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Cutler v. Warden, New Hampshire State Prison

United States District Court, First Circuit

December 3, 2013

Kirk Cutler,
Warden, New Hampshire State Prison. Opinion No. 2013 DNH 166


JOSEPH A. DiCLERICO, Jr., District Judge.

Kirk Cutler seeks habeas corpus relief under 28 U.S.C. § 2254 from his state court conviction and sentences for sexual assault on a minor. In support, he asserts claims of ineffective assistance of counsel. The warden moves for summary judgment, and Cutler objects.

Standard of Review

In habeas proceedings as in other civil cases, "[s]ummary judgment is proper if there is no genuine issue as to any material fact and the undisputed facts show that the moving party is entitled to judgment as a matter of law." Kuperman v. Wrenn , 645 F.3d 69, 73 (1st Cir. 2011); see also Fed.R.Civ.P. 81(a)(4). Unlike other civil cases, however, in a habeas case the state court's factual findings are presumed to be correct unless the petitioner demonstrates by clear and convincing evidence that the findings are erroneous. 28 U.S.C. § 2254(e)(1); Robinson v. Thaler, 2013 WL 5372537, at *3 (S.D. Tex. Sept. 24, 2013); White v. Dickhaut, 2011 WL 1085977, at *3 (D. Mass. Mar. 21, 2011).


Cutler hired Attorney Mark Sisti to represent him after Cutler learned that he was being investigated based on statements made to the police by his girlfriend's minor daughter. In September of 2009, Cutler was indicted on two counts of aggravated felonious sexual assault, one count of felonious sexual assault, and one count of misdemeanor sexual assault on a minor. Trial was held in June of 2010. He was found guilty on all counts. He was sentenced on the felony convictions to five to ten years in prison with other sentences suspended, conditioned on good behavior and compliance with the terms of the sentencing order.

Cutler appealed, arguing that the trial court erred under the doctrine of verbal completeness in failing to admit evidence that when he gave his statement to the police, denying the minor's allegations, he offered to take a polygraph test. The New Hampshire Supreme Court ruled that the statements in question did not create a misleading impression and that the trial court's decision was not an unsustainable abuse of discretion.

Cutler then petitioned for a writ of habeas corpus in state court. In support, Cutler argued under state and federal law, that Sisti had provided ineffective assistance by not advising him of his right to testify on his own behalf at trial, by failing to prepare him to testify at trial, by unilaterally deciding that Cutler would not testify, by failing to meet with and prepare witnesses for trial, and by failing to object to testimony introduced to impeach a witness who was favorable to the defense or to request a limiting instruction.

An evidentiary hearing was held on Cutler's habeas claims in state court. The court also reviewed the trial and sentencing hearing transcripts. Sisti, Cutler, and Cutler's former girlfriend, Kelly Lanseigne, testified at the habeas hearing.

The habeas court noted that the testimony of Sisti and Cutler was conflicting as to Cutler's demeanor at trial and that the trial transcript confirmed Sisti's version of events. Sisti testified that Cutler struggled to control his emotions, that after a sidebar Sisti admonished Cutler about his behavior, and that Cutler had stormed out of the courtroom on one occasion. Cutler denied the characterization that he was visibly upset at trial and testified that although he was not perfectly calm, he was far from angry.

The trial transcript showed that at the end of the first day of trial at a bench conference the prosecutor expressed concern about Cutler's behavior because Cutler was "making outbursts or laughs.'" Doc. 1-2, Habeas Order at 4. Sisti agreed to speak to Cutler and stated that he did not want Cutler to act that way. On the second day of trial, before the jury entered the courtroom, the prosecutor again expressed concern about Cutler's behavior and recounted events from the day before when Cutler stormed out of the courtroom. Cutler had spoken to Lanseigne who was waiting to testify and told her to go home. He yelled "the god damn liars'" at the detective involved in the case, and yelled going down the stairs. Sisti responded that he was glad no jurors heard Cutler and that he had already spoken to him about his behavior.

The trial judge then addressed Cutler directly. The judge told Cutler that he was satisfied that Sisti was "taking care of your attitude problems" and that if Cutler did not follow Sisti's advice the judge would take other measures which might mean that Cutler would be excluded from the courtroom. The judge asked Cutler if he understood, and Cutler replied, "Yes, Your Honor."

The habeas court found that Cutler was not credible as to his behavior and demeanor at trial. As a result, the habeas court found that Cutler's version of events involving Sisti's representation was not credible and credited Sisti's testimony. The court concluded that Sisti had not provided ineffective assistance. The ...

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