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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack

No. 2021-0357

MARC MALLARD

v.

WARDEN, NEW HAMPSHIRE STATE PRISON

Argued: April 21, 2022

Opinion Issued: January 4, 2023

Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Donna J. Brown and 

Michael G. Eaton on the brief, and Michael G. Eaton, orally), for the petitioner.

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor 

general (Zachary L. Higham, assistant attorney general, on the brief and orally), 

for the respondent.

MACDONALD, C.J. The petitioner, Marc Mallard, appeals an order of the 

Superior Court (Schulman, J.) dismissing his petition for habeas corpus on 

grounds that it was procedurally defaulted and, even if it were not, that

Mallard failed to demonstrate actual prejudice as a result of his trial counsel’s 

ineffective assistance. We reverse and remand.
2

I. Background

The following facts were found by the trial court or are drawn from the 

record. Mallard was charged with committing acts of domestic violence in 

2012 against a romantic partner. As the trial court described them, Mallard is 

“a large African, American man,” and the victim is “a much smaller white 

woman.” 

A jury trial took place on July 25, 2013. The presentation of evidence 

lasted less than three hours. The central witness was the victim. According to 

her testimony, she and Mallard met in 2006 and began dating six months later. 

In 2008, they decided to have a child together. After the birth of the child, the 

relationship between Mallard and the victim deteriorated.

On the night of the incident that resulted in the charged acts, Mallard 

visited the victim at her home. He was upset because the victim had 

communicated with a woman Mallard was allegedly involved with. According 

to the victim, Mallard punched her in the face, causing her to suffer a black eye 

and a split lip. Mallard then tried to wrap a belt around the victim’s neck, 

threw the victim onto the bed, and started to choke her with his hands.

Mallard suddenly stopped the attack, began to cry, and left the victim’s home. 

The victim did not call the police because she did not want to get Mallard in 

trouble and because she was embarrassed. The victim’s mother, who saw the 

victim the following day, testified that she observed a bruise on the victim’s 

face and was told by the victim that she had drunk alcohol and taken Tylenol 

PM and fallen down in the bathroom. 

Mallard’s defense was that the victim’s accusations were fabricated. 

Trial counsel focused on several facts including that: the victim’s testimony 

was hazy as to how many times she was punched and how long the incident 

lasted; when she spoke with a police officer approximately one month later the 

victim was unsure which side of her face had been bruised; the victim 

continued a friendly relationship with Mallard after the assault and sent him 

text messages saying that she loved him; there was no evidence of injuries 

related to the attempted strangulation; and the bruise on the victim’s face in a 

photograph taken the following day was inconsistent with the victim’s claim 

that she had been punched in the face by a large, strong man using great force.

During trial counsel’s cross-examination of the victim regarding the 

incongruity between the photograph of her injury and her account of the 

assault, the following exchange took place:

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

A. It’s a printout from my cell phone, so it’s probably, actually, 

about right.
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Q. All right. And so even though it’s been darkened up, you’re 

saying that shows on your left eye, the bruise that happened the 

day before; is that correct?

A. Yes.

Q. And where’s the split lip?

A. It’s right there.

Q. Okay. The right eye looks kind of dark too. He didn’t beat 

you there too; did he?

A. No.

Q. No? So why would your right eye look as dark as your left 

eye if he didn’t hit you there too?

A. My head was turned there.

Q. So that was the day -- the next day, correct?

A. The following night.

Q. I’m sorry?

A. The following night.

Q. Twenty-four hours or less?

A. Yes.

Q. And so this big guy, this big, menacing black guy hit you 

with his fist and that’s what shows in that picture, correct?

A. Yes, I had makeup on too.

The jury, which was all white, convicted Mallard of second degree 

assault, attempted second degree assault, simple assault, and criminal 

threatening. See RSA 631:2, I(f) (2016); RSA 629:1 (2016); RSA 631:2-a, I(a) 

(2016); RSA 631:4, I(d) (2016). We affirmed his convictions on direct appeal. 

