Martinez v. Kirkpatrick
Filing
61
MEMORANDUM-DECISION AND ORDER: The Court hereby ORDERS that Petitioner's petition for a writ of habeas corpus is DENIED and DISMISSED; and the Court further ORDERS that no Certificate of Appealability shall be issued with respect to any of Petit ioner's claims; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules; and the Court further ORDERS that the Clerk of the Court shall enter judgment in Respondent's favor and close this case. Signed by U.S. District Judge Mae A. D'Agostino on 5/22/13. (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
CHRISTOPHER MARTINEZ,
Petitioner,
vs.
9:09-cv-900
(MAD)
ROBERT KIRKPATRICK, Superintendent,
Wende Correctional Facility,
Respondent.
____________________________________________
APPEARANCES:
OF COUNSEL:
OFFICE OF FREDERICK RENCH, PLLC
646 Plank Road
Suite 204
Clifton Park, New York 12065
Attorneys for Petitioner
FREDERICK RENCH, ESQ.
OFFICE OF THE NEW YORK STATE
ATTORNEY GENERAL
One Civic Center Plaza
Poughkeepsie, New York 12601
Attorneys for Respondent
LEILANI J. RODRIGUEZ, ESQ.
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Petitioner is an inmate in the custody of the New York State Department of Corrections
and Community Supervision ("DOCCS") at Shawangunk Correctional Facility. Petitioner was
convicted, following a jury trial in Oneida County Court, of second degree intentional murder
(N.Y. Penal Law § 125.25(1)), first degree assault (N.Y. Penal Law § 120.10(1)), and second
degree criminal possession of a weapon (N.Y. Penal Law § 265.03(2)). See Dkt. No. 1 at 1; Dkt.
No. 13-15 at 726-28.
On August 6, 2009, Petitioner filed a pro se petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. See Dkt. No. 1. The petition claimed, among other things, that Petitioner
was denied effective assistance of counsel due to his trial counsel's drug addiction and the conflict
of interest resulting from his trial counsel's investigation and prosecution. On May 10, 2011, the
Court dismissed the petition. See Dkt. No. 35. Specifically, the Court rejected Petitioner's
ineffective assistance of counsel claim and found that no per se, actual, or potential conflict of
interest existed between Petitioner and his attorney (Robert R. Moran). See id. at 33-36.
On August 18, 2011, the Second Circuit granted a certificate of appealability "solely on
the issue of whether Martinez was denied effective assistance of counsel due to a conflict of
interest presented by the investigation and prosecution of Moran by the same district attorney's
office that prosecuted Martinez." See Dkt. No. 40 at 3. In a summary order and mandate issued
on July 19, 2012, the Second Circuit found that this Court erred in finding that Petitioner's
conflict of interest claim was adjudicated on the merits in state court and, therefore, no
evidentiary hearing was required for the Court to dispose of that claim. See id. at 5. As such, the
Second Circuit remanded the case "solely for the purpose of an evidentiary hearing to determine
whether an actual or potential conflict of interest existed and, if so, whether the conflict adversely
affected Moran's representation." See id.
On January 3, 2013, the Court held an evidentiary hearing and permitted the parties to file
both pre- and post-hearing memoranda. The petition is now ripe for disposition on the issues for
which it was remanded by the Circuit.
II. BACKGROUND
A.
Indictment and pretrial proceedings
On February 5, 2003, Petitioner was indicted for second degree intentional murder (N.Y.
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PENAL LAW § 125.25(1)), second degree depraved indifference murder (N.Y. PENAL LAW §
125.25(2)), first degree intentional assault (N.Y. PENAL LAW § 120.10(1)), first degree depraved
indifference assault (N.Y. PENAL LAW § 120.10(2)), and second degree criminal possession of a
weapon (N.Y. PENAL LAW § 265.03(2)). See Dkt. No. 12 at 5; Dkt. No. 13-1 at 5.
On April 10, 2003, a Wade/Huntley1 hearing was held to determine the admissibility of
photographic array identification procedures and Petitioner's statements to police. See Dkt. No.
13-15 at 14-64.2 At the hearing, the prosecutor conceded that Petitioner's statements were not
admissible in his case in chief because Petitioner requested an attorney and was not provided with
one prior to making the statements. See id. at 59-60. The trial court ruled that Petitioner's
statements were only admissible for impeachment purposes if Petitioner testified. See id. at 60. It
also ultimately ruled that because the photographic identification procedures were not unduly
suggestive or prejudicial, witnesses would be permitted to make in-court identifications of
Petitioner. See Dkt. No. 13-1 at 57.
B.
The trial3
A jury trial was held from June 9, 2003 to June 13, 2003 before Judge Barry Donalty. The
prosecutor was Paul Hernon of the Oneida County District Attorney's Office, and Petitioner was
represented by Robert Moran. According to the testimony adduced at trial, on November 27,
2002, Petitioner and his friend visited Jennifer Halwig, Petitioner's fiancee, before going out for
1
United States v. Wade, 388 U.S. 218 (1967); People v. Huntley,15 N.Y.2d 72 (1965).
Unless otherwise noted, the facts contained in the "Background" section of this
Memorandum-Decision and Order are undisputed.
2
3
The facts presented in this section are taken from the testimony presented at Petitioner's
trial.
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the evening. See Dkt. No. 13-15 at 418-20. Petitioner was wearing a red baseball cap. See id. at
420.
On November 28, 2002, at approximately 12:30 a.m., Lee Ann Schavone was at
Anthony's Bar in Utica, New York. See id. at 313-16. The victim, Gregory Moore, approached
her and was bothering her. See id. at 315-16. Petitioner, who was wearing a red hat or bandanna,
intervened and told Moore to leave Schavone alone. See id. at 316-17, 330. Moore grabbed
Petitioner's gold chain and asked Petitioner what he was "going to do." See id. at 317. Petitioner
did not respond, and eventually Petitioner and Moore separated. See id. at 318-19, 330-31.
Schavone did not see Moore or Petitioner with a gun. See id. at 317-18, 331.
Schavone eventually left the bar, got into her truck, and pulled up to the front of the bar to
wait for friends. See Dkt. No. 13-15 at 319-20. Once there, Schavone got out of her truck and
talked to some friends on the side of the building. See id. at 321. As she returned to her truck,
she saw Petitioner, who appeared nervous. See id. at 322. When she asked Petitioner if he was
going to fight with Moore, Petitioner responded that he was not, and told Schavone to leave. See
id. at 322-23, 333. As Schavone walked toward her truck, she heard gunshots, and then saw
Moore lying on the ground. See id. at 323. At this point, Schavone got into her truck and left.
See id.
On the night in question, Raymond Harris was also at Anthony's Bar. See Dkt. No. 13-15
at 280-85. Moore asked Harris for a ride, and at approximately 2:00 a.m., Harris left the bar to
see if Moore was waiting for him outside. See id. at 282. Harris heard a gunshot, and saw Moore
fall to the ground. See id. at 285-86, 299-300, 336-39, 341-43, 350-51. According to Harris,
Petitioner was standing several feet away from Moore and was pointing a gun at him. See id. at
286, 294, 309-310, 345, 402. Harris turned to go back inside the bar, heard a second gunshot, and
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felt a sensation in his arm. See id. at 286-87. Once he was inside the bar, Harris heard three or
four more gunshots. See id. at 287. Harris testified that he thought Petitioner was wearing a blue
baseball cap, but was not certain of the color. See id. at 289, 291, 298. Harris identified
Petitioner's picture in a photo array prepared by police one day after the shooting. See id. at 308,
310-12.
