Marro v . Cunningham CV-97-652-JD 01/21/00
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Richard Marro
v. Civil N o . 97-652-JD
Opinion N o . 2000 DNH 015
Michael Cunningham, Warden
New Hampshire State Prison
O R D E R
Richard Marro, proceeding pro s e , seeks a writ of habeas
corpus pursuant to 28 U.S.C.A. § 2254, challenging his state
court conviction of aggravated felonious sexual assault due to
the alleged ineffective assistance of his trial counsel.
Previously, the court permitted Marro to amend his petition to
state only exhausted claims, and three claims stated in the
amended petition were allowed. When the respondent again moved
to dismiss the amended petition as a mixed petition, contending
that the first ineffective assistance of counsel claim had not
been exhausted, the court directed the respondent to file a
motion for summary judgment within a specified framework. See
Order of July 2 7 , 1999. The respondent has moved for summary
judgment (document n o . 5 3 ) , and Marro has filed his objection and
reply. The motion is resolved as follows.
Background
Richard Marro was charged in November of 1994 with felonious
sexual assault of a minor boy. The charges were based on an
investigation by the New Hampshire State Police after the boy’s
parents reported that Marro had sexually assaulted their son. A
state trooper talked to Marro at his home where Marro admitted to
several incidents involving the boy and then signed a brief
statement in which he described the incidents along with a
written waiver of his Miranda rights. Marro retained attorney
Bruce A . Cardello to represent him.
After first pleading not guilty, Marro later pled guilty as
part of a negotiated sentence. His sentencing hearing was held
in Sullivan County Superior Court on April 5 , 1995, before Judge
Robert Morrill. The day before the sentencing Marro drank beer
and mixed drinks with his brother and sister-in-law until 3:00 in
the morning.
At the hearing, Judge Morrill quizzed Marro about his
understanding of the charges against him, the rights he would
give up by pleading guilty, the effect of his guilty plea, and
the possible sentence. Judge Morrill also asked Marro if he were
under the influence of drugs or alcohol and if he suffered from a
mental or emotional illness, and he denied both. After his
inquiry, the judge stated on the record:
2
I am satisfied that he fully understands all his
constitutional rights and other rights associated with
being a criminal defendant in this Court. The
defendant is not under the influence of drugs or
alcohol, doesn’t appear to suffer any mental or
emotional illness, and therefore has the mental
capacity to evaluate his rights and having done so has
knowingly, intelligently and voluntarily waived his
rights and has knowingly, intelligently and voluntarily
changed his plea to guilty. The Court orders the
defendant’s plea of guilty be accepted and entered.
Respondent’s Ex. 3 , Plea and Sentencing Trans. at 1 1 . Attorney
Cardello called a psychologist to testify on Marro’s behalf with
respect to the possibility of rehabilitation through sexual
offender treatment. Marro was sentenced to five to fifteen years
in the state prison, stand committed.
Six months after he was sentenced, Marro filed a pro se
motion in Sullivan County Superior Court to withdraw his guilty
plea (Docket N o . 94-S-184). He argued that his plea was the
result of the ineffective assistance of counsel because his
counsel failed to raise an issue as to his competency to stand
trial, failed to allow him to assist in his defense, failed to
bring up issues of the victim’s involvement in other sexual
assaults, and failed to suppress his confession. Counsel was
appointed to represent Marro on his motion and hearings were held
on February 2 0 , 1996, and April 2 4 , 1996, before Judge Morrill.
Marro’s appointed counsel, Claude Buttrey, represented to the
court at the February 20 hearing that any claim asserting the
3
ineffective assistance of counsel raised in the pro se motion was
waived. At the hearing the court clarified that Marro contended
that his guilty plea was not voluntary or knowing because he was
under extreme duress and stress at the time and was also under
the influence of alcohol. On April 2 4 , 1996, Judge Morrill
denied the motion, finding that the record of Marro’s plea
indicated that the plea was made knowingly, intelligently, and
voluntarily. Marro filed a motion to compel discovery on October
1 7 , 1997, which was denied as moot on December 2 , 1997. The New
Hampshire Supreme Court declined the appeal on July 9, 1998.
On May 7 , 1996, Marro filed a motion for a writ of habeas
corpus in Merrimack County Superior Court (Docket N o . 96-E-150).
