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
OPINION AND ORDER
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
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
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
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 &
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
(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]
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
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"
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.
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
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
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
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
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.
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
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.
© 1992-2004 VersusLaw Inc.