Harris suffered a gunshot wound that passed through the soft tissue of the left side of his
chest and through his left arm. See Dkt. No. 13-15 at 288, 291-93, 359-62, 502-507. He spent
three or four days in the hospital, suffered nerve damage, and, at the time of trial, he continued to
have no sensation in two fingers on his left hand. See id. at 292-93, 554-58. Police recovered
five small, clear baggies containing a white powdery substance from the zippered part of the
sleeve of Harris's coat. See id. at 372-73. Harris denied knowledge of the baggies, and denied
being at the bar to sell drugs. See id. at 297, 300.
Moore died from injuries sustained as a result of the shooting. See Dkt. No. 13-15 at 23335, 580-93, 596-99. Five projectiles and one bullet fragment were recovered from his body. See
id. at 588-89. No weapon was found on or near Moore's body, and no shell casings were
recovered. See id. at 241-42, 267, 349, 353, 389.
At around 3:00 a.m. on November 28, 2002, Jennifer Halwig received a telephone call
from Petitioner's aunt, Nancy Reyes. See Dkt. No. 13-15 at 424. Reyes heard about the shooting
and was worried because she did not know if Petitioner was out that evening. See id. Halwig
called Petitioner, and when they eventually spoke at around 4:00 a.m., Petitioner told Halwig he
was with friends and that he would call her later in the morning. See id. at 425-28.
At approximately 3:00 a.m., Petitioner visited Wykenda Barnes at her apartment located
on the first floor of the Brandagee Apartments in Utica. See id. at 534-36. Barnes retrieved her
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coat, and when she returned to the door to meet Petitioner, he was speaking with Peter Nieves,
who lived in an apartment on the third floor of the complex. See id. at 499-500, 538-39.
Petitioner and Barnes left the apartment building and got into a car driven by Petitioner's aunt,
Nancy Reyes. See id. at 538-39. Petitioner told his aunt to get him home and "off the street." See
id. at 541-42. Petitioner was rubbing his head and seemed nervous, like something was bothering
him. See id. at 541-42. Petitioner left the apartment at approximately 9:30 a.m. with Victor
Arimont, Reyes's fiancé. See id. at 547.
According to Peter Nieves, he was asleep in his apartment on the third floor of the
Brandagee Apartments when he was awakened by the security buzzer for his apartment. See id.
at 449-52. When he arrived in the lobby, he saw Petitioner and Wykenda Barnes, another
resident of the apartment complex. See id. at 452. Nieves shook hands with Petitioner, spoke to
him briefly, and returned to his apartment. See id.
At trial, Nieves testified that he did not remember the specific conversation he had with
Petitioner. See id. at 454-55. Nieves testified that he was taking controlled substances for health
issues and depression and could not "remember exactly what [he] said." See id. at 453. Nieves
remembered testifying at the grand jury, but when he was asked if his grand jury testimony
refreshed his recollection regarding the conversation he had with Petitioner, Nieves stated that he
did not "remember having this conversation exactly in [his] head." See id. at 455. He denied
being threatened not to testify by Petitioner or his associates, but admitted that he called the
prosecutor and told him about an incident where he was walking toward a store and an unknown
person in a car tried to cut his arm and tried to pull him into the car. See id. at 455-56. The
prosecutor was granted permission, over trial counsel's objection, to treat Nieves as a hostile
witness. See id. at 457.
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Nieves denied knowledge of the content of his statement to police or his grand jury
testimony. See id. at 458-80. He testified that he was taking drugs and did not remember telling
police that Petitioner told Nieves he was in trouble, that someone tried to take his chain, that
Petitioner shot someone, or that Petitioner made a gesture with his hand across his neck. See id.
at 458, 461-62, 479-80. Nieves testified that the police found him at work and asked him to come
to the police station to answer questions about Petitioner. See id. at 472-73. Nieves testified that
he went home, met his wife and daughter, and the three of them walked to the police station. See
id. at 473-74.
When he arrived at the police station, Nieves testified that the police told him they had a
tape of his meeting with Petitioner in the lobby of the apartment building, and that Petitioner
made a gesture with his hand. See Dkt. No. 13-15 at 462-64, 476. Nieves denied telling police
that the gesture meant that the victim was dead. See id. at 463. Nieves claimed that he signed his
statement to police without reading it because he wanted to leave the police station, and he did
not remember placing his initials at various places in the statement. See id. at 459-61. Nieves
further testified that he did not recall telling the grand jury that Petitioner told him that he shot
someone. See id. at 476-78. Nieves testified that on the morning he was scheduled to testify at
trial, his brother-in-law told him, "[i]f you can't remember, you can't remember." See id. at 46566. Nieves also testified that he told a different prosecutor before trial that he could not
remember his conversation with Petitioner, and that the prosecutor told him that he could not
force Nieves to remember. See id. at 465.
On cross-examination, Nieves testified that the prosecutor threatened him with perjury
charges, and that the prosecutor told him he was not telling the truth when he said he could not
remember. See id. at 483. Under further questioning by the prosecutor, Nieves clarified that the
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prosecutor told him to tell the truth, and stated that if he did not, he could face perjury charges.
See id. at 483-84.
The testimony at trial also established that, on November 28, 2002, at approximately
11:00 a.m., Petitioner called Halwig and informed her that he was not going to Halwig's
grandmother's house for Thanksgiving dinner. Instead, he was going to celebrate the holiday with
his relatives in New York City. See id. at 422-24.
Bystanders interviewed at the scene of the shooting gave police conflicting information.
See id. at 392. In addition to the information provided by Harris and other witnesses, police were
informed by unidentified bystanders that the shooter got out of a vehicle, shot Moore twice, then
fired two more shots at Moore once he collapsed, and that the shooter then left in the vehicle. See
id. at 254-56, 392-98. One unidentified bystander told police that the gunshots were fired from
inside a vehicle, see id. at 268, and another told police that the shooter left the scene in a silver
Nissan. See id. at 254. Police also received conflicting descriptions of the suspect's clothing. See
id. at 522, 526-28. Daniel Doyle, Michael Davis, and Hans Kunz testified that they witnessed the
shooting, but could not identify the shooter. Each testified that the shooter approached Moore on
foot, shot him at close range, and that after Moore was shot and collapsed, the shooter fired
additional shots. See id. at 335-40, 344-46, 349-52, 356, 400-05. Kunz also testified that the
shooter was wearing a red bandanna. See id. at 402, 409. Approximately twenty-five people
were shown photo arrays, but only Harris identified Petitioner. See id. at 528.
Petitioner became a suspect in the shootings on November 29, 2002, after police spoke
with Jennifer Halwig's mother. See id. at 515, 518-19. Police discovered that Petitioner did not
have a valid New York State pistol permit. See id. at 498. On November 30, 2002, police spoke
with Nancy Reyes and charged her with hindering prosecution. See id. at 515-16. Petitioner was
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eventually found in New York City, and on December 22, 2002, members of the Utica Police
Department transported Petitioner back to Utica to face charges. See id. at 518.
At the close of the People's proof, Petitioner's trial counsel, Robert Moran, moved to
dismiss the murder charges on the ground that there was no proof that Petitioner shot Moore. See
id. at 602-605. The trial court dismissed the depraved indifference murder and assault charges
(counts two and four of the indictment), but denied Moran's motion to dismiss the remaining
counts. See id. at 604-06.