In support of the motion, Marro alleged ineffective assistance of
both his trial counsel (Cardello) and his counsel appointed for
the motion to withdraw his plea (Buttrey). He alleged that his
trial counsel did not keep him informed, did not prepare a
defense to the state’s case against him, did not challenge the
admissibility of his confession, and failed to notify the court
of issues concerning his emotional and mental health. Marro was
represented by attorney Theodore Lothstein. Counsel filed a
supplement to the motion for habeas relief in which argued that
Marro’s plea was not knowing, intelligent, or voluntary because
of his depression and intoxication and contended that trial
4
counsel was ineffective in allowing Marro to plead guilty under
those circumstances.
Hearings were held on the habeas motion before Judge Philip
Hollman on October 2 5 , 1996, and February 1 1 , 1997. In the order
denying the motion, the court stated that Marro sought habeas
relief on the grounds that his trial counsel was ineffective for
failing to notice and bring to the court’s attention Marro’s
intoxication at the plea and sentencing hearing and that his
post-trial counsel was ineffective for failing to call witnesses
as to Marro’s intoxication and failing to allege the ineffective
assistance of trial counsel. See Respondent’s Ex. 1 2 , N o . 96-E-
150, Order dated March 1 9 , 1997. The order also stated, “At the
hearing, the plaintiff waived all other claims.” Id. at 1 .
In denying the motion, the court found that Marro told his
trial counsel that the charges against him were accurate and that
he wanted to get the best possible sentence. He discussed the
alternatives of trial and pleading guilty with his counsel, and
he discussed the terms of the plea with his brother. The court
found that Marro planned to plead guilty, understood the terms of
his plea and sentence, and was prepared to present evidence in
support of a lighter sentence. The court concluded that Marro
had failed to show that he would have decided not to plead guilty
and to go to trial under any circumstances. The court also did
5
not believe Marro’s testimony that he was under the influence of
alcohol at the plea and sentencing hearing and found that his
trial counsel’s performance was not deficient. On October 1 6 ,
1997, the New Hampshire Supreme Court summarily affirmed the
denial of his motion for a writ of habeas corpus.
In October of 1997, Marro, proceeding pro s e , filed a second
petition for a writ of habeas corpus in Sullivan County Superior
Court (Docket N o . 97-E-71). Marro alleged that his trial counsel
represented him under a conflict of interest because Cardello’s
law firm had previously represented the victim’s mother. On
December 2 , 1997, the court ruled that no conflict existed
although the firm had represented the victim’s father, before
Cardello became associated with i t . The court also held that
even if a conflict existed, “Mr. Marro’s confessions and the
other evidence against him rule out prejudice.” Respondent’s Ex.
1 6 , N o . 97-E-71, Order dated Dec. 2 , 1997. Marro filed an
appeal, and on July 9, 1998, the New Hampshire Supreme Court
declined the notice of appeal.
In the meantime, on December 2 9 , 1997, Marro filed a
petition for a writ of habeas corpus in this court, alleging
three claims, two claims of ineffective assistance of counsel and
one claim of prosecutorial misconduct. The respondent’s motion
to dismiss the petition as a mixed petition with both exhausted
6
and unexhausted claims was granted and judgment was entered on
August 1 3 , 1998.
Marro filed another petition for a writ of habeas corpus in
Sullivan County Superior Court in August of 1998 in which he
explained that his petition in federal court had been dismissed
for failure to exhaust his claims in state court.1 In support of
the new petition, Marro alleged that his trial counsel was
ineffective in failing to keep him informed, failing to allow a
jury trial, failing to move to suppress his confession on a
Miranda violation, failing to raise the status of Marro’s mental
health to the court, failing to challenge the state’s case after
being told that the victim would be a reluctant witness, and
failing to address Marro’s competency to stand trial. The court
issued a written opinion on August 2 4 , 1998, denying the
petition.2
In the order, Judge Morrill noted that both he and Judge
1
The court apparently did not assign a new docket number,
using N o . 97-E-71 from Marro’s previous petition.
