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MARTINEZ v. SENKOWSKI

May 4, 2005.

RAFAEL MARTINEZ, Petitioner,
v.
DANIEL SENKOWSKI, Superintendent of Clinton Correctional Facility, Respondent.



The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT AND RECOMMENDATION

TO THE HONORABLE LAURA TAYLOR SWAIN, UNITED STATES DISTRICT JUDGE.

I. INTRODUCTION

  Before the Court is the petition of Rafael Martinez ("Martinez") for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Martinez alleges that his confinement by the state of New York is unlawful because: (1) the prosecutor at Martinez's trial, through the use of peremptory strikes, prevented black veniremembers from being sworn as members of his trial jury, thereby violating Martinez's right to equal protection; (2) the assistance rendered to Martinez by his trial counsel was ineffective, since counsel did not prepare adequately for trial, behaved in an unprofessional and disorderly manner during court proceedings, did not call a witness who would have exculpated the petitioner, and did not consult a handwriting expert to analyze an incriminating document allegedly signed by the petitioner; (3) the trial court exhibited hostility to the petitioner's trial counsel in the presence of the jury, thereby violating his due process right to a fair trial; (4) the trial court closed the courtroom to the public during the testimony of certain witnesses, violating Martinez's right to a public trial; (5) the court-appointed attorneys who represented the petitioner's co-defendants at trial applied to, and received from the trial court enhanced monetary compensation, which rendered them beholden to the trial court, violating Martinez's right to a fair trial; and (6) the trial court's imposition of a sentence of 213 years to life imprisonment was occasioned by its reliance on impermissible factors, thereby violating his right to due process.

  The respondent opposes the petitioner's application for habeas corpus relief on the grounds that the petitioner's ineffective assistance of counsel claim is partially unexhausted and procedurally barred, his other claims are completely unexhausted and procedurally barred, and all of his claims lack merit.

  II. BACKGROUND

  In October 1991, a New York County grand jury returned an indictment accusing Martinez of being the leader of a narcotics trafficking organization that sold substantial quantities of cocaine and engaged in other unlawful conduct in parts of northern Manhattan and the Bronx, including the vicinity of West 157th Street, in Manhattan.*fn1

  Martinez and four co-defendants, each represented by different counsel, proceeded to trial before a jury in New York State Supreme Court, New York County. The co-defendants' trial counsel, who had been appointed by the court, requested that each be compensated at rates greater than the $40 per hour and $25 per hour typically awarded to appointed counsel at that time, under New York law for in-court and out-of-court work, respectively. Noting that the anticipated length and complexity of the trial had required the co-defendants' counsel to forgo other work opportunities, the court determined that counsel to each of the co-defendants would be compensated at a rate of $65 per hour for all work performed in connection with the trial.

  In October 1992, jury selection commenced. During the first round of voir dire examination, the parties considered 43 veniremembers. At least five of those veniremembers were black, and the prosecution struck four of the five peremptorily. One of the petitioner's co-defendants alleged that this pattern of peremptory strikes was motivated by the veniremembers' race, and asked that the trial court seat the four veniremembers on the jury. The petitioner joined in that application. The trial court denied the application, noting that it perceived "obvious," non-racial reasons for striking two of the black veniremembers. The trial court opined that one of the black veniremembers who was struck peremptorily was "not totally rational" or "totally of this world," and that another was a "bizarre person who not only dressed in a strange manner, [but also] seemed to be a little strange herself." After referring to the standard set forth in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), the trial court concluded: "In view of the fact that two of the four black jurors challenged were clearly people who had obvious problems, in my view, I don't see any pattern at all, and at this point I will not find that there was a prima facie case of discrimination." Thereafter, voir dire was completed, and a jury was sworn.