Moran then called Victor Arimont to testify on Petitioner's behalf. Arimont testified that
Petitioner and his family made plans to travel to New York City approximately one week prior to
the shooting. See id. at 607-09. Arimont picked Petitioner up on November 28, 2002 at
approximately 9:30 a.m., and took him to Reyes' home to pack for the trip. See id. at 610-12.
Petitioner, Reyes, and several children left for New York City at approximately 11:30 a.m. See
id. at 612. Petitioner called no other witnesses and rested. See id. at 617.
The jury began its deliberations on June 12, 2003. On June 13, 2003, the jury convicted
Petitioner of second degree intentional murder, first degree intentional assault, and second degree
criminal possession of a weapon. See id. at 726-28.
C.
Post-trial
In August 2003, after Petitioner's trial but before Petitioner was sentenced, Moran was
arrested and charged with third degree criminal possession of a controlled substance. See Dkt.
No. 13-1 at 58. Upon Moran's arrest, Petitioner retained Anthony LaFache to represent him. See
id.
On February 19, 2004, LaFache filed a motion to set aside the verdict in which he argued
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that Moran had been using methamphetamine during Petitioner's trial and, as a result, Moran was
ineffective for failing to (1) properly prepare for trial; (2) meet with Petitioner; (3) question Harris
about his use of drugs at the time of the shooting and any favorable treatment he may have
received in exchange for his testimony; and (4) hire an investigator despite being paid to do so.
See id. at 21-22, 59; Dkt. No. 13-6 at 5-6.4 LaFache also argued that Moran was under the
influence of methamphetamine throughout his representation of Petitioner. See id. Finally,
LaFache argued that it violated Petitioner's right to a fair trial "not to have advised him of the
ongoing investigation of his attorney while the trial was proceeding." See id. at 22. In response,
the prosecution argued that there was no proof that Moran used drugs during his representation of
Petitioner, or that any alleged drug use impaired Moran's ability to represent Petitioner. See id. at
59-60.
On March 3, 2004, the trial court denied LaFache's motion, finding that there was no proof
Moran was under the influence of drugs during the trial, and that Moran diligently represented
Petitioner. See id. at 23, 60; Dkt. No. 13-6 at 6-7.
On March 17, 2004, Petitioner was sentenced to serve a term of twenty-five years to life
for his second degree murder conviction, a consecutive determinate term of twenty-five years in
prison followed by five-years post-release supervision for his first degree assault conviction, and
a consecutive determinate term of fifteen years in prison followed by three years post-release
supervision for his criminal possession of a weapon conviction. See Dkt. No. 13-15 at 739-40.
On March 18, 2004, Petitioner filed a notice of appeal. See Dkt. No. 13-1 at 60. On May
No copy of LaFache's motion was provided to the Court. The information regarding the
motion, the prosecutor's response and the trial court's decision on the motion was taken from
Petitioner's brief on direct appeal and from Petitioner's counseled section 440 motion. See Dkt.
No. 13-1 at 59-60; Dkt. No. 13-6 at 4-9.
4
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31, 2006, before his direct appeal was perfected, Petitioner's appellate counsel filed a motion to
vacate his conviction pursuant to New York Criminal Procedure Law ("CPL") §440.10. See id. at
60-61; Dkt. No. 13-6 at 2-9. In the motion, appellate counsel explained that on April 27, 2004,
Moran pleaded guilty to third degree criminal possession of a controlled substance in Oneida
County Court and was sentenced on December 1, 2004, to serve eight and one-half to twenty-five
years in prison. See Dkt. No. 13-6 at 7-8. During his plea colloquy, Moran admitted that he
purchased methamphetamine in Phoenix, Arizona, transported it back to Oneida County, and that
when he was arrested, he was in possession of five and one-half ounces of methamphetamine in
his jacket pocket. See id. at 7. At sentencing, Moran admitted that he became addicted to
methamphetamine. See id. at 8. Further, Moran stated that he thought he had control over the
drug and that it allowed him to work longer and faster and to remain focused, but that over time
the drug controlled him and he could not stop using it. See id. at 8. He also stated that he became
drug-free after he was arrested and was admitted to a drug treatment center. See id. Petitioner's
appellate counsel argued that, based on Moran's statements, his drug use was no longer
speculative and that it had adversely impacted Moran's representation of Petitioner. See id. at 8-9.
The trial court denied Petitioner's counseled section 440 motion on August 31, 2006,
without a hearing, concluding that "based upon the entire record of these proceedings, and the
lack of any facts in [Petitioner's] motion which would warrant a hearing upon the motion, . . .
[Petitioner] was provided with more than meaningful representation in this matter." See Dkt. No.
13-8 at 2-6 (citation omitted). On February 2, 2007, the Appellate Division, Fourth Department
denied Petitioner leave to appeal. See Dkt. No. 13-10 at 2.
On or about July 14, 2006, Petitioner filed a pro se supplemental section 440 motion, in
which he argued that Moran had a conflict of interest that adversely affected his representation of
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Petitioner. See Dkt. No. 1-2 at 17-22; Dkt. No. 21 at 36.5 In his pro se motion, Petitioner claimed
that on June 16, 2003, after his trial, the Oneida County District Attorney's Office applied for a
wiretap and pen register on Moran's home, office and cell phone lines, before the same judge who
presided over Petitioner's trial – Judge Donalty. See Dkt. No. 21 at 34. Petitioner further claimed
that on June 24, 2003, and July 15, 2003, Judge Donalty issued amended warrants, and on August
17, 2003, Judge Donalty issued a search warrant for Moran's office and home. See id. at 35.
Petitioner argued that the indictment against Moran accused him of distributing
methamphetamine between January 2002 and August 17, 2003. See id. As such, in light of these
facts, Petitioner argued that Moran had a conflict of interest and that he was prejudiced by this
conflict, which resulted in ineffective assistance. See id. at 36. Specifically, Petitioner claimed
that Moran could have pursued an alternate course of representation by conducting an
investigation but that he failed to do so. See id. at 41.
Petitioner and Respondent both agree that Petitioner's pro se motion was dismissed
because the court concluded that it appeared to raise the same claims that were presented in the
counseled section 440 motion. See Dkt. No. 1-2 at 20; Dkt. No. 12 at 9 n.9.6 Petitioner states that
Petitioner included a copy of his pro se section 440 motion as an exhibit to his Traverse.
See Dkt. No. 21 at 26-51. Respondent acknowledges that Petitioner filed the pro se motion, see
Dkt. No. 12 at 9 n.9, but did not include a copy of the motion in his state court records.
5
Petitioner apparently attached several exhibits to his pro se motion. See id. at 45-51. One
of the exhibits was a letter from Moran to the Attorney Grievance Committee, dated June 3, 2004.
See Dkt. No. 21 at 47-48 (the "Moran letter"). In the letter, Moran denied Petitioner's claim that
he told Judge Barry Donalty that he was "under the influence during the trial[.]" See id. at 48.
Moran further stated that he "never appeared in court under the influence of any controlled
substance – ever." See id. Moran further wrote that Petitioner's family was "unable or unwilling
to pay for the services of an investigator" and that he was not paid money to hire an investigator.
See id. at 47.
Petitioner states that he received a letter dated December 7, 2006, from the county court,
informing him that
6
(continued...)
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-n December of 2006, he sought reargument on the ground that his pro se motion raised an
additional conflict issue that was not raised in his counseled section 440 motion. See Dkt. No. 12 at 20. In a letter issued by the court, the request for reargument was denied because the "issue
was reviewed and a decision regarding same was issued on August 31, 2006." See id. at 21.
