2021-0357, Marc Mallard v. Warden, New Hampshire State Prison

i neffective assistance. We reverse and remand. Mallard failed to demonstrate actual prejudice as a result of his trial counsel’s grounds that it was procedurally defaulted and, even if it were not, that Superior Court (S c hulman, J.) dismissing his petition for habeas corpus on M AC DONALD, C.J. The p etitioner, Marc Mallard, appeals an order of the

for the respondent. general (Zachary L. Higham, assistant attorney general, on the brief and orally), John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

Michael G. Eaton on the brief, and Michael G. Eaton, orally), for the p etitioner. Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Donna J. Brown and

No. 2021 - 0357 Merrimack

page is: https://www.courts.nh.gov/our - courts/supreme - court a.m. on the morning of their release. The direct address of the court’s home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by email at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

about right. A. It’ s a printout from my cell phon e, so it’s probably, actually,

Q. So that picture’s been darkened up; has it not?

assault, the following exchange took place: incongruity between the photograph of her injury a n d her account of the During trial counsel’s cross - examination of the victim regarding the

that she had been punched in the face by a large, strong man using great force. photograph taken the following day was inconsistent with the victim’s claim related to the attempt ed strangulation; and the b ruise on the victim’s face in a t ext messages saying that she loved him; there was no evidence of injuries continued a friendly relationship with Mallard after the assault and sent him victim was unsure which si de of her face had been bruised; the victim lasted; when she spoke with a police officer approximately one month later the was hazy as to how many times she was punched and ho w long the incident T rial counsel focused on several facts including that: the victim’s testimony Mallard’s defense was that the v ictim’s a ccusations were fabricated.

PM and f allen dow n in the bathroom. face and was told by the victim that she had drunk alcohol and taken Tylenol victim the following day, testified that she observed a bruise on the victim’s trouble and because she was embarrassed. The v ictim’s mother, who saw the The victim did not call the police because she did not want to get Mallard in Mallard suddenly stopped the attack, began to cry, and left the victim’s home. threw the victim onto the bed, and started to choke her with his hands. and a split lip. Mallard then tried to wrap a belt around the victim’s neck, to the victim, Mallard punched her in the face, causing her to suffer a black eye communicated with a wo man Mallard was allegedly involved with. According visited the victim at her home. He was upset because the victim had On the night of the incident that resulted in the charged acts, Mallard

relationship between Mallard and the victim deteriorated. In p. 2 2008, they decided to have a chi ld together. After the birth of the child, the her testimony, she and Mallard met in 2006 and began dating six months later. lasted less than three hours. T he central witness was the victim. According to A jury tria l took place on July 25, 2013. The presentation of evidence

woman.” “a large African, American man,” and the victim is “a much smaller white p. 2 2012 against a romantic partner. As the trial court described them, Mallard is record. Mallard was charged with committing acts of domestic violence in The following facts were found by the trial court or are drawn from the

I. Background p. 3 3

six years, which includes a sentence on charges unrelated to this case. seven to fourteen years in the state prison plus a consecutive term of three to 11071107 (N.H. January 21, 2015). Mallard is currently serving a sentence of See State v. Mallard, No. 201 p. 3 3 - 0673 (non - precedential order), 2015 WL (2016); RSA 631:4, I(d) (2016). We affirmed his convictions on direct appeal. threatening. See RSA 631:2, I(f) (2016); RSA 629:1 (2016); RSA 631:2 - a, I(a) assault, attempted second degree assault, simple assault, and criminal The jury, which was all white, convicted Mallard of second degree

A. Yes, I had makeup on too.

with his fist and that’s what shows in that picture, correct? Q. And so this big guy, this big, menacing black guy hit you

A. Yes.

Q. Twenty - four hours or less?

A. The following night.

Q. I’m sorry?

A. The following night.

Q. S o that was the day -- the next day, correct?

A. My head was turned there.

eye if he didn’t hit you there too? Q. No? So why would your right eye look as dark as your left

A. No.

you there too; did he? Q. Okay. The right eye looks kind of dark too. He didn’t beat