See State v. Mallard, No. 2013-0673 (non-precedential order), 2015 WL 

11071107 (N.H. January 21, 2015). Mallard is currently serving a sentence of 

seven to fourteen years in the state prison plus a consecutive term of three to 

six years, which includes a sentence on charges unrelated to this case.
4

In February 2015, Mallard moved for a new trial on grounds of ineffective 

assistance of counsel. See RSA ch. 526. Specifically, Mallard argued that his

trial counsel was ineffective because counsel: (1) agreed to a curative 

instruction that there was no evidence that the victim was motivated by 

jealousy as a reason for coming forward in the case; and (2) failed to crossexamine the victim about friendly text messages she sent after the alleged 

assaults. The superior court denied the motion.

In July 2020, Mallard petitioned the superior court for a writ of habeas 

corpus. See N.H. CONST. pt. II, art. 91 (providing that “[t]he privilege and 

benefit of the Habeas Corpus, shall be enjoyed in this State, in the most free, 

easy, cheap, expeditious, and ample manner”); RSA ch. 534. Mallard argued 

that, by describing him as a “big, menacing black guy” during crossexamination of the victim, trial counsel deprived him of his constitutional right 

to the effective assistance of counsel. The trial court dismissed the petition, 

finding that because Mallard had “already fully litigated” a motion for a new 

trial based on the ineffectiveness of trial counsel — albeit on different grounds 

— his habeas petition was procedurally barred. The court reasoned that “a 

habeas petitioner cannot serially litigate a claim of ineffective assistance of 

counsel by filing a string of post-conviction motions and petitions, each one 

drawing on a different line from the same one-day transcript.” In addition, 

although recognizing that in New Hampshire there is “no statute of limitations 

for habeas petitions,” the trial court determined that by “remain[ing] silent 

about his present [claim] for nine years,” Mallard’s petition was “untimely

under something akin to laches.” 

Notwithstanding its dismissal of the petition on procedural grounds, the 

trial court addressed the merits of Mallard’s claim. The court agreed that 

Mallard had proved that his trial counsel rendered constitutionally deficient 

representation by using the phrase “big, menacing black guy.” As the court 

stated, “This appeal to the jurors’ explicit or implicit racial biases was entirely 

improper. Period.” The court reasoned that “the only function the word ‘black’

had was to amp up the violence of [the victim’s] account so that it could be 

better impeached by [the] photograph.” The court found that doing so

perpetuated “the pernicious and false stereotype that black men are violent and 

dangerous” and “played to the jurors’ implicit racial biases.” According to the 

court, “To conjure up this racist myth — which has been responsible for so 

much injustice for so long — was wrong, wrong, wrong.” The trial court 

determined that saying what trial counsel said “without any further 

explanation at any point during the trial” was irrational and, therefore,

rendered trial counsel’s representation constitutionally deficient. 

Nevertheless, the court determined that Mallard had failed to prove that 

he was prejudiced by trial counsel’s deficient representation. The court 

reasoned that it could not find that trial counsel’s reference to race called the 

jury verdict into question when counsel’s “misstep . . . was limited to a single 
5

word,” counsel “never expressly argued the stereotype” nor did he “revisit the 

issue during his closing argument,” and “[n]o witness picked up on it.” 

According to the trial court, “No reasonable juror would have understood trial 

counsel to be suggesting that Mallard acted in conformity with an innate 

propensity towards violence.” The court subsequently denied Mallard’s motion 

for reconsideration. This appeal followed.

II. Analysis

On appeal, Mallard raises two issues. First, he asserts that the trial 

court erred in finding his habeas petition was procedurally barred. Second, 

Mallard argues that the trial court erred in finding that he failed to establish “a 

reasonable probability that, but for counsel’s unprofessional errors, the result 

of the proceeding would have been different.” (Quotation omitted.) We address 

these issues in turn. 

A. Procedural Default

Mallard argues that the trial court erred by conflating a motion for new 

trial with a habeas petition in finding procedural default. He asserts that a 

motion for new trial and a habeas petition “involve two distinct statutory 

schemes and procedures” and that “[n]either statutory scheme purports to limit 

the application of the other.” Thus, Mallard argues, invoking his “three 

separate post-conviction procedures” — direct appeal, motion for new trial, and 

petition for a writ of habeas corpus —“d[id] not pose the risk of a successive 

‘string’ of habeas petitions.” 