Petitioner states that he sought leave to appeal the denial of his pro se section 440 motion, but that
leave to appeal was denied in November 2007. See id. at 21-22.
On direct appeal, appellate counsel raised the following arguments: (1) the prosecutor was
improperly allowed to read Nieves' police statement and grand jury testimony into the record at
trial, in which Nieves stated that Petitioner admitted committing the alleged crimes; (2)
Petitioner's motion to set aside the verdict based upon Moran's criminal charges,
methamphetamine use, and ineffective assistance of counsel should have been granted; (3)
Petitioner's sentence for criminal possession of a weapon should run concurrently with his other
convictions; and (4) Petitioner's sentence was unduly harsh and severe. See Dkt. No. 13-1 at 3-4,
8, 25-52.
On September 28, 2007, the Appellate Division affirmed. It found that Petitioner failed to
preserve his argument that the prosecutor improperly impeached Nieves, and declined to reach the
issue "in the interest of justice." People v. Martinez, 43 A.D.3d 1408, 1408-09 (4th Dept. 2007).
6
(...continued)
[s]hortly after [appellate counsel's] filing on June 1, 2006, we
received a pro-se motion pursuant to CPL 440 that you submitted
on your own behalf. After reviewing the pro-se motion and
speaking with your attorney, it became apparent that your motion
papers raised the exact same issues as were raised in the first
motion. Therefore, your second motion is denied as the issues were
addressed in this Court's decision dated August 31, 2006.
See Dkt. No. 1-2 at 20. No copy of the court's letter is in the record before this Court.
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The court also found that the trial court properly denied Petitioner's motion to set aside the verdict
because
[t]he record does not support [Petitioner's] contention that defense
counsel was using drugs during the trial, and the remaining
contentions of [Petitioner] concerning ineffective assistance of
counsel are based on his disagreements with defense counsel's trial
strategies. [Petitioner] has failed to meet his burden of establishing
the absence of any legitimate explanation for those strategies. See
People v Benevento, 91 NY2d 708, 712-713 [1998]; People v
Dennis, 206 AD2d 843 [1994], lv denied 84 NY2d 867 [1994]; see
also People v Flores, 84 NY2d 184, 187 [1994]). Based on "the
evidence, the law, and the circumstances of [this] case, viewed in
totality and as of the time of the representation," we conclude that
defendant received meaningful representation (People v Baldi, 54
NY2d 137, 147 [1981]).
Martinez, 43 A.D.3d at 1409. The Appellate Division modified Petitioner's sentence for criminal
possession of a weapon, finding that it must run "concurrently with the sentences imposed for the
two remaining counts" of the indictment. See id. Thereafter, the court rejected Petitioner's
argument that the sentence, as modified, was unduly harsh or severe. See id. Finally, the court
stated that it had "reviewed [Petitioner's] remaining contentions and conclude[d] that they are
without merit." See id. On January 24, 2008, Petitioner was denied leave to appeal. See Dkt. No.
13-5 at 2; People v. Martinez, 9 N.Y.3d 1035 (2008).
On January 26, 2009, Petitioner filed a writ of error coram nobis in the Appellate
Division, Fourth Department, in which he argued that appellate counsel was ineffective for the
following reasons: (1) failing to argue, in the section 440 motion or on appeal, that Moran had a
conflict of interest; (2) raising an unpreserved claim on direct appeal regarding the prosecutor's
alleged improper impeachment of Nieves instead of preserving the claim by including it in the
motion to vacate; (3) failing to argue that the prosecutor committed misconduct when he became
an unsworn witness during his direct examination of Nieves, and by making improper comments
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during summation; (4) failing to argue that the trial court erred when it denied Moran's motion to
dismiss the indictment; and (5) failing to argue that the trial court improperly denied Moran's
request for a jury charge on circumstantial evidence. See Dkt. No. 13-11 at 2-29. On March 20,
2009, the Appellate Division denied Petitioner's coram nobis petition. See Dkt. No. 13-12 at 2.
Leave to appeal was denied by the New York Court of Appeals on June 19, 2009. See Dkt. No.
13-14 at 2; see People v. Martinez, 60 A.D.3d 1439 (4th Dept. 2009), lv. denied 12 N.Y.3d 917
(2009).
D.
Petitioner's habeas corpus petition and remand by the Second Circuit
On August 6, 2009, Petitioner filed a pro se petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. See Dkt. No. 1. The petition claimed, among other things, that Petitioner
was denied effective assistance of counsel due to Moran's drug addiction and the conflict of
interest resulting from the investigation and prosecution of Moran.
On May 10, 2011, the Court dismissed the petition, rejecting the ineffective assistance
claim and finding no per se, actual, or potential conflict of interest between Petitioner and Moran.
See Dkt. No. 35 at 33-36. Petitioner appealed and on August 18, 2011, the Second Circuit
granted a certificate of appealability "solely on the issue of whether [Petitioner] was denied
effective assistance of counsel due to a conflict of interest presented by the investigation and
prosecution of Moran by the same district attorney's office that prosecuted [Petitioner]." See Dkt.
No. 40 at 3. In a summary order and mandate issued on July 19, 2012, the Second Circuit found
that this Court erred in finding that Petitioner's conflict of interest claim was adjudicated on the
merits in state court and, therefore, that no evidentiary hearing was required for the Court to
dispose of that claim. See id. at 5. As such, the Second Circuit remanded the case "solely for the
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purpose of an evidentiary hearing to determine whether an actual or potential conflict of interest
existed and, if so, whether the conflict adversely affected Moran's representation." See id.
E.
Evidentiary hearing7
On January 3, 2013, the Court held an evidentiary hearing and permitted the parties to file
both pre- and post-hearing memoranda.
1. Testimony of Scott McNamara
At the hearing, Petitioner first called Scott McNamara, who was the Assistant District
Attorney in the Oneida County District Attorney's Office who was in charge of the investigation
and prosecution of Moran. See Dkt. No. 58 at 15. According to McNamara, he was approached
by Keith Grogan, an investigator from the Sheriff's Department, in April or May of 2003, and was
advised that he had information indicating that Moran was smuggling methamphetamine from
Phoenix, Arizona to his home or his office in New York for the Hell's Angels. See id. at 16.
Grogan asked if the District Attorney's Office "would agree to do a wiretap on the case, if that's
where it ultimately went to." See id. When McNamara approached the District Attorney,
Michael Arcuri, with the request, Arcuri said that he was not interested in prosecuting the case.
See id. at 17. At some point in the middle of May, after another meeting took place between the
local police and Arcuri, during which Arcuri finally gave his permission to allow the investigation
to proceed and indicated that he would apply for a wiretap when there was sufficient evidence to
support the application. See id.
The Court appointed Frederick Rench, Esq. to represent Petitioner at the evidentiary
hearing and for all related matters.
7
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Upon receiving permission to proceed, Grogan continued his investigation and Arcuri
instructed McNamara as follows: "Arcuri advised me that I was not to discuss this investigation
with anybody, including anybody that I worked with, that the only people in the District
Attorney's Office that were to know about this matter were myself and the District Attorney
himself." See id. at 18. As the investigation progressed, McNamara informed Arcuri that the
case was creating more work than he could handle by himself. See id. Therefore, Arcuri
permitted McNamara to enlist the help of another assistant district attorney, Joe Saba. See id.
McNamara testified that they continued to maintain secrecy within the office and that it was not
until approximately August 1, 2003, when he requested the assistance of another assistant district
attorney, that any other member of the District Attorney's learned about the Moran investigation.
