asserted in his motion for a new trial that his trial counsel

was ineffective because he: (1) advised Martin to agree to

stipulated facts about Palo’s actions; (2) failed to introduce

potentially exculpatory evidence; (3) failed to move to dismiss

the charges for insufficiency of the evidence; and (4) failed to

move to suppress Martin’s two statements to the state police.

On February 8, 2016, the superior court denied Martin’s motion

for a new trial.

Martin subsequently filed a notice of discretionary appeal

to the NHSC. The NHSC declined the notice on April 15, 2016.

Martin then filed a petition for writ of habeas corpus in this

court, and the Warden now moves for summary judgment.

Standard of Review

Under the Anti-Terrorism and Effective Death Penalty Act

(“AEDPA”), a federal court cannot grant habeas relief with

respect to a claim that was adjudicated on the merits in state

court unless adjudication of the claim resulted in a decision

that (i) “was contrary to” clearly established federal law, as

determined by the Supreme Court of the United States, (ii)

involved an “unreasonable application of” clearly established

federal law, or (iii) was based on an “unreasonable

8 determination of the facts in light of the evidence presented in

the State court proceeding.”

(d).

A state court decision is “contrary to” established Supreme

Court precedent if either the state court reaches a conclusion

on a question of law “diametrically different” to that reached

by the Supreme Court, or a state court “confronts a set of facts

that are materially indistinguishable” from relevant Supreme

Court precedent and reaches an opposite result. Williams v.

Taylor,

(2000). A state court decision is

an “unreasonable application” of clearly established federal law

if the state court (i) “identifies the correct governing legal

rule from [the Supreme Court’s] cases but unreasonably applies

it to the facts” of a prisoner’s case, (ii) “unreasonably

extends a legal principle from [the Supreme Court’s] precedent

to a new context where it should not apply” or (iii)

“unreasonably refuses to extend that principle to a new context

where it should apply.”

; see L’Abbe v. DiPaolo,

(1st Cir. 2002). In order to meet this standard,

the state court’s application of law must contain “some

increment of incorrectness beyond error . . . . The increment

need not necessarily be great, but it must be great enough to

make the decision unreasonable in the independent and objective

judgment of the federal court.” McCambridge v. Hall,

(1st Cir. 2002) (internal quotation marks and citation

omitted).

This deferential standard of review applies to all claims

that were “adjudicated on the merits” in state court.

(d). “If the federal claim was never addressed by the

state court, federal review is de novo.” Pike v. Guarino,

(1st Cir. 2007). Here, Martin presented the same

claims of ineffective assistance of counsel to the state

superior court, and that court considered and rejected those

claims on the merits.2 As a result, the deferential standard

required by § 2254(d) applies here. Lucien v. Spencer,

(1st Cir. 2017).

Discussion

Martin seeks a writ of habeas corpus based on the same four

claims of ineffective assistance of counsel that he brought in

his motion for a new trial in the superior court. The Warden

moves for summary judgment on the ground that Martin cannot show

that the superior court’s decision that rejected Martin’s claims

was contrary to or an unreasonable application of federal law.

Martin objects.

2 In the superior court proceeding, Martin also brought a claim of ineffective assistance of counsel based on “a broad generalization that trial counsel failed to object numerous times throughout trial.” Doc. no. 3-2 at 43. Martin does not pursue that claim here.

10 I. Deferential Standard of Review

In his petition and his objection to summary judgment,

Martin does not contend that the superior court’s decision

denying his ineffective assistance of counsel claims was

contrary to clearly established federal law as determined by the

Supreme Court. Nor does he argue that the superior court’s

decision was based on an unreasonable application of federal law

or on an unreasonable determination of the facts. Indeed, for

the most part, Martin ignores entirely the superior court’s

decision. Instead, Martin urges this court to consider and

decide his claims on the merits and to find that his trial

counsel provided ineffective assistance without considering the

decision rendered by the superior court.

As discussed, all of the ineffective assistance of counsel

claims Martin raises in his petition for writ of habeas corpus

were adjudicated on the merits and, therefore, AEDPA “mandates

highly deferential federal court review of [the] state court

holdings.” Zuluaga v. Spencer,

(1st Cir. 2009).

Thus, although Martin appears to seek de novo review of his

claims, the court employs the deferential standard of review in

considering whether the Warden has shown that he is entitled to

summary judgment.

11 A defendant has a constitutional right to the effective

assistance of counsel at every critical stage of a criminal

proceeding. Lee v. United States,

(2017).

To establish an ineffective assistance of counsel claim, a

petitioner must prove both “deficient performance by counsel and

resulting prejudice.” Peralta v. United States,

(1st Cir. 2010) (citing Strickland v. Washington,

(1984)).