2
At the same time, the court denied a petition for writ of
habeas corpus and/or writ of mandamus that had been filed on
February 4 , 1998. Three days later, the court transferred the
case to Merrimack County, and vacated its prior order denying the
February 4 , 1998, petition and/or writ of mandamus. The record
does not include any other information about the February 4
petition or its resolution.
7
Hollman had previously found that Marro was not intoxicated at
the time of his plea and sentencing and that he had previously
found that Marro changed his plea knowingly, intelligently, and
voluntarily. The court also found that “[t]here is simply no
evidence that the defendant’s counsel’s performance was in anyway
deficient. Even if it were deficient, given the nature of the
defendant’s claims, there is no proof or even offer of proof that
if any or all of them were true, that the defendant was actually
prejudiced. . . . In this case, the evidence against the
defendant was overwhelming.” Respondent’s Ex. 2 0 , N o . 97-E-71,
Order dated Aug. 2 4 , 1998. Marro’s notice of appeal, filed on
August 2 4 , 1998, was declined by the New Hampshire Supreme Court
on March 1 6 , 1999.
Marro moved for relief from judgment entered in his habeas
corpus case in this court, and was permitted to file an amended
complaint stating only exhausted claims. Judgment was vacated as
to three claims stated in the amended complaint:
(1) ineffective assistance of counsel due to counsel’s
failure to properly investigate the charges against the
petitioner and present a defense; (2) ineffective
assistance of counsel due to counsel’s failure to
recognize and alert the court at the petitioner’s plea
and sentencing of the petitioner’s incapacity due to
intoxication; (3) ineffective assistance of counsel due
to counsel’s conflict of interest.
Order, May 5 , 1999 at 2 .
8
Discussion
The respondent moves for summary judgment, contending that
the state courts properly applied legal standards consonant with
federal law and that the decisions were based upon correct
factual findings.3 Summary judgment is appropriate in a habeas
proceeding, as in other cases, when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c).
A petition for a writ of habeas corpus will not be granted
unless the adjudication of the claim in the state court
proceeding:
3
The respondent continues to challenge Marro’s first claim
of ineffective assistance of counsel, contending that the claim
is not exhausted because it was raised and then waived in two of
Marro’s state habeas proceedings and when it was addressed in the
last state habeas proceeding, the court vacated the order denying
the petition. The respondent argues that Marro has procedurally
defaulted the claim. As explained in footnote 2 , supra, the
state court did not vacate its order as to Marro’s petition dated
August 6, 1998, in which the respondent agrees Marro raised the
same ineffective assistance of counsel claim as in claim one in
this case. I f , however, the state court did intend to vacate the
order as to the August 6, 1998, petition, the claim, although
unexhausted, may be denied on the merits. See 28 U.S.C.A. §
2254(b)(2). Therefore, the court does not consider the
respondent’s arguments pertaining to procedural default.
9
10
(1) resulted in a decision that was contrary t o , or
involved an unreasonable application o f , clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C.A. § 2254(d). Review of the legal standard used in the
state court adjudication, the first consideration, requires a
two-step analysis in which the court first asks whether the
Supreme Court has provided a rule of law governing the claim at
issue. See O’Brien v . Dubois,
145 F.3d 1 6 , 24 (1st Cir. 1998).
If a clearly established rule is found, the court decides whether
the adjudication was contrary to the rule; if not, the court
moves to the second step.
Id. At the second step, the court
determines whether the state court’s adjudication constituted an
unreasonable application of Supreme Court precedent.
Id. Unless
the court determines that the state court’s adjudication was
contrary to applicable Supreme Court precedent, it must also
assess whether the decision was an unreasonable application of
the law. See Vieux v . Pepe,
184 F.3d 5 9 , 64 (1st Cir. 1999).
All three of Marro’s claims assert ineffective assistance of
counsel, which is addressed in Strickland v . Washington, 466 U.S.
668 (1984). The Strickland test requires claimants to prove that
counsel’s performance was both deficient and prejudiced his
defense. See Strickland,
466 U.S. at 687; Vieux, 184 F.3d at 6 4 .
11
Deficient performance is representation “that falls below ‘an
objective standard of reasonableness’ under prevailing
professional norms when considering all the circumstances.”