See id. at 19.
When McNamara was asked if he ever informed Paul Hernon – the assistant district
attorney in charge of prosecuting Petitioner – about the Moran investigation, he responded as
follows:
A.
No. Paul Hernon and I never discussed Mr. Moran's case. Matter of fact,
the first time Paul Hernon and I ever talked about the fact that we were
investigating Mr. Moran was on August 18th of 2003, the day after Mr.
Moran was arrested and this whole thing had kinda hit the media and the
public.
Q.
What did you and Mr. Hernon discuss then?
A.
It was at our morning meeting. Every meeting – every morning, the
District Attorney's Office, we have a meeting, it starts at quarter of nine. I
walked into that meeting. To the best of my recollection, Mr. Hernon was
already there. He looked at me, he says what the heck happened, what's
goin' on with Moran, and I said, you know, we had a long investigation on
him, you know, and I just basically told him that it had started actually
when this case that we're here for, you know, before this case, so, and he
was like I didn't even know and I said I know that.
See id. at 19-20.
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At the hearing, McNamara then discussed the eavesdropping warrant that he applied for in
the Moran case. See id. at 22-23. According to McNamara, on June 12, 2003, he and the law
enforcement officers investigating Moran went to see Judge Donalty. See id. at 24. Specifically,
McNamara testified that, to the best of his recollection, they went to see Judge Donalty "later in
the afternoon, [when] he was done with his court, which there was a trial goin' on with Mr.
Martinez." See id. When they informed Judge Donalty why they were there, "he just said no, I'm
not lookin' at this until the trial's over." See id. When asked if Judge Donalty was aware of the
fact that they were seeking a wiretap for Moran's phone, McNamara stated
I would assume that he knew that. I don't remember specifically
what we told him, but I would definitely assume that Moran's name
came up in the middle of it 'cause that's why he told us to leave, that
he didn't want to deal with this – I can't speak for Judge Donalty,
but my impression was he did not want us having Moran's phone
tapped while Moran was tryin' a murder case and all of us bein'
open to the question of whether or not we were listening to
privileged communications between ourselves and your client now,
which was Moran's client then.
See id. at 25-26. Further, McNamara testified that he does not believe that he informed Judge
Donalty the reason for scheduling an appointment with him until he arrived at his office. See id.
at 26.
McNamara testified that Petitioner's trial before Judge Donalty ended the following day,
Friday, June 13, 2003, and, therefore, they did not meet with Judge Donalty again until the
following Monday. See id. at 26-27. Moreover, McNamara testified that they did not have
probable cause at that time to believe that Moran was involved in the distribution of
methamphetamine, but they had such probable cause to believe that Moran's live-in girlfriend was
selling methamphetamine out of Moran's house. See id. at 28-29. Although not rising to the level
of probable cause, McNamara stated that they had "information from other sources" that Moran
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was acting as the "mule." See id. at 29. Further, McNamara stated that he did not have reason to
believe, at that time, that Moran was personally using methamphetamine. See id.
During his cross-examination, McNamara again stated that he was under strict orders to
keep the Moran investigation confidential and that he did so to the best of his ability. See id. at
30-31. McNamara stated that the need for secrecy was due to the Hell's Angels involvement and
the fact that they are "notorious for counter surveilling people investigating them." See id. at 31.
Further, he reiterated that, within his office, aside from himself, the only people that knew about
the Moran investigation were Arcuri, Mr. Saba, and Carla DeMarco – the two assistant district
attorneys who eventually became involved with the investigation. See id. at 31-32.
Further, McNamara testified that, based on the wiretaps and other surveillance, he came to
believe that Moran had no idea that he was under investigation. See id. at 32-33. During the
investigation, Moran continued obtaining drugs from Arizona and distributing them in Oneida
County. See id. at 33. Further, he continued to have telephone conversations with members of
the Hell's Angels, "[b]oth cryptically and surprisingly not so cryptic sometimes." See id. Finally,
responding to questions posed by the Court, McNamara reiterated that he did not speak with Paul
Hernon about Petitioner's case or the Moran investigation until August 18, 2003, when the media
reported on Moran's arrest. See id. at 34.
2. Petitioner's testimony
Petitioner was the second witness called during the hearing. See Dkt. No. 58 at 36.
Petitioner testified that he first learned that Moran had been investigated and arrested in August of
2003, after hearing about it in the news. See id. Further, he testified that, following Moran's
arrest, neither Judge Donalty nor any other judge conducted a hearing to determine if Moran had
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a conflict with him as a result of Moran's criminal investigation and arrest. See id. at 37, 39.
3. Keith Grogan's testimony
After Petitioner, Respondent called it's only witness, Keith Grogan, who was a member of
the Oneida County Sheriff's Department in 2003. See id. at 40-41. Grogan testified that he
became involved in the Moran investigation in April or May of 2003. See id. at 41. Further,
Grogan testified that, during a proffer session with Moran in the latter portion of 2004, Grogan
asked Moran if he was aware at any time that he was under investigation, to which Moran
responded that he was not. See id. at 43-44.
III. DISCUSSION
A.
Standard of review
The enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA") brought
about significant new limitations on the power of a federal court to grant habeas relief to a state
prisoner under 28 U.S.C. § 2254. In discussing this deferential standard, the Second Circuit noted
that
a federal court may award habeas corpus relief with respect to a
claim adjudicated on the merits in state court only if the
adjudication resulted in an outcome that: (1) was "contrary to, or
involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States"; or
(2) was "based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding."
Rodriguez v. Miller, 439 F.3d 68, 73 (2d Cir. 2006), cert. granted, judgment vacated and cases
remanded on other grounds by 549 U.S. 1163 (2007) (quoting 28 U.S.C. § 2254(d)) (footnote
omitted); see also DeBerry v. Portuondo, 403 F.3d 57, 66 (2d Cir. 2005) (quotation omitted);
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Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003) (quotation omitted).
In providing guidance concerning the application of this test, the Second Circuit has
observed that
a state court's decision is "contrary to" clearly established federal
law if it contradicts Supreme Court precedent on the application of
a legal rule, or addresses a set of facts "materially
indistinguishable" from a Supreme Court decision but nevertheless
comes to a different conclusion than the Court did. [Williams v.
Taylor, 529 U.S. 362] at 405-06, 120 S. Ct. 1495 [(2000)]; Loliscio
v. Goord, 263 F.3d 178, 184 (2d Cir. 2001). . . . [A] state court's
decision is an "unreasonable application of" clearly established
federal law if the state court "identifies the correct governing legal
principle from [the Supreme] Court's decisions but unreasonably
applies that principle to the facts" of the case before it. Williams,
529 U.S. at 413, 120 S. Ct. 1495.
Thibodeau v. Portuondo, 486 F.3d 61, 65 (2d Cir. 2007); see also Williams v. Artuz, 237 F.3d
147, 152 (2d Cir. 2001) (citing Francis S. v. Stone, 221 F.3d 100, 108-09 (2d Cir. 2000)).
Significantly, a federal court engaged in habeas review is not charged with determining
whether the state court's determination was merely incorrect or erroneous, but instead whether
such determination was "objectively unreasonable." Williams v. Taylor, 529 U.S. 362, 409
(2000); see also Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001) (citation omitted). Courts
have interpreted "objectively unreasonable" in this context to mean that "'some increment of
incorrectness beyond error'" is required for the habeas court to grant the application. Earley v.
Murray, 451 F.3d 71, 74 (2d Cir. 2006) (quotation omitted).