The Warden counters that Mallard’s claim “is procedurally barred 

because he has already fully litigated a counselled motion for a new trial in 

which he argued that trial counsel was ineffective.” (Quotation omitted.) 

Although recognizing that “there may be some variation in the two procedural 

vehicles” of a motion for new trial and a petition for a writ of habeas corpus, 

the Warden asserts that in this case they are “functionally equivalent.” 

Because Mallard “alleges no new facts or material changes since the time of his 

original post-conviction proceedings,” the Warden argues that he “cannot avoid 

the consequences of a nine-year procedural default by re-captioning his motion 

for a new trial as a petition for writ of habeas corpus.”

In an appeal from a denial of a petition for a writ of habeas corpus, we 

accept the habeas court’s factual findings unless they lack support in the 

record or are clearly erroneous. State v. Santamaria, 169 N.H. 722, 725 

(2017). We review the court’s legal conclusions de novo. Id. 

The general rule in New Hampshire is that a petition for habeas corpus is 

not a substitute for a direct appeal. State v. Kinne, 161 N.H. 41, 45 (2010). 

Therefore, if a habeas petition is based on a claim that could have been 
6

brought in a direct appeal, it may be procedurally barred. Sleeper v. Warden, 

N.H. State Prison, 155 N.H. 160, 162-63 (2007). However, an exception to the 

general rule involves claims of ineffective assistance of counsel based upon 

alleged trial errors. State v. Pepin, 159 N.H. 310, 313 (2009); see State v. 

Veale, 154 N.H. 730, 736 (2007) (explaining that ineffective assistance of 

counsel claims are best brought in a collateral attack). Under that exception, 

an allegation of ineffective assistance of counsel need not be raised on direct 

appeal and may be raised collaterally by filing a petition for a writ of habeas 

corpus after the time for a direct appeal has expired, if the petitioner can 

establish “harmful constitutional error.” Kinne, 161 N.H. at 45; see Bonser v.

Courtney, 124 N.H. 796, 807-08 (1984); cf. Humphrey v. Cunningham, 

Warden, 133 N.H. 727, 732 (1990) (explaining that we will not consider an 

issue raised under the guise of an ineffective assistance of counsel claim that 

we have previously considered as part of a petitioner’s original appeal).

We disagree with the Warden that Mallard’s motion for a new trial and 

his petition for a writ of habeas corpus were “functionally equivalent” in the 

circumstances presented here. Although the underlying trial error asserted in 

both pleadings was ineffective assistance of counsel, the issue in the motion for 

a new trial was whether Mallard’s trial counsel was ineffective for failing to 

object to a curative instruction and for failing to cross-examine the victim 

about certain text messages, while the issue in his habeas petition is whether 

his trial counsel was ineffective for referring to him as a “big, menacing black 

guy.” Thus, even if Mallard’s motion for a new trial were treated as the 

equivalent of a petition for a writ of habeas corpus, making this his second 

habeas petition, the second petition is not procedurally barred as the issues

raised in the two pleadings are different. See Gobin v. Hancock, 96 N.H. 450, 

451 (1951) (explaining that the doctrine of res judicata does not apply to 

habeas corpus proceedings); cf. Petition of Moebus, 74 N.H. 213, 215 (1907) 

(stating that “repeated applications for a writ of habeas corpus introducing no 

new facts material to the issue will ordinarily be summarily disposed of”). 

Under RSA chapter 526, a petition for a new trial may be granted, if “filed 

within three years after the rendition of the judgment complained of,” RSA 

526:4 (2007), “in any case when through accident, mistake or misfortune 

justice has not been done and a further hearing would be equitable,” RSA 

526:1 (2007). In contrast, a petition for a writ of habeas corpus “provides a 

remedy for constitutional errors at the trial without limit of time.” State v.