A. It ’s right there.

Q. And where’s the split lip?

A. Yes.

day before; is that correct? saying that shows on your left eye, the bruise that happened the Q. All right. And so even though it’s been darkened up, you’re p. 4 4

jury verdict into question when counsel’s “misstep. . . was limited to a single reasoned that it coul d not find that trial counsel’s reference to race c alled the he was prejudiced by trial counsel’s deficient representation. The court Nevertheless, the court determined that Mallard had failed to prove that

rendered trial counsel’s represent ation constitutionally deficient. explanation at any point during the trial” was irrational and, therefore, determined that saying what trial counsel said “without any further much injustice for so long — was wrong, wrong, wrong.” T he trial court court, “T o conjure up this racist myth — which has been responsible fo r so dangerous” and “played to the jurors’ implicit racial biases.” According to the perpetuated “the pernicious and false stereotype that black men are violent and better impeached by [the] photograph.” Th e court found that doing so had was to amp up the violence of [the victim’s] account so that it could be improper. Period.” The court reasoned that “t he only function the word ‘black’ stated, “T his appeal to the jurors’ explicit or implicit racial biases w as entirely representation by using the p hrase “big, menacing black guy.” As the court Mallard had proved that his trial counsel rendered constitutionally defic ient trial c ourt addressed the merits of Mallard’s claim. The court agreed that Notwithstanding its dismissal of the petition on procedural grounds, the

under something akin to laches.” about his pr esent [claim] for nine years,” Mallard’s petition was “untimely for habeas peti tions,” the trial court determined that by “remain[ing] silent a lthough recognizing that in New Hampshire there is “no statute of limitations drawing on a different line from the same one - day transcript.” In addition, counsel by filing a string of post - conviction motions and petitions, each one habeas petitioner cannot seri ally litigate a claim of ineffective assista nce of — his habeas petition was procedurally barred. The court reasoned that “a trial based on the ineffectiveness of trial counsel — albeit on different grounds finding that because Mallard had “already fully liti gated” a motion for a new to the effective assistance of counsel. The trial court dismissed the petition, examination of the victim, trial counsel deprived him of his constitutional right that, by describing him as a “big, menacing black guy” during cross easy, cheap, expeditious, and ample manner”); RSA ch. 53 p. 4 4. Mallard argued benefit of the Habeas C o rpus, shall be enjoyed in this S tate, in the most free, corp us. See N.H. CONST. p t. II, a rt. 91 (providing that “[t]h e privilege and In July 2020, Mallard petitioned the superior court for a writ of habeas

assaults. The su p erior court denied the motion. examine the victim about friendly text messages she sent after the alleged jealousy as a reaso n for coming forward in the case; and (2) failed to cross instruction that there was no evidence that the victim was motivated by trial counsel was ineffective because counsel: (1) agreed to a curative assistance of counsel. See RSA ch. p. 5 526. Specifically, Mallard argued that his In February 2015, Mallard moved for a new trial on grounds of ineffec tive 5

Therefore, i f a habeas petition is based on a claim that could have been not a substitute for a direct appeal. State v. Kinne, 161 N.H. 41, 4 p. 5 5 (2010). The general rule in New Hampshire is that a petition for habeas corpus is

(2017). We review the court’s legal conclusions de novo. Id. record or are clearly erroneous. State v. Santamaria, 169 N.H. 722, 72 p. 5 5 accept the habeas court’s factual findings unless they lack support in the In an appeal from a denial of a petition for a writ of habeas corpus, we

for a new trial as a petition for writ of habeas corpus.” the consequences of a nine - year procedural default by re - captioning his motion origin al post - conviction proceed ings,” the Warden argues that he “cannot avoid Because Mallard “alleges no new facts or material changes since the time of his the Warden asserts that in this case they are “functionally equivalent.” vehicles” of a motion for new trial and a petition for a writ of habeas corpus, A lthough recognizing that “there may be some variation in the two procedural which he argued that trial counsel was ineffective.” (Quotation omitted.) because he has already fully litigated a counselled motion for a new trial in The Warden counters that Mallard’s claim “is procedurally barred

