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United States District Court, S.D. New York

January 5, 2004.

ALBERTO MARTINEZ, Petitioner, -v.- JOSEPH J. COSTELLO, Superintendent, Mid-State Correctional Facility, and ELIOT SPITZER, Attorney General of the State of New York, Respondents

The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge


Following a plea of guilty to one count of Criminal Possession of a Controlled Substance in the Second Degree in New York County Supreme Court, Alberto Martinez was sentenced as a second felony offender to a prison term of six years to life. He now brings this petition for writ of habeas corpus pro se pursuant to 28 U.S.C. § 2254. The parties have consented to the exercise of jurisdiction over this petition by a United States Magistrate Judge under 28 U.S.C. § 636(c). For the reasons below, the petition is denied.


  In March 1998, Martinez was indicted for Criminal Possession of a Controlled Substance in the First Degree and related charges in connection with a drug sale turned shoot-out which occurred in Martinez's apartment. See Martinez's Appellate Brief, dated May 2001 ("App. Brief") (annexed to Petition for Writ of Habeas Corpus, filed April 22, 2003 (Docket #2) ("Petition")), at 3; Plea: Tr. 3, 7-9. During this incident, Martinez was shot in the face and three Page 2 other participants also sustained gunshot wounds. App. Brief at 3; Respondents' Memorandum of Law in Opposition to Petition for Writ of Habeas Corpus, filed September 3, 2003 (Docket #ll)("Resp. Opp."), at 2.

  On August 19, 1999, Martinez appeared with counsel before the Honorable Ronald A. Zweibel of the New York County Supreme Court for a pre-trial hearing. See generally Transcript of Plea Hearing Conducted August 19, 1999 (Docket #10). Martinez was represented by Alfredo Hernandez, a court-appointed lawyer. Petition at 1. Apparently, plea discussions had been ongoing over the entire one-and-a-half-year period since the case was first indicted. (Plea: Tr. 3). Defense counsel stated to the court that he had "had extensive conversations with Mr. Martinez" and that he had explained to Martinez that various people had made statements against him; Felix Pabon, a participant in the crime, would likely testify against him; cocaine had been recovered from outside Martinez's apartment; and his fingerprints had been lifted from one of the bricks of cocaine. (Plea: Tr. 3). If convicted as charged, Martinez faced a minimum sentence of fifteen years to life, (Plea: Tr. 2), and a maximum of twenty-five years to life, (Plea: Tr. 5). Nonetheless, defense counsel reported that Martinez had been "completely recalcitrant" in participating in the plea discussions. (Plea: Tr. 3).

  As of August 19, 1999, all other individuals involved in the incident had pled guilty. (Plea: Tr. 4). The Assistant District Attorney stated on the record that she was offering Martinez a sentence of six years to life in return for a plea of guilty to Criminal Possession of a Controlled Substance in the Second Degree in full satisfaction of the indictment. (Plea: Tr. 3-4, 7). She made it clear that this was the best offer she was allowed to make and that the offer would be revoked as soon as the pre-trial hearing began. (Plea: Tr. 9). She explained her offer based on Page 3 the facts that "this defendant arranged a drug deal for three kilos of cocaine, in a residential area. . . . As a result . . . four people were shot. . . . He has three prior felony convictions." (Plea: Tr. 7-8).

  After consulting with Martinez, defense counsel reported to the court that Martinez was rejecting the offer and was prepared to proceed with the hearing. (Plea: Tr. 9). The first witness was called to the stand but before he could be sworn in, defense counsel asked the court to "hold on just a second" so he could consult with Martinez. (Plea: Tr. 10). Thereafter, Martinez's counsel stated that Martinez was withdrawing his plea of not guilty and entering a plea of guilty. (Plea: Tr. 10-11).

  During the subsequent allocation, Martinez acknowledged that he had discussed his case and plea with his attorney, that he understood he was waiving certain constitutional rights, and that he was pleading guilty of his own free will. (Plea: Tr. 11-12). The court asked him: "Are you pleading guilty because you are, in fact, guilty of this crime?" Martinez replied "Yes, sir." (Plea: Tr. 12).