  The trial lasted approximately four months. During this time, Martinez's trial counsel, Richard L. Giampa ("Giampa"), engaged in a number of acrimonious and disrespectful colloquies with the trial court, repeatedly disputed and/or ignored the trial court's evidentiary rulings and other directives and — orally and through facial expressions — called into question the impartiality and reputation of the trial judge. Much of this conduct occurred in the presence of the jury. The trial court summarily convicted Giampa of criminal contempt of court for his misconduct during the trial. According to the petitioner and the respondent, Giampa did not review timely certain witness statements, reports and photographs that were made available to him prior to trial, after assuring the court prior to trial that he would do so. This and Giampa's other conduct during the trial slowed the progress of the trial on numerous occasions. According to the petitioner, Giampa also failed to: (1) call a witness — identified only as "Louisa" in the record before the Court — who had told the police that a person other than the petitioner had committed one of the murders of which the petitioner had been accused; and (2) engage a handwriting expert to examine an incriminating piece of evidence that it was alleged the petitioner had signed.

  Giampa's contempt conviction and the misconduct that gave rise to it were the bases for three of ten charges lodged against Giampa in a disciplinary proceeding instituted by the Grievance Committee for New York's Ninth Judicial District. The New York State Supreme Court, Appellate Division, Second Department, found that the disciplinary charges against Giampa had been established by a preponderance of the evidence, and suspended him from the practice of law for a period of one year. In the Matter of Giampa, 211 A.D.2d 212, 215-16, 628 N.Y.S.2d 323, 325 (App.Div. 2d Dep't 1995) (noting that Giampa "has evinced a flagrant disrespect for the judiciary and a fundamental disregard for the judicial process which he has been sworn to uphold").

  During Martinez's trial, the prosecution requested that the courtroom be sealed during the testimony of three undercover police officers who had investigated Martinez and the narcotics trafficking organization of which he was alleged to be the leader. The court sealed the courtroom for the purpose of conducting a hearing on the prosecution's application. During that hearing, the undercover officers testified, among other things, that they were engaged in ongoing undercover investigations of illegal narcotics activities in the vicinity of the West 157th Street neighborhood in which Martinez and his co-defendants were alleged to have committed the charged offenses, and in which members of the defendants' families resided. Based upon this and other evidence, the trial court granted the prosecution's application and excluded the public from observing the trial testimony of the undercover officers.

  The jury found Martinez guilty for one count of conspiracy in the second degree (N.Y. Penal Law § 105.15), one count of murder in the second degree (N.Y. Penal Law § 125.25), one count of attempted murder in the second degree (N.Y. Penal Law §§ 110.00, 125.25), one count of criminal sale of a firearm in the third degree (N.Y. Penal Law § 265.11), three counts of criminal sale of a controlled substance in the first degree (N.Y. Penal Law § 220.43), three counts of criminal possession of a controlled substance in the first degree (N.Y. Penal Law § 220.21), one count of criminal possession of a controlled substance in the third degree (N.Y. Penal Law § 220.16), and five counts of criminal possession of a weapon in the third degree (N.Y. Penal Law § 265.02).

  On April 8, 1993, the petitioner was sentenced to consecutive, indeterminate terms of incarceration: 8 1/3 to 25 years for the conspiracy conviction, 25 years to life for the murder conviction, 8 1/3 to 25 years for the attempted murder conviction, 1 1/3 to 4 years for the criminal sale of a firearm conviction, 25 years to life for each of the first degree criminal sale of a controlled substance convictions, 25 years to life for each of the first degree criminal possession of a controlled substance convictions, 8 1/3 to 25 years for the third degree criminal possession of a controlled substance conviction, and 2 1/3 to 7 years for each of the criminal possession of a weapon convictions — an aggregate term of 213 years to life. Each term of incarceration imposed was the maximum permitted by New York law. Martinez appealed from the judgment of conviction to the New York State Supreme Court, Appellate Division, First Department ("Appellate Division"), on the grounds that: (1) his trial counsel's assistance was ineffective because he did not prepare adequately for trial and because his conduct at trial was unprofessional; (2) the trial court exhibited such hostility to Martinez's trial counsel, both in the presence of the jury and otherwise, that Martinez was deprived of a fair trial; (3) his constitutional and statutory rights to confront witnesses were violated when the trial court precluded his counsel from examining certain ...


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