A state court determines a petitioner's federal claim "on the merits" and triggers the
highly-deferential AEDPA standard of review when the state court "(1) disposes of the claim 'on
the merits,' and (2) reduces its disposition to judgment." Sellan, 261 F.3d at 312 (quotation
omitted). In this regard, it is not necessary for the state court to refer explicitly to the particular
federal claim or to relevant federal case law. See id.
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Finally, "if the federal claim was not adjudicated on the merits, 'AEDPA deference is not
required, and conclusions of law and mixed feelings of fact and conclusions of law are reviewed
de novo.'" Dolphy v. Mantello, 552 F.3d 236, 238 (2d Cir. 2009) (quoting Spears v. Greiner, 459
F.3d 200, 203 (2d Cir. 2006)); see also Cotto v. Herbert, 331 F.3d 217, 230 (2d Cir. 2003)
(quoting Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001)). In light of the Second Circuit's
determination that Petitioner's conflict of interest claim was not adjudicated on the merits by the
state courts, the Court must apply the pre-AEDPA standard of de novo review.
B.
Conflict of interest
"Where a constitutional right to counsel exists, [the U.S. Supreme Court's] Sixth
Amendment cases hold there is a correlative right to representation that is free from conflicts of
interest." Wood v. Georgia, 450 U.S. 261, 271 (1981). Conflicts of interest fall into three
categories: (1) per se conflicts; (2) actual conflict; and (3) potential conflicts. See United States v.
Williams, 372 F.3d 96, 102 (2d Cir. 2004) (citation omitted). Per se conflicts of interest are "so
severe" that they cannot be waived, and "do not require a showing that the defendant was
prejudiced by his representation." Id. Actual conflicts of interest occur when the interests of the
defendant and his counsel "diverge with respect to a material factual or legal issue or to a course
of action." United States v. Schwarz, 283 F.3d 76, 91 (2d Cir. 2002) (internal quotation marks
omitted). Finally, potential conflicts of interest arise if "the interests of the defendant may place
the attorney under inconsistent duties at some time in the future." United States v. Kliti, 156 F.3d
150, 153 n.3 (2d Cir. 1998) (citation omitted). To violate the Sixth Amendment, an actual
conflict must adversely affect the attorney's performance, while a potential conflict must result in
prejudice to the defendant. See United States v. Levy, 25 F.3d 146, 152 (2d Cir. 1994) (citation
-22-
omitted).
In the present matter, the Second Circuit remanded this action to this Court "solely for the
purpose of an evidentiary hearing to determine whether an actual or potential conflict of interest
existed, and, if so, whether the conflict adversely affected Moran's representation." See Dkt. No.
40 at 5.
1. Actual conflict of interest
Although a defendant alleging a Sixth Amendment violation must usually demonstrate
prejudice resulting from the violation under Strickland v. Washington, 466 U.S. 668 (1984), when
a defendant demonstrates an "actual conflict of interest," prejudice is presumed. See Cuyler v.
Sullivan, 446 U.S. 335, 349 (1980). "An 'actual conflict,' for Sixth Amendment purposes, is a
conflict of interest that adversely affects counsel's performance." Mickens, 535 U.S. at 172 n.5;
Eisemann v. Herbert, 401 F.3d 102, 107 (2d Cir. 2005) (stating that an actual conflict and adverse
effect should be considered in a "single, integrated inquiry"). "To demonstrate adverse effect, a
defendant must establish that an 'actual lapse in representation,' resulted from the conflict."
Winkler v. Keane, 7 F.3d 304, 309 (2d Cir. 1993) (quoting Cuyler, 446 U.S. at 336).
Conflicts of interest exist "when, during the course of the representation, the attorney's
and defendant's interests diverge with respect to a material factual or legal issue or to a course of
action." United States v. John Doe No. 1, 272 F.3d 116, 126 (2d Cir. 2001) (internal quotation
marks omitted). Such divergences in interest have been found where, for example, counsel was
personally implicated in wrongdoing related to the case, United States v. Levy, 25 F.3d 146 (2d
Cir. 1994), or counsel was accused of coercing his client's guilty plea, Lopez v. Scully, 58 F.3d 38
(2d Cir. 1995). In such situations, counsel's and the client's interests diverged because the
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attorney, "fearing answers that might incriminate himself, . . . would have a strong personal desire
to refrain from inquiring at the defendant's trial into certain matters that were directly relevant to,
and potentially exculpatory of, his client." Levy, 25 F.3d at 157; see also Lopez, 58 F.3d at 41
(noting the tension requiring the attorney either to admit to serious ethical violations possibly
amounting to malpractice or to contradict his client in a manner that would undermine the client's
effort to overturn his conviction). No such divergent interests are apparent here.
"There is no Supreme Court precedent establishing that a pending prosecution in the same
jurisdiction is an actual conflict." Corniel v. N.Y.S. Division of Parole, No. 04 cv 2577, 2007 WL
1649895, *6 (S.D.N.Y. June 6, 2007). Moreover, the Second Circuit has held that prosecution or
investigation by the same office, standing alone, is not grounds for finding an actual conflict. See
Armienti v. United States, 313 F.3d 807, 814 (2d Cir. 2002); see also Levy, 25 F.3d at 156-57;
Skinner v. Duncan, No. 01 Civ. 6656, 2003 WL 21386032, *43 (S.D.N.Y. June 17, 2003)
(citations omitted). Therefore, while prosecution by the same jurisdiction could give rise to "a
plausible claim [of] . . . an actual conflict of interest," it is not automatic. Armienti, 313 F.3d at
814, 824-25.
In Armienti, the petitioner tried to establish that there was an actual conflict of interest
between himself and his trial attorney (Shargel) because his attorney was the target of an
investigation by the same prosecuting authority. See Armienti, 313 F.3d at 814. The testimony
established that, although Shargel knew that he was at one point the target of an investigation, he
was unaware that he was still being investigated. See id. The Second Circuit rejected the
petitioner's attempt to liken his situation to that present in United States v. Levy, 25 F.3d 146 (2d
Cir. 1994), where the court found an actual conflict of interest because of the attorney's
investigation by the same prosecuting authority. See id. Specifically, the Second Circuit held
-24-
that, aside from the fact that Shargel was unaware that he was still the target of an investigation,
"numerous other considerations informed our decision in Levy: the attorney in Levy represented
both co-defendants in the case; the attorney possessed privileged information from his
relationship with Levy's co-defendant that was directly relevant to Levy's defense; there existed a
possibility that the attorney would be called as a trial witness; and the attorney may have
participated in the flight of Levy's co-defendant." Id. (citing Levy, 25 F.3d at 156-57).
In the present matter, Petitioner has failed to establish that an actual conflict of interest
existed between himself and Moran. The testimony at the hearing made clear that Moran was
unaware that he was under investigation by the Oneida County District Attorney's Office or
Sheriff's Department. McNamara testified that the eavesdropping warrant was not applied for
until June 12, 2003, the second to last day of Petitioner's trial and, after the jury had already
begun its deliberations. See Dkt. No. 58 at 23-26. Moreover, McNamara testified that he did not
have reason to believe that Moran was using methamphetamine at that time and that he did not
have probable cause to believe that Moran was directly involved in the distribution of the
substance; he did, however, have such cause to believe that Moran's live-in girlfriend was
distributing. See id. at 26-29.
