Martin v. Warden, New Hampshire State Prison

          ORDER

          Landya McCafferty United States District Judge.

         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. 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, 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 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 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, 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 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:

1. On or about the 29th of June, 2011, Jacob Palo committed a burglary at the home of Arthur ...