  The court asked Martinez if he understood that a plea had the same effect as if he had been convicted after a trial, to which Martinez responded that he did. (Plea: Tr. 12-13). Martinez also stated that he understood the charge he was pleading to and that no one had forced him to enter into the plea. (Plea: Tr. 13). The court then repeated the nature of the charge — Criminal Possession of a Controlled Substance in the Second Degree — and the following colloquy ensued:

  THE COURT: It is alleged that the defendant[], Alberto Martinez[,] . . . in the County of New York, on or about March 15th, 1998, knowingly and unlawfully possessed one or more preparations, compounds, mixtures and substances Page 4 containing a narcotic drug; to wit, cocaine, and said preparations, compounds, mixtures and substances are of an aggregate weight of two ounces or more. Do you plead guilty to that charge?

  THE DEFENDANT: Yes, sir.

 (Plea: Tr. 13-14). The clerk officially recorded the plea and the case was scheduled for sentencing on September 1, 1999. (Plea: Tr. 14-15).

  A few days later, Martinez filed a pro se motion to withdraw his plea that annexed an affidavit. See Notice of Motion, dated August 24, 1999, and Affidavit of Alberto Martinez, dated August 25, 1999 ("Martinez Aff") (both annexed as Ex. A to Resp. Opp.). Both the Notice of Motion and affidavit were "fill-in-the-blank" forms inasmuch as lines appear where case-specific information, such as the defendant's name, docket number, and dates, needs to be filled in. Martinez filled in some of these lines but left blank a large space provided for him to fill in the specific facts supporting his motion. Martinez Aff. ¶ 5.

  The affidavit form states that the affiant is "not fully aware of the circumstances involved when he made such guilty plea," that he "plead [sic] guilty for reasons which are outside the record," that "he was unaware of the fact[] that he has a good meritorious defense to the prosecution," and that "he is not guilty of the offense." Martinez Aff. ¶¶ 4-7. The affidavit also contained a statement that "defendant . . . was fully aware of the consequences of his plea of guilty." Id. ¶ 6. Martinez's counsel later explained that this was a typographical error and that Martinez meant he was not fully aware, as the context of the statement implies. See Sentencing: Tr.4; App. Brief at 6 n.3.

  On September 1, 1999, prior to sentencing, Judge Zweibel considered Martinez's motion to withdraw his plea. See generally Transcript of Hearing on Motion to Withdraw Plea & Page 5 Sentencing Hearing Conducted September 1, 1999 (Docket #9), at 2-8. Defense counsel indicated that the pro se motion "puts me in a situation where it would be a conflict of interest for me to remain on this case, an irreconcilable interest [sic]." (Sentencing: Tr. 3). He explained:

Anyway, I did not encourage this motion. I cannot join this motion in good conscience . . . and I certainly wouldn't start to feel that I'm in a position to effectively argue such a motion considering a very extensive record that I made on the last date . . . regarding the proof in this case, the consequences to the Defendant and what his options were. . . .
So, I have not joined in this motion. This is a pro se motion. I don't know if it would be in conflict. Clearly, I cannot in good conscience argue this particular motion. I think my client stands to be seriously prejudiced if this motion were granted.
(Sentencing: Tr. 4-5). He further stated:
As I said, I feel that I'm at a conflict of interest with this particular motion to withdraw, and I think the Court should make a ruling as to whether to relieve me on this matter regarding this particular motion and have another attorney, maybe, make an effective argument for him on this matter, since I don't feel that I can make an argument, and it may be to his prejudice that he doesn't have an attorney to argue this withdrawal.
(Sentencing: Tr. 6-7). The trial court declined to allow defense counsel to withdraw and to appoint Martinez a new attorney. (Sentencing: Tr. 7) ("I see no basis for you to be discharged on the basis of this motion that was presented to me. I see no merit whatsoever to this motion, and that application is denied to relieve you, counsel.").