The “deficient performance” prong of this standard requires

proof that trial counsel's representation fell below “an

objective standard of reasonableness,” Pina v. Maloney,

(1st Cir. 2009), as measured “under prevailing

professional norms.” Strickland,

. “This is a

highly deferential review, ‘making every effort to eliminate the

distorting effects of hindsight.’” Sleeper v. Spencer,

(1st Cir. 2007) (quoting Strickland,

).

Accordingly, counsel has “wide latitude in deciding how best to

represent a client,” Yarborough v. Gentry,

, 5–6

(2003), and those decisions are entitled to a strong presumption

that counsel has rendered adequate assistance and exercised

reasonable professional judgment. Strickland,

;

see United States v. Dunfee,

(1st Cir. 2016).

To meet the prejudice requirement, a petitioner must show that

it is “reasonably likely that the result of the criminal

12 proceeding would have been different if counsel had performed as

the defendant asserts he should have.”3 Rivera-Rivera v. United

States,

(2016) (internal quotation marks

omitted), cert. denied,

(2017).

“The deferential standard set forth in Strickland becomes

‘doubly’ deferential when applied in the context of a habeas

petition under § 2254(d).” Leng v. Gelb, No. 14-CV-10462-ADB,

, at *5 (D. Mass. Dec. 22, 2016) (quoting

Harrington v. Richter,

(2011)). “The question

is whether there is any reasonable argument that counsel

satisfied Strickland’s deferential standard.” Harrington,

.

As mentioned, Martin claims that his trial counsel was

ineffective because he 1) advised Martin to agree to stipulated

facts about Palo’s actions, 2) failed to introduce potentially

exculpatory evidence, 3) failed to move to dismiss the charges

for insufficiency of the evidence, and 4) failed to move to

suppress Martin’s statements made to the state police during the

3 The superior court relied on the New Hampshire standard for ineffective assistance of counsel, which is based on the federal Strickland standard, as stated in State v. Whittaker,

(2009). As the superior court correctly noted that the standard for ineffective assistance of counsel is the same under both the New Hampshire Constitution and the United States Constitution, the court relies on Strickland and its progeny.

13 two interviews. The court addresses each of these claims under

the standards set forth above.

II. Stipulations

Martin alleges in his petition that his trial counsel erred

by advising him to agree to the stipulations about Palo’s

criminal actions because the stipulations eliminated the need

for the government to prove those actions at trial. He alleges

that trial counsel gave that advice to avoid Palo’s testimony at

trial about the attack on Cutter because he thought the details

of the attack and robbery would influence the jury against

Martin even though counsel knew before the stipulations were

entered that Palo likely would not testify at trial.

Martin also cites his trial counsel’s testimony at the

superior court’s hearing that he advised in favor of the

stipulations because he thought that otherwise Palo’s

convictions would be admissible at trial or that the court could

take judicial notice of the convictions. Martin contends that

counsel was mistaken.

The superior court credited Martin’s counsel’s explanation

that the defense theory was that Martin was not part of the

conspiracy to commit the crime and that he was not aware of what

Palo and Avnet were planning. The superior court concluded,

14 however, that Martin’s counsel erred in advising him that Palo’s

convictions would be admissible even if Palo did not testify.

The superior court found that trial counsel’s mistake was

not prejudicial because there “is no reasonable probability that

the result of the trial would have been different had there been

no stipulation.” Doc. no. 3-2 at 28. The superior court noted

that even in the absence of the stipulation, there was

substantial evidence through Avnet’s and Cutter’s testimony to

prove that Palo committed the burglary. The court also found

that the stipulations were a reasonable strategy to minimize

evidence of Palo’s violent acts.4

The superior court applied a standard for assessing

ineffective assistance of counsel with respect to the

stipulations that is the same as the federal standard under

Strickland. The court then applied that standard in a

reasonable manner. Therefore, the Warden is entitled to summary

4 The superior court also found that Martin knowingly and intelligently accepted counsel’s defense strategy to stipulate to Palo’s actions, quoting a colloquy the trial court had with Martin concerning the stipulations. In the objection to summary judgment, Martin appears to argue that he did not knowingly and intelligently accept that strategy because he was not aware of the other options available. As is noted above, however, the superior court found that Martin suffered no prejudice from the stipulations because of the amount of evidence of Palo’s actions. For that reason, even if Martin accepted the stipulations based on deficient advice from his counsel, he suffered no prejudice as a result.

15 judgment on the portion of Martin’s claim based on the

stipulations.

III. Exculpatory Evidence

Martin contends that his counsel should have introduced the

statement Palo gave to the police about the burglary because

Palo did not name Martin as a co-conspirator in the crime.