‘string’ of habeas petitions.” petition for a writ of habeas corpus — “d[i d] not pose the risk of a successi ve separate post - conviction procedures” — direct appeal, motion for new trial, and the application of the other.” Thus, Mallard argues, invoking his “three schemes and procedures” and that “[n]either statutory scheme purports to limit motion for new trial and a habeas petition “involve two distinct statutory trial with a habeas petiti on in finding procedural default. He asserts that a Mallard argues that the trial court erred by conflating a motion for new

A. Procedural Default

these issues in turn. of the proceeding would have been different.” (Quotation omitted.) We address reasonable probability that, but for counsel’s unprofessional errors, the result Mallard argues that the trial court erred in finding that he failed to establish “a court erred in finding his habeas petition was procedurally barred. Seco nd, On appeal, Mallard raises two issues. First, he asserts that the trial

II. Analysis

for reconsideration. This appeal followed. propensity towards violence.” The court subsequently denied Mallard’s motion counsel to be suggesting that Mallard acted in conformity with an innate According to the trial court, “N o reasonable juror would have understood trial issue during his closing argument,” and “[n] o witness picked up on it.” word,” counsel “never expressly argued the stereotype” nor did he “revisit the p. 6 6

see RSA ch. 534. harmful constitutional error could be established, Bonser, 124 N.H. at 807 - 08, collaterally attack trial errors by way of a petition for a writ of habeas corp us if to move for a new trial under RSA chapter 52 p. 6 6, and he was entitled to assistance of counsel on direct appeal, Kinne, 161 N.H. at 45, he was permitted applicable law, Mallard was not required to rais e his claim of ineffective Daigle, 114 N.H. 679, 681 (1974) (quotation and ellipsis omitted). U nder the remedy for constitutional errors at the trial without limit of time.” State v. 526:1 (2007). In contrast, a petition for a writ of habeas corpus “provides a justice has not been done and a further hearing would be e quitable,” RSA 526:4 (2007), “in any case when through accident, mistake or misfortune within three y ears after the rendition of the judgment complained of,” RSA Under RSA chapter 526, a petition for a new trial may be granted, if “filed

new facts material to the issue will ordinarily be summarily disposed of”). (stating that “repeated applications for a writ of habeas corpus introducing no habeas corpus proceedings); cf. Petition of Moebus, 74 N.H. 213, 215 (1907) 451 (1951) (explaining that the doctrine of res judicata does not apply to raised in the two pleadings are different. See Gobin v. Hancock, 9 p. 6 6 N.H. 450, habeas petition, the second petition is not pr ocedurally barred as the issues equivalent of a petition for a writ of habeas corpus, making this his s econd guy.” T hus, even if Mallard’s motion for a new trial were treated as the his trial counsel was ineffecti ve for referring to him as a “big, menacing black about certain text m essages, while the issue in his habeas petition is whether object to a curative instruction and for failing to cross - examine the victim a ne w trial was whether Mallard’s trial counsel was ineffective for failing to both pleading s was ineffective assistance of counsel, the issue in the motion for circumstances presented here. Although the underlying trial error asserted in his petition for a writ of habeas corpus were “functionally equivalent” in th e We disagree with the W arden that Mallard’s motion for a ne w trial and

we have previously considered as part of a petitioner’s original appeal). issue raised under the guise of an ineffective assistance of counsel claim that Warden, 133 N.H. p. 7 727, 732 (1990) (explaining that we will not consider an Courtney, 124 N.H. 79 p. 6 6, 807 - 08 (1984); cf. Humphrey v. Cunningham, establish “harmful constitutional error.” Kinne, 161 N.H. at 45; see Bons er v. corpus after the time for a direct appeal has expired, if the petitioner can appeal and may be raised collaterally by filing a petition for a writ of habeas an allegation of ineffective assistance of counsel need not be raised on direct counsel claims are best brought in a collateral attack). Under that exception, Veale, 154 N.H. 730, 736 (2007) (explaining that ineffective assistance of alleged trial errors. State v. Pepin, 159 N.H. 310, 313 (2009); see State v. general rule involves claims of ineffective assistance of counsel based upon N.H. State Prison, 155 N.H. 160, 162 - 63 (2007). However, an exception to the brought in a direct appeal, it may be pro cedurally barred. Sleeper v. Warden, 7