  With respect to the underlying motion to withdraw the plea, the trial court examined the papers submitted by Martinez and observed that "[t]hese are boiler plate papers that are prepared within the prison system." (Sentencing: Tr. 4). Further, the court found the assertions made in Martinez's affidavit to be "contrary to the full allocation he made the other day." (Sentencing: Tr. 5-6). The trial judge agreed with the prosecutor's statement that "[t]he only question [is] Page 6 whether [the plea] was knowing and voluntary, and it was one of the most extensive plea allocations and discussions on the record, prior to allocation, that I've had since I've been with the District Attorney's Office." (Sentencing: Tr. 7-8).

  Before he was sentenced, Martinez was invited to address the court. He stated only: "I don't have any drugs, and I don't know anything about any drugs." (Sentencing: Tr. 11). He was then sentenced to the agreed-upon term of six years to life imprisonment. (Sentencing: Tr. 11).

  In May 2001, through newly-assigned counsel, Martinez appealed his conviction, arguing that the "trial court erred in refusing to relieve counsel, who stated that he had a conflict of interest, and in summarily denying Mr. Martinez'[s] motion to withdraw his plea." App. Brief at 6. The conviction was unanimously affirmed by the Appellate Division, First Department, on December 11, 2001. People v. Martinez, 289 A.D.2d 70 (1st Dep't 2001). The Appellate Division stated:

The court properly exercised its discretion in denying defendant's motion to withdraw his guilty plea without a hearing and without appointing new counsel. Defendant was afforded a sufficient opportunity to present his assertions by means of his written motion, upon which he did not elaborate, and the court gave the motion proper consideration (see People v. Frederick, 45 N.Y.2d 520 [(1978)]; People v. Colon, 283 A.D.2d 193 [(1st Dep't 2001)]). The motion consisted of vague and conclusory allegations of innocence, lack of comprehension and ineffective assistance of counsel, which the court described as "boilerplate papers that are prepared within the prison system." The court, which had also accepted the guilty plea, was entitled to rely on the plea colloquy, which contradicted defendant's assertions.
Id. at 70. Thereafter, Martinez sought leave to appeal to the New York Court of Appeals, which was denied on March 27, 2002. People v. Martinez, 97 N.Y.2d 757 (2002).

  Martinez is currently incarcerated at the Mid-State Correctional Facility in Marcy, New York. He timely filed this petition for writ of habeas corpus arguing that he was deprived of his Page 7 right to due process of law and his right to conflict-free counsel when the trial court summarily denied his motion to withdraw his guilty plea without appointing new counsel. See Petition at 2-3. Martinez exhausted his state law remedies by presenting the constitutional nature of his claims to each available level of the state courts. See Dave v. Attorney Gen., 696 F.2d 186, 190-92 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048 (1984).


  A. Standard of Review

  Under the Antiterrrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254, a petition for a writ of habeas corpus may not be granted with respect to any claim that has been "adjudicated on the merits" in the state courts unless the state court's adjudication: "(1) resulted in a decision that 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) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). The Second Circuit has held that "adjudication on the merits" requires only that the state court base its decision on "the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). Furthermore, it is not necessary for the state court to refer to any federal claim or any federal law for AEDPA's deferential standard to apply. Id. at 312. In light of the Appellate Division's decision in this case, it is clear that Martinez's claims were adjudicated on the merits. Accordingly, the state court's decision will be reviewed under the standard laid out in 28 U.S.C. § 2254(d).

  In Williams v. Taylor, the Supreme Court held that a state court decision is "contrary to" Page 8 clearly established federal law only "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision [of the Supreme Court] and nevertheless arrives" at a different result. 529 U.S. 362, 405-06 (2000). Williams also held that habeas relief is available under the "unreasonable application" clause only "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 prisoner's case." Id., at 413. A federal court may not grant relief "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the state court's application must have been "objectively unreasonable." Id., at 409.