Because Palo did not implicate him, Martin asserts that the

statement was exculpatory. The superior court found that

although the statement did not directly implicate Martin in the

burglary, it did not exonerate him of participating in the

conspiracy. The superior court concluded that it was a

reasonable trial strategy not to introduce Palo’s statement

because of the defense strategy to disassociate Martin from

Palo.

The superior court applied a standard for ineffective

assistance of counsel to this portion of the claim in a manner

that was neither contrary to nor an unreasonable application of

federal law. Therefore, the Warden is entitled to summary

judgment on the portion of Martin’s claim based on allegedly

exculpatory evidence.

IV. Motion to Dismiss

Martin contends that his trial counsel provided deficient

representation because he did not move to dismiss the charges at

16 the close of the state’s case. He argues that there was

insufficient evidence to prove beyond a reasonable doubt that he

committed the charged crimes. He also asserts that a motion to

dismiss would have been granted.

Martin was charged with being an accomplice to theft by

unauthorized taking, accomplice to burglary, and conspiracy to

commit burglary. He does not dispute that Palo committed theft

by unauthorized taking and burglary, and he agreed to the

stipulations regarding Palo’s conduct.

Under New Hampshire law, “[a] person is guilty of an

offense if it is committed by his own conduct or by the conduct

of another person for which he is legally accountable or both.”

RSA 626:8, I. “A person is an accomplice of another person in

the commission of an offense if . . . he solicits such other

person in committing [the offense], or aids or agrees or

attempts to aid such other person in planning or committing [the

offense].” RSA 626:8, III(a). “A person is guilty of

conspiracy if, with a purpose that a crime defined by statute be

committed, he agrees with one or more persons to commit or cause

the commission of such crime, and an overt act is committed by

one of the conspirators in furtherance of the conspiracy.” RSA

629:3, I.

In the superior court proceeding, Martin argued that the

evidence submitted by the State at trial was insufficient to

17 prove that he had committed the charged crimes beyond a

reasonable doubt. In support, Martin noted that there was no

evidence that he was present at Cutter’s house when the burglary

occurred, that Cutter testified he did not hear any mention of

Martin on the night of the invasion, Avnet’s conflicting

statements to the police, and Martin’s wife’s testimony that a

hand-drawn map of Cutter’s house was not in Martin’s

handwriting. In his petition in this court, Martin has advanced

the same evidentiary issues that he raised in the superior court

proceeding.

The superior court analyzed the elements of the charges

against Martin and concluded that the deficiencies Martin cited

were not material, particularly in light of the evidence of his

participation in the crimes. The court cited Avnet’s testimony

that Martin drove Palo and Avnet to Cutter’s house on the night

of the burglary. The court also explained that despite Martin’s

wife’s testimony that the map to Cutter’s house was not in

Martin’s handwriting, there was other evidence that Martin had

been inside Cutter’s house and had given Palo information about

the residence. Based on the evidence at trial, the superior

court concluded that there was sufficient evidence of Martin’s

guilt to support a guilty verdict such that the lack of a motion

to dismiss could not constitute ineffective assistance of

18 counsel. That determination was neither contrary to nor an

unreasonable application of federal law.

V. Motion to Suppress

In his objection, Martin opposes summary judgment on three

of his four claims. He does not address his claim based on

counsel’s failure to move to suppress his statements made during

the interviews by state police.

Even had Martin raised an objection, it would be without

merit. The superior court denied the claim based on state and

federal law pertaining to interrogating a suspect. The superior

court also noted that even had Martin’s counsel moved to

suppress certain statements, and even had the trial court

granted that motion, “it would not have barred any evidence that

was admitted at trial.” Doc. no. 3-2 at 39. The superior

court’s analysis was neither contrary to nor an unreasonable

application of federal law.5

Regardless, Martin’s failure to object entitles the Warden 5

to summary judgment on this portion of Martin’s claim. See Eck v. Neal, No. 1:14-cv-13693-ADB,

, at *6 n.5 (D. Mass. Sept. 29, 2017) (“A failure to respond to a movant’s bid for summary judgment on certain claims is, in itself, a basis on which to grant summary judgment as to those issues.” (internal quotation marks and citation omitted)); see also Eldridge v. Gordon Bros. Gr., L.L.C.,

(1st Cir. 2017) (plaintiff’s failure to object to summary judgment as to a claim constitutes a waiver of any objection as to summary judgment on that claim)

19 Conclusion

For the foregoing reasons, the Warden’s motion for summary

judgment (document no. 6) is granted. The petition is

dismissed.

The clerk of court shall enter judgment accordingly and

close the case.

Because the petitioner has failed to make a substantial

showing of the denial of a constitutional right, the court

declines to issue a certificate of appealability.

(c)(2); Rule 11, Rules Governing Habeas Corpus Cases Under

Section 2254.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

December 4, 2017

cc: All counsel of record

20