(200 p. 7 7). upon federal case law only for guidance. State v. Kepple, 155 N.H. 267, 269 competency of counsel’s performance under the State Constitution, and rely the State and Federal Constitutions, we will examine the constitutional pet itioner has received ineffective assistance of counsel is the same under both N.H. 445, 448 (2018). Because the standard for determining whether a prejudice prongs of the ineffectiveness inquiry are met. State v. Wilbur, 171 novo the ultimate determination of whether both the performance and outcome of the case.” State v. Brown, 160 N.H. 408, 412 (2010). We review de deficient” and that “counsel’s deficient performance actually prejudiced the petitioner must show that his “counsel’s representation was constitutionally To successfully asse rt a claim for ineffective assistance of counsel, a ha beas the Federal Constitution. See State v. Thompson, 161 N.H. 507, 528 (2011). the New Hampshire Constitution and the Sixth and Fourteenth Amendments to The effective assistance of counsel is guaranteed by Part I, Article 15 of

B. Ineffective Assistance of Counsel

procedural grounds and address t he merits of Mallard’s habeas claim. Accordingly, we reverse the habeas court’s dismissal of the petition on

threat of trial prejudice.” However, as the habeas court fo und, the Warden “has not alleged any specific years,” the testimony of trial witnesses “would be at least as challenged.” recall details from trial and his own internal thought process after so many on the suf ficiency of trial counsel’ s representation “trial counsel stru ggled to omitted). The Warden simply suggests that, because at the evidentiary hearing bar to suit only if the delay was unreasonable and prejudicia l.” Id. (quotation 49 p. 7 7, 505 (2015). “Because it is an equitable doctrine, laches will constitute a met his burden of proof. See Village Green Condo. Ass ’ n v. Hodges, 167 N.H. could apply to a habeas petition, we would conclude that the Warden has not Furthermore, even if we were to assume without deciding that laches

opportunity to do so, inc luding on direct appeal. Id. at 100. remained silent for four years before raising his objection, despite having the sentencing hearing. Id. at 99 - 100. We further noted that the petitioner had not raising his objections to the sentencing procedures at issue at the t he petitioner had failed to comply with the contemporaneous objection rule by habeas corpus petition was barred. Rather, we rejected the petition because petitioner “unjustifiably remained silent” about his claim for four years, his However, w e did not hold in Roy, as the trial court reasoned, that because the conviction and his petition for a writ of habeas corpus, his petition is untimely. for the proposition that, because nine years have passed between Mallard’s laches. Like the trial court, the Warden cites Roy v. Perrin, 122 N.H. p. 8 88 (1982), We likewise disagree with the Warden that Mallard’s petition is b arred by 8

(quotation omitted). Where the testimony “appealed to a powerful racial references to race as “de minim i s.” Buck v. Davis, 5 p. 8 80 U.S. 100, 121 (2017) T he United States Supreme Court rejected t he characterization of two

evidence for less than three hours. observation is particularly apt in the case before us where the jury heard a forceful reminder.” LeBlanc, 141 N.H. at 5 p. 8 83 (quotation omitted). T his brief, “when an el ephant has passed through the courtroom one does not need LeBlanc, however, despite the fact that a n improper reference to race may be by his own counsel in the middle of witness testimony.” As we recognized in presumed when “this case involved a single fleeting reference to [Mallard’s] race The Warden argues that this is not a case in which prejudice should b e

at 224. unaddressed, would risk systemic injury to the administration of justice.” Id. institutional concerns” and is “a familiar and recurring evil that, if left (2017). R acial bias “implicates unique historical, constitutional, and with added precaution.” Pena - Rodriguez v. Colorado, 5 p. 8 80 U.S. 206, 225 challenges to the trial process [,] . . . there is a sound basis to treat racial bias in a mistrial.” Id. at 583. Mo reover, w hile “[a]ll forms of improper bias pose unusual case in which the invocation of racial or ethnic bias should not result or express, is “an affront to the court” and recognized that “it will be an (1997). We reasoned that a n appeal to bias, whether indirect, implied, direct, a new trial. LeBlanc v. American Honda Motor Co., 141 N.H. 579, 580 - 81 taint the proceedings and deprive the defendant of a fair trial, thereby requiring We held decades ago that i njecting ra cial considerations into a case can