  B. The Merits of Martinez's Claims

  Martinez argues that his Sixth and Fourteenth Amendment rights were violated when the state court denied his motion to withdraw his plea without appointing new counsel to represent him on the motion. See Petition at 2-3, 5-6. The petition appears to raise three claims: (1) the plea was entered unknowingly, in violation of the Due Process Clause; (2) Martinez was denied due process by the state court's failure to hold a hearing on his motion; and (3) the state court's failure to appoint new counsel to represent him on his motion denied Martinez his right to conflict-free counsel. Martinez bases his claims on the allegations in his affidavit and on defense counsel's statements that he had a conflict of interest with regard to the allegations made in the motion and therefore could not argue the motion on Martinez's behalf. See id. at 4-5. Each claim is addressed separately. Page 9

  1. Unknowing Guilty Plea

  The Due Process Clause of the Fourteenth Amendment requires that a guilty plea be knowingly and voluntarily entered. E.g., Boykin v. Alabama, 395 U.S. 238, 242-43 (1969). A plea is made knowingly when it is entered "`with [an] understanding of the nature of the charge and the consequences of the plea.'" Santobello v. New York, 404 U.S. 257, 261 n.1 (1971) (quoting Fed.R.Crim.P. 11).

  Martinez does not contend that the plea colloquy itself reflects an improperly entered plea. Rather, Martinez relies on his motion to withdraw his plea, in which he stated that he "plead [sic] guilty for reasons which are outside of the record . . . and was [not] fully aware of the consequences of his plea of guilty and also . . . he was unaware of the fact[] that he has a good meritorious defense." Martinez Aff. ¶ 6. He also stated that he was "not guilty of the offense(s) to which he plead [sic] guilty." Id. ¶ 7.

  Case law reflects that assertions of this kind are insufficient to negate the existence of a valid plea. As the Supreme Court has noted, "[s]olemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal. . . ." Blackledge v. Allison, 431 U.S. 63, 74 (1977); accord Singh v. Kuhlman, 1996 WL 337283, at *3 (S.D.N.Y. June 19, 1996). As already noted, the affidavit containing these statements was a fill-in-the-blank form and Martinez never provided any details explaining — let alone substantiating — any of the conclusory assertions contained in the affidavit. Furthermore, the affidavit completely contradicts Martinez's own statements during his plea allocation. Compare Martinez Aff. ¶¶ 4, 6-7, with Plea: Tr. 11-15. As for Martinez's contention of having a "meritorious defense," Martinez Aff. ¶ 6, there is no Page 10 indication anywhere in the record that such a defense actually existed. Indeed, defense counsel stated on the record before the plea:

I don't think he has much of a defense on [this case], because, after all, he would have to testify in this case to make out the defense that he has and I've advised him he has a criminal record here and that will be made known to the jurors in this case, that he has a criminal record, and that will seriously effect his credibility, in addition to the proof that the prosecution has here, that he at some point possessed the narcotics in this case.
(Plea: Tr. 6). Martinez's motion to withdraw did not elaborate on any new possible defense he had discovered or indicate that he could substantiate his claim of innocence.

  Martinez's statements during his plea allocation demonstrate that the plea was knowing in that it was entered with full knowledge of the charge and the consequences of pleading guilty. See Santobello, 404 U.S. at 261. The statements Martinez made during the plea allocation control over the unexplained statements in his affidavit. See Singh, 1996 WL 337383, at *3. The state court's determination that Martinez's "vague and conclusory allegations of innocence, [and] lack of comprehension" were nothing more than "boilerplate" and "contradicted defendant's assertions," Martinez, 289 A.D.2d at 70, was neither contrary to, nor did it involve an unreasonable application of, any clearly established federal law.

  2. Motion to Withdraw Guilty Plea

  The next question raised by Martinez is whether he was entitled to an evidentiary hearing on his motion to withdraw his guilty plea. A recent case from the Second Circuit, Hines v. Miller, 318 F.3d 157 (2d Cir.), cert. denied, 123 S.Ct. 2089 (2003), is almost precisely on point. In Hines, the petitioner pled guilty in state court and thereafter sought to withdraw his plea, claiming that his attorney coerced him into accepting the plea and that he was innocent of the Page 11 crime. Id. at 159. Defense counsel asked to be relieved and for new counsel to be appointed to represent the petitioner on the motion. Id. The trial court, however, denied the pro se motion without holding a hearing and without appointing new counsel, noting that the petitioner had inculpated himself when he entered the plea and stated during the plea allocation that no one had forced him to plead guilty. Id.