Further, McNamara testified that he was under strict orders to keep the Moran
investigation a secret, even within his own office. See id. at 30-31. It was not until Moran was
arrested that the remainder of McNamara's office, including Hernon, found out about the ongoing
investigation. See id. at 31-32, 34. McNamara stated that, based on the wiretaps and other
surveillance, he came to believe that Moran had no idea that he was under investigation. See id.
at 32-33. This belief was based on the continued trips that Moran made to Arizona to purchase
methamphetamine, the continued distribution of the substance, and the cryptic and not so cryptic
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telephone conversations he was having with members of the Hell's Angels gang. See id. Finally,
Grogan testified that, during a proffer session with Moran in the latter portion of 2004, he asked
Moran if he was aware he was under investigation, to which Moran responded that he was not.
See id. at 43-44.
Based on the testimony presented at the evidentiary hearing, it is clear that both Moran
and Hernon were unaware that Moran was under investigation until after Petitioner was
convicted. Without knowledge that he was under investigation, Moran clearly could not have
been influenced by such an investigation. Unlike the situation in Levy, Petitioner has failed to
establish that the investigation of Moran created an actual conflict of interest. See Armienti, 313
F.3d at 814-15. Further, the investigation into Moran's conduct involved a completely different
substantive crime than Petitioner's, and it was "factually and temporally distinct from" Petitioner's
crimes. See Levy, 25 F.3d at 157 n.8; United States v. Fulton, 5 F.3d 605, 609-12 (2d Cir. 1993)
(finding an actual conflict where the defendant alleged that counsel was engaged in the heroin
trafficking with which the defendant was charged). Given these circumstances, there is no reason
to conclude that Moran was operating under a fear of some kind of action by the Oneida County
District Attorney's Office or Sheriff's Office, or that he wanted to gain favor with either of those
offices or the trial court. Further, the assistant district attorney in charge of Petitioner's case, Paul
Hernon, was unaware of the Moran investigation until after Petitioner's trial. Accordingly,
Petitioner has failed to demonstrate the existence of an actual conflict in which his and Moran's
interests diverged.
Finally, even if the Court were to assume that Petitioner established an actual conflict of
interest, Petitioner has failed to establish that this conflict adversely affected Moran's
-26-
representation.8 Nothing in the record suggests that there was a lapse in representation based on
Moran's own criminal investigation. Petitioner's case is unlike the situation in United States v.
Levy, where the Second Circuit found an actual conflict where counsel "may have believed that
he had an interest in tempering his defense of [his client] in order to curry favor with the
prosecution" or that "a spirited defense" of his client would have prompted the government to
pursue the case against counsel with "greater vigor." Levy, 25 F.3d at 156. Quite simply,
Petitioner failed to establish that "'actual lapse in representation,' Cuyler, 446 U.S. at 336, 100 S.
Ct. at 1711, resulted from the conflict." Winkler v. Keane, 7 F.3d 304, 309 (2d Cir. 2003).
On appeal, Petitioner argued that Moran's criminal activities left him too busy to focus on
Petitioner's case. For example, he argued that Moran should have hired an investigator and
interviewed the approximately sixty-two people who gave statements to the police. See
Petitioner's Brief on Appeal at 26-27. Petitioner's frustration with Moran's handling of the pretrial
investigation of his case does not amount to a lapse in representation due to a conflict of interest.
It is well established that a petitioner "cannot establish an actual conflict of interest merely by
expressing dissatisfaction with [the] attorney's performance." United States v. John Doe #1, 272
F.3d 116 (2d Cir. 2001). Further, Moran's decision to not interview additional witnesses to the
shooting is insufficient to establish that a conflict adversely impacted his representation. Nothing
in the record indicates whether, after reviewing the witness statements to the police, Moran
decided to forego interviewing the witnesses altogether, or whether he actually contacted some of
the witnesses and concluded that their trial testimony would not have been helpful to the defense.
So long as Moran was not deterred from interviewing these witnesses out of a fear of retribution
The Court notes that Petitioner failed to address this inquiry during the evidentiary
hearing or in his post-hearing memorandum. Petitioner did, however, raise this argument in his
appellate brief and in his memorandum in support of his petition.
8
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from law enforcement – and there is absolutely nothing in the record to suggest that occurred in
this case – his strategic decisions should not be disturbed. See Eze v. Senkowski, 321 F.3d 110,
128 (2d Cir. 2003) (holding that "a defense counsel's decision not to call a particular witness
usually falls under the realm of trial strategy that we are reluctant to disturb"). Finally, as the
record before the Court makes clear, Petitioner has not demonstrated "some plausible alternative
defense strategy or tactic might have been pursued" which "possessed sufficient substance to be a
viable alternative," but that "the alternative defense was inherently in conflict with or not
undertaken due to the attorney's other loyalties or interests." Winkler, 7 F.3d at 309 (quotations
omitted).
Based on the foregoing, the Court finds that Petitioner has failed to establish an actual
conflict of interest that adversely affected Moran's performance.
2. Potential conflict of interest
Claims of counsel's conflict of interest that do not qualify as either per se or actual are
generally treated as potential conflicts of interest. See Armienti, 234 F.3d at 824. "In order to
prevail on such a claim, the petitioner must establish both that counsel's conduct fell below an
objective standard of reasonableness and that but for this deficient conduct, the result of the trial
would have been different, under the familiar standard established by Strickland v. Washington,
466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)." Id.
The record before the Court clearly establishes that Moran provided Petitioner with
effective representation throughout the case. As discussed, early in the case, Moran was
successful in his request for a suppression hearing to determine the admissibility of Petitioner's
statements to the police. Later, Moran established that Petitioner's statements were taken in
-28-
violation of his constitutional rights and convinced the prosecution to withdraw their request to
introduce those statements on their direct case.
In his opening statement, Moran presented the jury with a cohesive and effective theory of
the defense, describing the prosecution's main witnesses, Gregory Moore and Raymond Harris, as
drug dealers and "thugs" who were not worthy of belief. See Dkt. No. 13-15 at 222-25. Further,
Moran presented the jury with a plausible theory of the case that differed from the prosecution's
version of events. Moran asserted that the evidence would show that Petitioner offered assistance
to a female patron of the bar who was being harassed by Moore. See id. at 222-23. Moran stated
that when Petitioner attempted to intercede, Moore cursed at Petitioner, pulled on the chain that
Petitioner wore around his neck, and displayed a gun in his waistband. See id. at 223-24. Moran
also emphasized that, although approximately one-hundred people were in the bar at the time,
only Raymond Harris could identify Petitioner and that the other witnesses who testified provided
varying accounts of the shooting. See id. at 223, 225-26. Moreover, Moran told the jury that the
evidence would establish that Petitioner had made plans before the shooting to go to New York
City for Thanksgiving, and that the prosecution's suggestion that Petitioner fled to New York was
not true. See id. at 224.
Moran continued to provide effective representation throughout the trial. Moran crossexamined the prosecution's witnesses effectively and made a number of objections, of which
many were sustained. See, e.g., Dkt. No. 13-15 at 600-01. True to his word in his opening
statement, Moran presented a defense witness – Victor Arimont – who testified that Petitioner
made plans to travel to New York City for Thanksgiving before the shooting occurred. See id. at
607-17. At the conclusion of the prosecution's case, Moran moved to dismiss the charges against
Petitioner, prompting the trial court to dismiss the murder and assault charges that were based on
-29-
depraved indifference. See id. at 603-06.
Finally, Moran presented a cogent and thoughtful summation in which he argued that the
police had conducted a sloppy investigation. He emphasized that of the twenty-five people
present in the bar at the time of the shooting who viewed the photo array, only one identified
Petitioner as the shooter. He also reminded the jurors that the murder weapon was never
recovered, and that there were no fingerprints or other evidence linking Petitioner to the crime.
