The opinion of the court was delivered by: DOUGLAS EATON, Magistrate Judge
I will assume that the reader is familiar with my Memorandum
and Order dated May 4, 2005 and filed one day later, Pinero v.
Greiner, 2005 WL 1075323 (S.D.N.Y. May 5, 2005). That opinion
noted that William Pinero had acted pro se in this habeas case
for some 1 ½ years, and then retained Damond J. Carter, Esq. of
Albany, NY in early 2003. In that opinion, I also noted that the
Supreme Court had recently decided Rhines v. Weber,
125 S.Ct. 1528
(Mar. 30, 2005), which set stricter standards on the "stay
and abeyance" approach to mixed habeas petitions. I wrote:
In view of the Rhines decision, and in view of Mr.
Carter's lack of diligence from October 4, 2004 to
[May 4, 2005], I deny Mr. Carter any further delay
while he seeks to exhaust claims in state court.
* * *
. . . I direct Mr. Carter to serve ADA Vassallo with
the Motion to Amend and a proposed Amended Petition
(either as is, or with any additions or changes he
deems necessary) by June 1, 2005,. . . .
Mr. Carter did not comply. Instead, he faxed me a 3-page
affirmation and a 2-page letter (both dated May 20 but faxed on
May 26) in which he requests me to allow him to withdraw as
counsel. His letter stated: "The delay in presenting Petitioner's
case to this Court has resulted from a lack of funding." As will
be seen, that statement was misleading.
I asked for more information in orders dated June 2 and June
14, 2005; my June 2 order warned: "It is my present inclination
to grant Mr. Carter's request to be allowed to withdraw, but probably only on condition that he return all or a part of any
fees he has collected." I have now received letters from Pinero
dated June 3 and June 7, 2005; they enclose copies of 21 letters
that Pinero wrote to Mr. Carter with dates ranging from February
7, 2003 to December 29, 2004, and copies of 7 letters that Mr.
Carter wrote to Pinero with dates ranging from August 14, 2003 to
May 24, 2005. (I agree with Pinero that those 28 letters are
protected by the attorney-client privilege; I will consider them
while ruling on the fee dispute, but I will not show them to ADA
Vassallo, and I will quote only from the non-privileged
portions.) I have also received letters to me from Mr. Carter
dated June 9 and June 18, 2005, and a letter to me from Pinero's
stepfather Miguel Suarez dated July 5, 2005. I have come to the
following findings and conclusions.
Mr. Carter was admitted to the Bar of the State of New York in
2000, and admitted to the Bar of the Southern District of New
York on July 13, 2004. Some time shortly before February 2001,
when he was "fresh out off [his] Judicial Clerkship," he opened a
solo law practice. (See his 6/18/05 letter to me, p. 1.) His
practice appears to concentrate on representing prisoners in
appeals and other post-conviction proceedings. Around February
2001, he devised a form contract to be signed by himself, a
client-prisoner, and a "financer." (See first exhibit to his
6/18/05 letter to me.) It seems to be undisputed that Mr. Carter
and Pinero and Pinero's stepfather all agreed to be bound by this
form contract, although Mr. Carter has not produced a signed
copy. The first two sections of the form contract say:
Purpose of Employment
Financer-client employs attorney to represent client
as client's attorney at law during the course of
appeal proceedings in the matter of People of the
State of NY against ___________, and empowers
attorney to institute such legal action as may be
advisable in the judgment of attorney with the advice
and consent of client in the matter.
Client shall pay to attorney for all services
rendered under this agreement the sum of a $4000 plus
costs, minus the initial fee, this is a one time
payment to go as far as the U.S. Court of Appeals if
Section Two seems to call for an initial installment payment followed by a one time payment to bring the total to $4,000.
However, it is undisputed that Mr. Carter agreed that Pinero's
stepfather "would pay about $500 per month." (Mr. Carter's 6/9/05
letter to me, p. 2.) It is also undisputed that the stepfather
paid $500 per month from February through June 2003, and then
$300 in September 2003, for a total of $2,800, and has paid
Also undisputed is what Mr. Carter contracted to do for a fee
of $4,000. His June 18, 2005 letter to me, at pages 1-2, says: "I
agreed to file a [CPL 440.10] motion to vacate, [and a motion
for] leave [to appeal] therefrom, [and] to file an error coram
nobis application, [and a motion for] leave [to appeal] therefrom
and to represent Mr. Pinero on his habeas application, and
relat[ed] investigation. * * * Mr. Pinero's June 7, 2005,
response to this Court accurately informs this Court what work I
agreed to do and the price I quoted Mr. Pinero." Pinero's June 7
response specifically included "draft a sworn statement from the
Court interpreter" and "complete [a memorandum of law on] those
issues which have no memorandum of law attached as of this date."
Mr. Carter did meet with Pinero in prison four times, all in
2003 (1) sometime before February 7, (2) on March 28, (3) on
April 30, and (4) on September 10. At least one of those meetings
(on September 10) was attended by Layser Palmer, a Green Haven
inmate who had helped Pinero write his pro se habeas petition
dated October 15, 2001, barely before the one-year statute of
By June 2003, Pinero's stepfather had paid Mr. Carter $2,500.
In August 2003, Mr. Carter filed a coram nobis application with
the First Department; Pinero complained about its quality in a
letter to Mr. Carter dated August 21, 2003: ". . . please don't
put in any more paper work without me looking at a rough draft of
it. . . . The error coram nobis that you put into the court was
not up to standard."