Matthews v . Rakiey, 54 F.3d 908, 924-35 (1st Cir. 1995) (quoting
Strickland,
466 U.S. at 6 8 8 ) . Prejudice “in this context means
‘a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’”
Prou v . United States,
1999 WL 1178985 at *10 (1st Cir. Dec. 1 7 ,
1999) (quoting Strickland,
466 U.S. at 4 9 4 ) .
The Strickland test for ineffective assistance of counsel
has been determined to be one of the clearly established federal
rules that permit analysis under the “contrary to” prong of §
2254(d)(1). See O’Brien, 145 F.3d at 25 & n.6. Both Judge
Hollman and Judge Morrill applied the requirements of the
Strickland test in assessing Marro’s ineffective assistance of
counsel claims in state court. With respect to Marro’s claim of
ineffective assistance of counsel due to counsel’s failure to
recognize and alert the court to his intoxication at the plea and
sentencing hearing, Judge Hollman wrote, “the plaintiff must show
first that counsel’s performance was deficient and second that
counsel’s deficient performance resulted in actual prejudice.”
Respondent’s Ex. 1 2 , N o . 96-E-150, Order dated March 1 9 , 1997 at
4-5. Judge Hollman then defined the requirements of deficient
12
performance and prejudice in terms consonant with the Strickland
test. See id. at 5 . Judge Morrill also followed the Strickland
analysis in both decisions addressing ineffective assistance of
counsel. See Respondent’s Ex. 1 6 , N o . 97-E-71, Order dated Dec.
2 , 1997, and Ex. 2 0 , Order dated Aug. 2 4 , 1998. Therefore, the
state court decisions were not contrary to well-established
federal law.
The state court decisions were also not an unreasonable
application of the Strickland test. Judge Hollman reviewed the
circumstances of Marro’s guilty plea and concluded that no
prejudice occurred. Judge Hollman also held, “Even if the
plaintiff could make a showing of prejudice (which he did n o t ) ,
the Court does not believe the plaintiff’s testimony that he was
under the influence of alcohol at the plea and sentencing
hearing.” Ex. 1 2 , Order dated March 1 9 , 1997 at 6. For that
reason, Judge Hollman found that Marro’s trial counsel “made no
error” and his performance was not deficient in failing to notice
Marro’s intoxication and bring it to the attention of the court.
With respect to Marro’s ineffective assistance claim based
on trial counsel’s alleged conflict of interest, Judge Morrill
found that no conflict existed and that no prejudice occurred due
to Marro’s confessions and the other evidence against him. See
Ex. 1 6 , Order dated Dec. 2 , 1997. Judge Morrill also denied
13
Marro’s ineffective assistance claims, alleging a variety of
representational deficiencies including failure to inform him of
the charges and to present a defense, after reviewing the
transcripts of hearings on Marro’s claims and finding no evidence
that trial counsel’s performance was deficient. Ex. 2 0 , Order of
Aug. 2 4 , 1998 at 2 . Judge Morrill also found no prejudice,
concluding that the evidence against Marro was overwhelming. Id.
Since Marro has not shown that the state court decisions
were contrary to or an unreasonable application of federal law,
to be entitled to habeas relief, he must show that the state
court decisions were “based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding.” § 2254(d)(2). To meet the requirements of
§ 2254(d)(2), Marro bears the burden of rebutting, by clear and
convincing evidence, the presumption that the state courts’
factual findings are correct. § 2254(e)(1).
Marro challenges the validity of his confession, relied on
by the state courts in finding no prejudice, on grounds that it
was taken in violation of his Miranda rights and was involuntary.
Marro says “there are five different sets of actions and
statements by Officer Carroll that would have negated the written
confession that was given by m e , under duress, unknowingly,
unwillingly, and unintelligent.” Petitioner’s Objection (doc.
14
n o . 54) at 2 . Marro signed a waiver of his Miranda rights as
part of his statement, and he provides no factual support for his
claim that his confession was involuntary. In addition, since
Officer Carroll met with Marro in Marro’s home and told Marro
that he did not have to talk with him, Marro was not in custody
during the meeting, and the circumstances of his confession,
including the statements made prior to the signed waiver of his
Miranda rights, do not suggest coercive questioning that would
violate Marro’s constitutional rights. See Oregon v . Elstad, 470
U.S. 298, 318 (1985); United States v . Lanni,
951 F.2d 440, 442-
43 (1st Cir. 1991). Therefore, since Marro has not shown that
his confession was invalid, he has not demonstrated that the
state court’s reliance on the confession, as overwhelming
evidence against him, was unreasonable.