  In seeking federal habeas review of his conviction, the petitioner in Hines argued that the failure to hold a hearing on his motion to withdraw his plea violated due process. 318 F.3d at 161. The Second Circuit held, however, that "a defendant is not entitled as a matter of right to an evidentiary hearing on a motion to withdraw a guilty plea." Id. at 162; accord Cosey v. Walsh. 2003 WL 1824640, at *3 (S.D.N.Y. Apr. 8, 2003); Thomas v. Senkowski, 968 F. Supp. 953, 956 (S.D.N.Y. 1997). Thus, "the failure to hold an evidentiary hearing . . . does not offend a deeply rooted or `fundamental' principle of justice." Hines, 318 F.3d at 162 (quoting Medina v. California, 505 U.S. 437, 445 (1992)). The failure to hold a hearing is especially understandable in Martinez's case where petitioner "did nothing more than contradict his own statements at the time he entered the plea," Hutchings v. Herbert 260 F. Supp.2d 571, 581 (W.D.N.Y. 2003).

  In light of the lack of a federal constitutional right to an evidentiary hearing in this situation, the Appellate Division's decision upholding the failure to hold such a hearing was not "contrary to, or involved an unreasonable application of, clearly established Federal law." 28 U.S.C. § 2254(d).

  3. Ineffective Assistance of Counsel/Motion to Substitute Counsel

  Martinez also argues that the trial court violated his right to counsel when it failed to appoint new counsel to represent him on his motion to withdraw his plea. See Petition at 5-6. Page 12 Hines considered the same issue in the context of petitioner's argument that he was denied effective assistance of counsel by his attorney's failure to represent him on his motion to withdraw his plea. 318 F.3d at 162-64. As is true here, the petitioner in Hines based his motion in part on the ground that his attorney had an actual conflict of interest. Id.

  The Hines court noted that such claims can be analyzed two ways: either (1) "as a claim that petitioner was denied his right to counsel because he was effectively unrepresented on his motion to withdraw his plea," or (2) "as a claim that petitioner was denied the effective assistance of counsel because an actual conflict of interest adversely affected counsel's performance." Id. at 163 (citations omitted). The Supreme Court has not clarified which analysis courts should apply, but Hines observed that the Second Circuit has applied the ineffective-assistance-of-counsel analysis and has "generally decided the case on the basis of whether the underlying motion had sufficient merit to create an actual conflict of interest or present a `plausible alternative defense strategy.'" Id. (citations omitted); see, e.g., United States v. Davis, 239 F.3d 283, 285-88 (2d Cir. 2001); Lopez v. Scullv, 58 F.3d 38, 41-43 (2d Cir. 1995); Fluitt v. Superintendent. Green Haven Corr. Facility, 480 F. Supp. 81, 86 (S.D.N.Y. 1979) (Weinfeld, J.). Hines also noted that "numerous reviewing courts, irrespective of the analysis employed, have affirmed the denial of a withdrawal motion despite the failure to appoint new counsel." 318 F.3d at 164 (citing cases). Hines ruled against the petitioner in that case, holding that there was "no basis for concluding . . . that the Appellate Division's decision here constituted an unreasonable application of clearly established Federal law as determined by the Supreme Court of the United States." Id.

  Hines governs the instant case. If anything, there was more information in the record in Page 13 Hines as to the petitioner's explanation for attempting to withdrawal his guilty plea. See 318 F.3d at 159. Here, there is no such information and Martinez failed to provide any when he was given a chance to speak before sentencing or through the pre-sentence motion. In addition, unlike Hines, there are no allegations that Martinez's attorney attempted to coerce him. What is left is a patently meritless submission that obviously could not meet the standard of a motion with "sufficient merit to create an actual conflict of interest or present a `plausible alternative defense strategy,'" Hines, 318 F.3d at 163. Thus, the trial court properly concluded that there was no need to appoint new counsel.

  Because the Appellate Division's determination upholding this decision was not contrary to, or an unreasonable application of, any clearly established federal law, it must be upheld.


  For the foregoing reasons, the petition is denied. In addition, because Martinez has not made a substantial showing of the denial of a constitutional right, the Court will not issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c). The Court also certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from the judgment would not be taken in good faith.

  The Clerk is requested to enter judgment and close this case. Page 1


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