“only heard” the “horrible rac ist trope.” appealed to the jurors’ implicit biases and the court recognized that the jurors itself twice acknowledged that trial counsel’s characterization of Mallard innocence.” Mallard underscores that, in its narrative order, the habeas court decide the case based on [his] race and not on the evidence of his guilt or infected [his] trial and effective ly served as an invitation to the all - white jury to assistance inquiry because trial counsel’s “overt reference to a racial stereotype Mallard asserts that he met the prejudice prong of the ineffective

confidence in the outcome.” Id. trial, a “reasonable probability is a probability sufficient to undermine have been different.” Thompson, 161 N.H. at 52 p. 8 8. In the context of a jury that, but for counsel’s unprofessional errors, the result of the proceeding would constitutio nally deficient representation if “t here is a reasonable probability performance resulted in prejudice. A criminal defendant is prejudiced by otherwise. Thus, the only issue before us is whether that deficien t performance was constitut ionally deficient, as the Warden does not argue On appeal, i t is undisputed that Mallard proved that trial counsel ’s p. 9 9

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

this decision. remand the case to the superior court for further proceedi ngs consistent with his right to effective assistance of counsel and to a fair trial and, therefore, we Federal C onstitution. See id. Mallard is entitled to relief for the deprivation of Because Mallard prevails on his state claim, we need not address the

N.H. at 528. performance actually prejudiced the outcome of the case. S ee Thompson, 161 outcome of his trial, thereby satisfying that his trial counsel’s deficient has established a probabilit y sufficient to undermine confidenc e in the Manchester, 140 N.H. 403, 408 (1 p. 9 995). Accordingly, we conclude that Mallard “horrible racist trope” when reaching its verdict. See Walton v. City of c annot determine the extent to which the jury may have been influenced by the lens for the jury against” the defendant). Under these circumstances, we black guy” and “a big scary black guy,” defense counsel “created a prejudicial 182 N.E.3d 151, 156 (Ill. App. Ct. 2020) (in referring to his client as a “[b]ig State, 768 So. 2d 1247, 12 50 (Fla. Dist. Ct. App. 2000); se e People v. Sanders, the defendant and not on the evidence of his guilt or innocence.” Wallace v. “effectively invited the jury to make a decision based on a characterization of T rial counsel’s improper appeal to racial bias in Mallard’s criminal case

improper reference to race has no place in a courtroom. or a witness because of race or ethnicity” (emphasis added)). Simply, such an subt lety and finesse, that a jury feel solidarity with or animus toward a litigant reversible error occurs whenever any attorney suggests, either openly or with Guerrero, 800 S.W.2d 85 p. 9 9, 866 (Tex. Ct. App. 1990) (holding that “incurable proceeding.” Id. at 124 (quotation omitted); see Texas Employers’ Ins. Ass’n v. prosecution or ineffective defense counsel initially inject ed race into the considered as a factor in our criminal justice system . . . whether the have been a mistrial.” However, “it is inappropriate to allow race to be the prosecutor appealed to the jurors’ implicit racial biases, “the remedy would counsel rather than by the prosecutor. As the habeas court recognized, had reason for treating differently an improper reference to race made by defens e U nder the circumstances presented in this case, w e discern no principled

can be deadly in small doses.” Id. at 122. it received at trial or how many pages it occupies in the record. Some toxins “the impact of that evidence cannot be measured simply by how much air time stereotype — that of black men as ‘violenc e prone,’” id., the Court reasoned that