Daigle, 114 N.H. 679, 681 (1974) (quotation and ellipsis omitted). Under the 

applicable law, Mallard was not required to raise his claim of ineffective 

assistance of counsel on direct appeal, Kinne, 161 N.H. at 45, he was permitted 

to move for a new trial under RSA chapter 526, and he was entitled to 

collaterally attack trial errors by way of a petition for a writ of habeas corpus if 

harmful constitutional error could be established, Bonser, 124 N.H. at 807-08, 

see RSA ch. 534. 
7

We likewise disagree with the Warden that Mallard’s petition is barred by 

laches. Like the trial court, the Warden cites Roy v. Perrin, 122 N.H. 88 (1982),

for the proposition that, because nine years have passed between Mallard’s 

conviction and his petition for a writ of habeas corpus, his petition is untimely. 

However, we did not hold in Roy, as the trial court reasoned, that because the 

petitioner “unjustifiably remained silent” about his claim for four years, his

habeas corpus petition was barred. Rather, we rejected the petition because 

the petitioner had failed to comply with the contemporaneous objection rule by

not raising his objections to the sentencing procedures at issue at the 

sentencing hearing. Id. at 99-100. We further noted that the petitioner had 

remained silent for four years before raising his objection, despite having the 

opportunity to do so, including on direct appeal. Id. at 100.

Furthermore, even if we were to assume without deciding that laches 

could apply to a habeas petition, we would conclude that the Warden has not 

met his burden of proof. See Village Green Condo. Ass’n v. Hodges, 167 N.H. 

497, 505 (2015). “Because it is an equitable doctrine, laches will constitute a 

bar to suit only if the delay was unreasonable and prejudicial.” Id. (quotation 

omitted). The Warden simply suggests that, because at the evidentiary hearing 

on the sufficiency of trial counsel’s representation “trial counsel struggled to 

recall details from trial and his own internal thought process after so many 

years,” the testimony of trial witnesses “would be at least as challenged.” 

However, as the habeas court found, the Warden “has not alleged any specific 

threat of trial prejudice.”

Accordingly, we reverse the habeas court’s dismissal of the petition on 

procedural grounds and address the merits of Mallard’s habeas claim.

B. Ineffective Assistance of Counsel

The effective assistance of counsel is guaranteed by Part I, Article 15 of 

the New Hampshire Constitution and the Sixth and Fourteenth Amendments to 

the Federal Constitution. See State v. Thompson, 161 N.H. 507, 528 (2011). 

To successfully assert a claim for ineffective assistance of counsel, a habeas 

petitioner must show that his “counsel’s representation was constitutionally 

deficient” and that “counsel’s deficient performance actually prejudiced the 

outcome of the case.” State v. Brown, 160 N.H. 408, 412 (2010). We review de

novo the ultimate determination of whether both the performance and 

prejudice prongs of the ineffectiveness inquiry are met. State v. Wilbur, 171 

N.H. 445, 448 (2018). Because the standard for determining whether a 

petitioner has received ineffective assistance of counsel is the same under both 

the State and Federal Constitutions, we will examine the constitutional 

competency of counsel’s performance under the State Constitution, and rely 

upon federal case law only for guidance. State v. Kepple, 155 N.H. 267, 269 

(2007). 
8

On appeal, it is undisputed that Mallard proved that trial counsel’s 

performance was constitutionally deficient, as the Warden does not argue 

otherwise. Thus, the only issue before us is whether that deficient 

performance resulted in prejudice. A criminal defendant is prejudiced by 

constitutionally deficient representation if “there is a reasonable probability 

that, but for counsel’s unprofessional errors, the result of the proceeding would 

have been different.” Thompson, 161 N.H. at 528. In the context of a jury 

trial, a “reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” Id.

Mallard asserts that he met the prejudice prong of the ineffective

assistance inquiry because trial counsel’s “overt reference to a racial stereotype 

infected [his] trial and effectively served as an invitation to the all-white jury to 

decide the case based on [his] race and not on the evidence of his guilt or 

innocence.” Mallard underscores that, in its narrative order, the habeas court 

itself twice acknowledged that trial counsel’s characterization of Mallard 

appealed to the jurors’ implicit biases and the court recognized that the jurors 

“only heard” the “horrible racist trope.”