See id. at 640-41. Moreover, Moran emphasized that the witnesses who testified provided
conflicting accounts of where Petitioner was at the relevant times during the shooting and
incorrectly testified about the color of Petitioner's clothing on the night in question. Moran
concluded by noting that the wide variation in witness accounts of the shooting supported the
weakness in the prosecution's case and that Petitioner's prosecution was predicated entirely on
mistaken identity. See id. at 632-33.
An examination of the record as a whole clearly demonstrates beyond question that
Moran's overall performance was both aggressive and highly competent. See Harrington v.
Richter, 131 S. Ct. 770, 791 (2011) (holding that "it is difficult to establish ineffective assistance
when counsel's overall performance indicates active and capable advocacy"). Moran presented a
cogent and vigorous defense that, although ultimately unsuccessful, was far from ineffective.
Based on the foregoing, the Court finds that Petitioner has failed to establish that Moran's
conduct before and during trial fell below an objective standard of reasonableness and that, but
for this deficient conduct, the result of the trial would have been different.
3. The trial court's inquiry obligation
On remand, Petitioner argues that the trial court had an obligation to inquire into Moran
-30-
and Petitioner's alleged conflict once it learned that Moran was under investigation. Specifically,
Petitioner argues that reversal of his conviction is required because the trial court learned that
Moran was under investigation when McNamara went to Judge Donalty on June 12, 2003 seeking
a wiretap, which was one-day prior to the conclusion of Petitioner's trial. Respondent, however,
argues that this claim was not raised in state court, but for the first time on appeal and at the
evidentiary hearing. See Dkt. No. 60 at 9. Further, Respondent argues that, although Petitioner
raised this claim before the Second Circuit, the mandate did not include this issue for the district
court to address; and, therefore, the claim is beyond the scope of the mandate and should not be
considered by the Court. See id. at 7 (citation omitted). Even if the claim was preserved for
habeas review, Respondent argues that the Supreme Court has made clear that reversal is not
required when the trial court fails to inquire into a possible conflict of interest of which it knows
or reasonably should have known. See id. at 7-8.9
First, to the extent that Petitioner is attempting to argue that there existed a "structural
error" because Moran was being investigated by the same district attorney's office that was
prosecuting his case and the trial court became aware of the investigation but failed to inform him
about it, his argument is without merit. The cases he relies on for this argument did not even
address claims of structural error, but simply discussed, among other things, the trial court's
inquiry obligation. See Armienti, 313 F.3d at 810 n.2 (holding that because no actual conflict of
interest existed, the petitioner's request for an additional hearing as to the trial court's duty of
inquiry into the possibility of a conflict of interest was moot; no claim of structural error raised);
Levy, 25 F.3d at 152 (holding that the trial court did not sufficiently inquire about defense
Although the Second Circuit's mandate did not include this issue for the Court to address
on remand, the Court will nevertheless address this issue on the merits since it relates to the issues
contained in the mandate.
9
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counsel's actual or potential conflicts of interest; no claim of structural error raised).
Second, even though it appears likely that Judge Donalty became aware of the potential
conflict of interest on June 12, 2003, after the jury in Petitioner's trial had begun their
deliberations, reversal of Petitioner's conviction is not warranted. "In order to 'ensure that a
criminal defendant's right to conflict-free counsel is not abridged,' . . . an initial inquiry is required
when 'the trial court knows or reasonably should know that a particular conflict exists[.]'" United
States v. Blount, 291 F.3d 201, 211 (2d Cir. 2002) (quoting Cuyler v. Sullivan, 446 U.S. 335, 347,
100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980)) (internal citation omitted). "When the court is
'sufficiently apprised of even the possibility of a conflict of interest,' its initial obligation is to
'investigate the facts and details of the attorney's interests to determine whether the attorney in
fact suffers from an actual conflict, a potential conflict, or no genuine conflict at all.'" Id.
(quotation and other citation omitted). "Until the Supreme Court's decision in Mickens v. Taylor,
[the Second Circuit] had generally held that a failure by the district court to conduct that initial
inquiry warranted an automatic vacatur of the conviction and a new trial." Id. (citations omitted).
In Mickens v. Taylor, the Supreme Court held that the trial court's failure to inquire into a
potential conflict of interest on the part of the defendant's attorney, about which the court knew or
reasonably should have known, does not automatically require reversal of the conviction, see
Mickens v. Taylor, 535 U.S. 162, 171-72 (2002) (majority opinion), for "[t]he trial judge's failure
to inquire into a suspected conflict is not the kind of error requiring a presumption of prejudice,"
id. at 173 (Kennedy, J., concurring); see also Blount, 291 F.3d at 211-12 (citing Justice Kennedy's
concurring opinion). In the absence of any suggestion by counsel that he cannot fulfill his duties
to all of his clients, "the trial court's failure to make the Sullivan-mandated inquiry does not
reduce the [defendant's] burden of proof; it [i]s at least necessary, to void the conviction, for [the
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defendant] to establish that the conflict of interest adversely affected his counsel's performance."
Id. at 173-74 (majority opinion).
The constitutional question must turn on whether trial counsel had a
conflict of interest that hampered the representation, not on whether
the trial judge should have been more assiduous in taking
prophylactic measures. . . . As the Sixth Amendment guarantees the
defendant the assistance of counsel, the infringement of that right
must depend on a deficiency of the lawyer, not of the trial judge.
There is no reason to presume this guarantee unfulfilled when the
purported conflict has had no effect on the representation.
Id. at 179 (Kennedy, J., concurring).
In the present matter, as the Court discussed above, Petitioner has failed to establish an
actual or potential conflict of interest that "hampered" Moran's representation of him. Contrary to
Petitioner's arguments, without such a finding, the Court is not required to void his conviction.
See Blount, 291 F.3d at 212.
Based on the foregoing, the Court denies the petition on this ground.
C.
Certificate of Appealability
The Court notes that 28 U.S.C. § 2253(c)(1) provides, in relevant part, that, "[u]nless a
circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court
of appeals from – (A) the final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court[.]"10 28 U.S.C. § 2553(c)(1). A court
may only issue a Certificate of Appealability "if the applicant has made a substantial showing of
the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
Rule 22 of the Federal Rules of Appellate Procedure also provides that an appeal may
not proceed in such actions "unless a circuit justice or a circuit or district judge issues a certificate
of appealability under 28 U.S.C. § 2253(c)." Fed. R. App. P. 22(b)(1).
10
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Since Petitioner has failed to make such a showing with regard to any of his claims, the
Court declines to issue a Certificate of Appealability in this matter. See Hohn v. United States,
524 U.S. 236, 239-40 (1998) (quotation omitted). Further, the Court certifies pursuant to 28
U.S.C. § 1915(a)(3) that any appeal from this Memorandum-Decision and Order would not be
taken in good faith and, therefore, in forma pauperis status is denied for the purpose of an appeal.
See Coppedge v. United States, 369 U.S. 438, 444–45 (1962); Slack v. McDaniel, 529 U.S. 473,
484 (2000).
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Petitioner's petition for a writ of habeas corpus is DENIED and
DISMISSED; and the Court further
ORDERS that no Certificate of Appealability shall be issued with respect to any of
Petitioner's claims; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Respondent's favor and close
this case.
IT IS SO ORDERED.
Dated: May 22, 2013
Albany, New York
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