United States District Court, D. New Hampshire
McCafferty United States District Judge.
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. The Warden, Michael Zenk, moves for summary
judgment. Martin objects.
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
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).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).
History of Relationship with Victim
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
shooting together. In addition, Martin's wife bought a
horse from Cutter and used Cutter as the veterinarian for the
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
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.
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 the plan, Martin would get part of the money
from the safe and possibly the gun.
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.
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.
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
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, 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
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.
Investigation of Martin
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 was free to leave at any time. He did leave the
room occasionally for breaks. During the interview, Martin
changed his story several times.
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
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:
1. On or about the 29th of June, 2011, Jacob Palo committed a
burglary at the home of Arthur ...