We held decades ago that injecting racial considerations into a case can

taint the proceedings and deprive the defendant of a fair trial, thereby requiring 

a new trial. LeBlanc v. American Honda Motor Co., 141 N.H. 579, 580-81 

(1997). We reasoned that an appeal to bias, whether indirect, implied, direct, 

or express, is “an affront to the court” and recognized that “it will be an 

unusual case in which the invocation of racial or ethnic bias should not result 

in a mistrial.” Id. at 583. Moreover, while “[a]ll forms of improper bias pose 

challenges to the trial process[,] . . . there is a sound basis to treat racial bias 

with added precaution.” Pena-Rodriguez v. Colorado, 580 U.S. 206, 225

(2017). Racial bias “implicates unique historical, constitutional, and 

institutional concerns” and is “a familiar and recurring evil that, if left 

unaddressed, would risk systemic injury to the administration of justice.” Id.

at 224.

The Warden argues that this is not a case in which prejudice should be 

presumed when “this case involved a single fleeting reference to [Mallard’s] race 

by his own counsel in the middle of witness testimony.” As we recognized in 

LeBlanc, however, despite the fact that an improper reference to race may be

brief, “when an elephant has passed through the courtroom one does not need 

a forceful reminder.” LeBlanc, 141 N.H. at 583 (quotation omitted). This

observation is particularly apt in the case before us where the jury heard 

evidence for less than three hours.

The United States Supreme Court rejected the characterization of two 

references to race as “de minimis.” Buck v. Davis, 580 U.S. 100, 121 (2017) 

(quotation omitted). Where the testimony “appealed to a powerful racial 
9

stereotype—that of black men as ‘violence prone,’” id., the Court reasoned that 

“the impact of that evidence cannot be measured simply by how much air time 

it received at trial or how many pages it occupies in the record. Some toxins 

can be deadly in small doses.” Id. at 122.

Under the circumstances presented in this case, we discern no principled 

reason for treating differently an improper reference to race made by defense 

counsel rather than by the prosecutor. As the habeas court recognized, had 

the prosecutor appealed to the jurors’ implicit racial biases, “the remedy would 

have been a mistrial.” However, “it is inappropriate to allow race to be 

considered as a factor in our criminal justice system . . . whether the 

prosecution or ineffective defense counsel initially injected race into the 

proceeding.” Id. at 124 (quotation omitted); see Texas Employers’ Ins. Ass’n v. 

Guerrero, 800 S.W.2d 859, 866 (Tex. Ct. App. 1990) (holding that “incurable 

reversible error occurs whenever any attorney suggests, either openly or with 

subtlety and finesse, that a jury feel solidarity with or animus toward a litigant 

or a witness because of race or ethnicity” (emphasis added)). Simply, such an 

improper reference to race has no place in a courtroom.

Trial counsel’s improper appeal to racial bias in Mallard’s criminal case

“effectively invited the jury to make a decision based on a characterization of 

the defendant and not on the evidence of his guilt or innocence.” Wallace v. 

State, 768 So. 2d 1247, 1250 (Fla. Dist. Ct. App. 2000); see People v. Sanders, 

182 N.E.3d 151, 156 (Ill. App. Ct. 2020) (in referring to his client as a “[b]ig 

black guy” and “a big scary black guy,” defense counsel “created a prejudicial 

lens for the jury against” the defendant). Under these circumstances, we 

cannot determine the extent to which the jury may have been influenced by the 

“horrible racist trope” when reaching its verdict. See Walton v. City of 

Manchester, 140 N.H. 403, 408 (1995). Accordingly, we conclude that Mallard 

has established a probability sufficient to undermine confidence in the 

outcome of his trial, thereby satisfying that his trial counsel’s deficient 

performance actually prejudiced the outcome of the case. See Thompson, 161 

N.H. at 528.

Because Mallard prevails on his state claim, we need not address the 

Federal Constitution. See id. Mallard is entitled to relief for the deprivation of 

his right to effective assistance of counsel and to a fair trial and, therefore, we 

remand the case to the superior court for further proceedings consistent with 

this decision.

Reversed and remanded.

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