Martin v. NH State Prison, Warden

Filing 9

///ORDER granting 6 Motion for Summary Judgment. The petition is dismissed. Clerk shall enter judgment 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. So Ordered by Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Christopher Martin
v.

Civil No. 16-cv-462-LM
Opinion No. 2017 DNH 244

Warden, New Hampshire
State Prison

O R D E R
Christopher Martin seeks a writ of habeas corpus pursuant
to 28 U.S.C. § 2254, challenging his conviction on burglary
charges.

In support, Martin claims that his counsel provided

constitutionally ineffective assistance during the criminal
proceedings.
judgment.

The Warden, Michael Zenk, moves for summary

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.
procedural grounds.

His direct appeal was dismissed on

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, 501 U.S. 797, 804-06 (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,
2017 order in an earlier filing. See doc. no. 3-2 at 17-43.
1

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

Avnet
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.

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Under

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.”
19.

Doc. no. 3-2 at

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.
open the safe.

Palo beat Cutter and forced him to

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.
a pickup truck.

Palo then stole

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,
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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.

stay hidden, ok?”

No one came, and Avnet

Doc. no. 3-2 at 20.

wandered into a neighbor’s yard.

Just

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

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was free to leave at any time.
occasionally for breaks.

He did leave the room

During the interview, Martin changed

his story several times.
The state police interviewed Martin again on July 20, 2011,
this time in Concord.
interview.

Martin voluntarily drove himself to the

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.
was free to leave.

Again, Martin was told he

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:

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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.
defense.

Martin and his wife testified for the

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

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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

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determination of the facts in light of the evidence presented in
the State court proceeding.”

28 U.S.C. § 2254(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.
Taylor, 529 U.S. 362, 405-06 (2000).

Williams v.

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.”

Id. at 407; see L’Abbe v. DiPaolo, 311

F.3d 93, 96 (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, 303 F.3d

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24, 36 (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.
§ 2254(d).

28 U.S.C.

“If the federal claim was never addressed by the

state court, federal review is de novo.”
F.3d 61, 67 (1st Cir. 2007).

Pike v. Guarino, 492

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, 871 F.3d

117, 122 (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.

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.
2

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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, 585 F.3d 27, 29 (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.

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A defendant has a constitutional right to the effective
assistance of counsel at every critical stage of a criminal
proceeding.

Lee v. United States, 137 S. Ct. 1958, 1964 (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, 597 F.3d 74, 79

(1st Cir. 2010) (citing Strickland v. Washington, 466 U.S. 668,
692 (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, 565 F.3d
48, 54-55 (1st Cir. 2009), as measured “under prevailing
professional norms.”

Strickland, 466 U.S. at 688.

“This is a

highly deferential review, ‘making every effort to eliminate the
distorting effects of hindsight.’”

Sleeper v. Spencer, 510 F.3d

32, 38 (1st Cir. 2007) (quoting Strickland, 466 U.S. at 689).
Accordingly, counsel has “wide latitude in deciding how best to
represent a client,” Yarborough v. Gentry, 540 U.S. 1, 5–6
(2003), and those decisions are entitled to a strong presumption
that counsel has rendered adequate assistance and exercised
reasonable professional judgment.

Strickland, 466 U.S. at 690;

see United States v. Dunfee, 821 F.3d 120, 128 (1st Cir. 2016).
To meet the prejudice requirement, a petitioner must show that
it is “reasonably likely that the result of the criminal
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proceeding would have been different if counsel had performed as
the defendant asserts he should have.”3

Rivera-Rivera v. United

States, 827 F.3d 184, 187 (2016) (internal quotation marks
omitted), cert. denied, 137 S. Ct. 696 (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,

2016 WL 7428221, at *5 (D. Mass. Dec. 22, 2016) (quoting
Harrington v. Richter, 562 U.S. 86, 105 (2011)).

“The question

is whether there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.”

Harrington, 562

U.S. at 105.
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

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, 158 N.H.
762, 768 (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.
3

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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,

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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

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.
4

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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
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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
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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

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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
to summary judgment on this portion of Martin’s claim. See Eck
v. Neal, No. 1:14-cv-13693-ADB, 2017 WL 4364171, 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., 863 F.3d 66, 83 (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)
5

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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.

28 U.S.C. §

2253(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

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