Marro denigrates his trial counsel’s efforts on his behalf,
suggesting that he spent insufficient time negotiating the plea
and failed to investigate the charges against him or interview
witnesses on his behalf. Judge Morrill observed trial counsel
during the plea and sentencing hearing and questioned Marro about
his understanding of the charges, his plea, his sentence, and his
right to a trial, and was satisfied both with Marro’s
understanding of his circumstances and with the representation
provided by trial counsel. Both Judge Hollman and Judge Morrill
15
held hearings on Marro’s petitions for writs of habeas corpus at
which Marro’s trial counsel appeared and testified. Judge
Hollman made specific findings that counsel communicated with
Marro and discussed the charges, the investigation, and the
evidence in the case including Marro’s statements, and that they
discussed the possibility of a plea versus going to trial. Judge
Hollman also found that Marro told his counsel that the charges
were accurate, that he wanted to plead guilty, and wanted the
best possible sentence. With respect to the plea, Judge Hollman
found that in return for the guilty plea, the state offered the
capped sentence and dropped charges for several other incidents.
Both Judge Hollman and Judge Morrill found that Marro was
not intoxicated on the day of the plea and sentencing hearing.
Judge Hollman found that although Marro drank beer and mixed
drinks until two or three in the morning of the hearing, he then
slept for four hours, woke, showered, drank coffee, and talked
with his brother over breakfast, being able to understand and
respond reasonably. At court on the day of the hearing, Marro
met with his counsel for twenty to thirty minutes and his counsel
found nothing unusual in his manner. Judge Morrill questioned
Marro, and he denied that he was under the influence of alcohol.
In response to Marro’s petition for a writ of habeas corpus
based on his counsel’s alleged ineffective assistance due to a
16
conflict of interest, Judge Morrill found that Marro’s trial
counsel’s firm had represented the victim of Marro’s crime before
Cardello was associated with the firm. He also found that the
firm sued the victim’s father for failure to pay the fees. Based
on those circumstances, Judge Morrill held that no conflict
existed.4 In addition, Judge Morrill found that there would have
been no prejudice to his defense because of Marro’s confessions
and the other evidence against him.
Based on the hearings and the evidence of record, Judge
Hollman and Judge Morrill found that Marro’s trial counsel’s
representation was not deficient. Marro has offered no evidence
to contradict the courts’ findings, and falls far short of the
clear and convincing evidence necessary to rebut the presumption
that the findings are correct. As a result, Marro has not shown
that the state court decisions denying his claims of ineffective
assistance of counsel were based on an unreasonable determination
of the facts.
4
Marro has not argued that Judge Morrill applied an
incorrect legal standard to the facts in deciding that no
conflict existed. See Familia-Consoro v . United States, 160 F.3d
761, 764 (1st Cir. 1998) (explaining ineffective assistance of
counsel based on a claim of conflict of interest, not raised
during proceeding, requires proof of actual conflict that
adversely affected counsel’s performance).
17
Marro’s claims received thorough reviews by the state
courts. The respondent has shown that the state courts concluded
that Marro’s counsel did not provide ineffective assistance as
Marro alleges, by failing to investigate the charges, failing to
recognize and notify the court of Marro’s intoxication, or due to
a conflict of interest. Marro has not shown that the state court
decisions denying his petitions for habeas relief, based on
claims of ineffective assistance of counsel, were contrary to or
unreasonable applications of federal law or that the decisions
were the result of unreasonable factual determinations.
Therefore, the respondent is entitled to summary judgment on all
claims alleged by Marro in support of habeas relief.
Conclusion
For the foregoing reasons, the respondent’s motion for
summary judgment (document n o . 53) is granted. The petition for
a writ of habeas corpus is denied. The clerk of court shall
enter judgment accordingly, and close the case.
SO ORDERED.
Joseph A . DiClerico, Jr.
District Judge
January 2 1 , 2000
c c : Richard Marro, Esquire
Christopher H.M. Carter, Esquire
18