By money order dated September 22, 2003, Pinero's stepfather
paid Mr. Carter an additional $300. By fax letter to me dated
July 5, 2005, the stepfather writes: "I only withheld payment of
$1200. The reason for this situation, was that as many times as I
called Mr. Carter and told him that I would resume his payments
when he contacted me and informed me what was the progress of the
case, he never did." By letter to Mr. Carter dated December 4,
2003, Pinero wrote: "[O]n September 10 . . . [y]ou told Mr.
Palmer and myself that you would write us the following week and
that you would be up to see us two weeks later. . . . I still
haven't seen you [since September 10]." Pinero then indulged in personal invective and closed: "P.S. THIS DOESN'T MEAN THAT YOU
ARE FIRERED [sic]. I JUST NEED YOU TO DO THE RIGHT THING." By
letter to Mr. Carter dated December 15, 2003, Pinero wrote: [On
September 10,] Mr. Palmer and myself . . . made a list up for you
to follow. You were also supposed to look into starting my
memorandum of law for my Fed Hab. . . . This doesn't mean that
you are firered [sic]. . . . I will never let you off the hook
On January 13, 2004, Mr. Carter sent what appears to be his
first communication to Pinero in the four months since his
September 10 visit. He unjustifiably attempted to change his fee
from $4,000 to $9,000 (or, later, to $6,000). He did not complain
about the $1,200 that was still owed; indeed, he wrote: "your
case did not suffer from your financers' reluctance to pay,
because they paid as required." He did not claim (as he does in
his June 18, 2005 letter to me) that Pinero presented too many
new issues to him and that, "[h]ad it been clear as to what
issues would be the focus of my representation, Mr. Pinero's case
would have been completed long ago." Instead, his January 13,
2004 letter to Pinero said:
. . . [U]nlike the times when we initially met
[starting around January 2003], my caseload increased
. . . [O]f all the financiers, only five? percent
(less than a handful) are making their regular
payments. . . . As a result, I have to reduce my
caseload. . . . Unfortunately, a reduced caseload
will lead to increase[d] costs.
. . . [W]e must renegotiate our contract. . . .
The meaning of "renegotiate" was provided in an enclosed form
letter addressed to "Current Clients." It said:
. . . I will have to increase my fee by about $5,000
. . . [P]aying a fee of what would ultimately amount
to $8,000 or $9,000 . . . is nominal.
Pinero and his stepfather have steadfastly insisted that Mr.
Carter must honor his contracted fee of $4,000. Yet Mr. Carter
did not mention any fee dispute to me for the next 16 months. He
continued to perform some work for Pinero. He sought leave to appeal when the Appellate Division denied coram nobis. Shortly
before leave was denied, he sent me a declaration dated August
20, 2004 saying that he would file a CPL 440.10 motion with the
trial court "within the next 45 days," i.e., by October 4, 2004.
In fact, he filed that motion much later, on May 16, 2005.
On May 24, 2005, Mr. Carter sent Pinero a copy of his motion to
withdraw as counsel and wrote in a cover letter: "for the fees
(or even the increased fee of [an additional] $2,000), it [is]
simply impossible to do anything and will create a burden that
cannot be carried."
Mr. Carter's June 18, 2005 letter to me says, at pages 3-4:
[M]y motion to withdraw was done because of the
twofold reason that  Mr. Pinero and I have been
unable to resolve what will be the substance of his
post conviction relief motion and  our failed
negotiations of a new contract.
. . . To the extent that the enclosed contract had
been in effect upon my initially representing Mr.
Pinero, such contract became void by my verbal
conversations with Mr. Pinero as to how much of an
increase would be agreed upon.
I emphatically disagree that the 2003 contract "became void." An
attorney is not allowed to void a contract on the ground that he
later decides that he quoted too low a fee. Moreover, the New
York Code of Professional Responsibility, Disciplinary Rule
21-10(A)(3) says: "A lawyer who withdraws from employment shall
refund promptly any part of a fee paid in advance that has not
been earned." As best as I can determine, Mr. Carter has only
performed half of the work that he contracted to perform, and
hence he has only earned $2,000 (half of the fee he quoted).
As to the argument that Pinero was insisting on raising new
issues, the Rhines decision forbids a petitioner from using
federal court as a long-term "parking lot" while he makes
multiple trips to state court. That is why my May 4, 2005 order
denied any further time to exhaust, and directed Mr. Carter to
serve and file any Amended Petition by June 1, 2005. Moreover, on
June 23, 2005, the Supreme Court wrote:
. . . An amended habeas petition, we hold, does not
relate back (and thereby escape AEDPA's one-year time
limit) when it asserts a new ground for relief
supported by facts that differ in both time and type from those [facts] the original
pleading set forth.
Mayle v. Felix, ___ S.Ct. ___, 2005 WL 1469153, p. 4 (June 23,
In view of Felix, it seems likely that, as of October 21,
2001, the statute of limitations expired with respect to (a) the
Batson ground in Pinero's pro se proposed Amended Petition,
and (b) the new grounds in Mr. Carter's coram nobis application.
Nevertheless, I will now order what I stated as "my present
intention" in my June 2, 2005 order:
(a) I grant Pinero's longstanding motion to proceed on his
proposed Amended Petition (Docket Item #5, which contains six
grounds and a memorandum ...