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VASQUEZ v. PARROTT

November 2, 2005.

MIGUEL VASQUEZ, Petitioner,
v.
MICHAEL G. PARROTT, Respondent.



The opinion of the court was delivered by: JOHN KOELTL, District Judge

OPINION & ORDER

Miguel Vasquez, appearing pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 seeking an Order vacating two judgments of conviction. The judgments were entered on December 2, 1996 by the Supreme Court of the State of New York, New York County, on the petitioner's guilty plea to two counts of attempted robbery in the first degree. The petitioner argues that his Sixth Amendment right to the effective assistance of counsel was violated because of a conflict of interest between the petitioner and his trial counsel, Patrick J. Brackley ("Brackley"), and because of Brackley's failure to pursue the petitioner's second pro se speedy trial motion.

The Court has received and reviewed the November 10, 2004 Report and Recommendation of Magistrate Judge Henry Pitman, which recommends that the petition be dismissed. The Report and Recommendation also recommends that the Court decline to issue a certificate of appealability pursuant to 28 U.S.C. § 2253. The Court has also received the petitioner's objection to the Report and Recommendation, which objects to the Magistrate Judge's conclusion that the petitioner has failed to demonstrate a conflict of interest between the petitioner and his former attorney, and to the conclusion that Brackley's failure to support the petitioner's second speedy trial motion did not amount to ineffective assistance of counsel. The petitioner asks that the petition for a writ of habeas corpus be granted or, in the alternative, that a certificate of appealability be granted. (Petitioner's letter dated Nov. 16, 2004 ("Petitioner's Objection").) The petitioner later requested, in the alternative, that his petition be stayed to allow him to exhaust his unexhausted ineffective assistance of counsel claim. (Petitioner's Ltr. dated Aug. 8, 2005.)

  Pursuant to Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636 (b) (1), the Court has reviewed de novo the Magistrate Judge's disposition of the petitioner's claims that there was a conflict of interest between the petitioner and his former attorney, and that the failure of the petitioner's former attorney to support the petitioner's second speedy trial motion amounted to ineffective assistance of counsel. Having conducted a de novo review, for the reasons explained below and in the Magistrate Judge's thorough Report and Recommendation, the Court finds that the objections are unfounded, and the Court adopts the findings of Magistrate Judge Pitman's Report and Recommendation, except as noted below.

  I.

  The following is a summary of the relevant facts. On September 15, 1995, the petitioner allegedly attempted to rob a victim while threatening him with a knife. (Transcript dated Nov. 18, 1996 ("Nov. Trans.") at 5, attached at Ex. I to Declaration in Opposition to Petition for a Writ of Habeas Corpus, dated May 20, 2003 ("King Decl.").) On September 17, 1995, a Complaint was filed against the petitioner, and on October 4, 1995, Indictment No. 8974/95 was filed, which charged the petitioner with attempted robbery in the first degree and various lesser crimes under New York State law. (Affidavit in Support of Motion to Dismiss Indictment for Denial of Right to Speedy Trial, sworn to Nov. 1, 1996 ("Speedy Trial Aff."), attached to Ex. D to Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus dated Feb. 18, 2002 ("Habeas Petition").) The defendant was arraigned on Indictment No. 8974/95 on October 19, 1995. (Affirmation of Susanna De La Pava, dated Dec. 5, 2000 ("De La Pava Aff.") ¶ 4, attached at Ex. G to King Decl.) On January 30, 1996, the defendant was arraigned on Indictment No. 11968/95, which charged the petitioner with robbery in the first degree and various lesser crimes. (Id.) On December 19, 1995, Brackley was assigned to represent the petitioner. (Id. ¶ 5.)

  On July 15, 1996, Brackley filed a pro se motion, prepared by the petitioner, seeking dismissal of Indictment No. 8974/95 for violation of New York state statutory speedy trial rules. (Motion to Dismiss Indictment, attached at Ex. F to King Decl.) Justice Weissberg denied the motion on July 29, 1996. (Opinion dated July 29, 1996, attached to Ex. F to King Decl.)

  On September 13, 1996, the petitioner filed a disciplinary complaint against Brackley with the Departmental Disciplinary Committee of the New York State Supreme Court, Appellate Division, First Department (Disciplinary Complaint, dated Sept. 13, 1996, attached to Ex. A to Petition in Support of Writ of Habeas Corpus, dated Feb. 18, 2002.) The complaint alleged that Brackley had failed to meet with the petitioner to discuss his case and had failed to appear on scheduled court dates. (Id.) The complaint also alleged that Brackley had failed to file pretrial motions with the court or to argue on behalf of petitioner's pro se motions, and that Brackley had lied to the petitioner on several occasions. (Id.) The petitioner made similar allegations in subsequent letters that he sent to the Disciplinary Committee on September 18, 1996; October 5, 1996; October 25, 1996; November 23, 1996; and February 3, 1997. (Letters dated Sept. 18, 1996; Oct. 5, 1996; Oct. 25, 1996; Nov. 23, 1996; and Feb. 3, 1997; attached to Ex. A to Habeas Petition.) On February 11, 1997, the Disciplinary Committee informed the petitioner that it had dismissed the complaint. (De La Pava Aff. ¶ 17.) The petitioner subsequently requested reconsideration of the dismissal, and on May 15, 1997, the Disciplinary Committee informed the petitioner that, after conducting an independent review of its decision, it would adhere to its original decision. (Id.)

  On November 4, 1996, the petitioner submitted a second pro se motion that again sought dismissal of Indictment No. 8974/95 for violation of New York State statutory speedy trial rules. (Speedy Trial Aff.) Brackley did not argue in support of the petitioner's motion. (Nov. Trans. at 2-4.) Justice Wetzel denied the motion. (Id. at 4.)

  On November 18, 1996, immediately after his motion was denied, the petitioner pleaded guilty to two counts of attempted robbery in the first degree in satisfaction of both indictments as a result of an agreement with the prosecution. (Id. at 4-10.) Pursuant to the agreement, the petitioner was to be sentenced to five to ten years on both counts, the sentences to run concurrently. (Id. at 8.) During the plea allocution, Justice Wetzel reviewed the charges against the petitioner and confirmed that the petitioner understood that he was giving up his right to trial by jury and that the petitioner was pleading guilty voluntarily. (Id. at 7-9.) Moreover, before accepting the petitioner's guilty plea, Justice Wetzel confirmed that the petitioner had consulted with Brackley regarding the plea and was satisfied with the service that Brackley provided him. (Id. at 9.)

  On December 3, 1996, when the petitioner appeared before Justice Wetzel for sentencing, the petitioner submitted two pro se motions to withdraw his guilty pleas pursuant to New York Criminal Procedure Law § 220.60. (Transcript dated December 3, 1996 ("Dec. Trans."), attached at Ex. J to King Decl., at 2-3.) In his motions, the petitioner alleged, among other things, that he was denied effective assistance of counsel because Brackley failed to argue in support of the petitioner's pro se speedy trial motions, file bail applications, seek dismissal based on the state's delay in providing the petitioner with grand jury minutes, and that Brackley had only informed him about pertinent motions after the petitioner made a complaint to the Departmental Disciplinary Committee. (Motions to Withdraw Guilty Pleas, dated Nov. 30, 1996, attached at Ex. K to King Decl.)*fn1 The petitioner stated that he "didn't want present counsel to represent [him] for trial" because Brackley was "neglecting" him. (Dec. Trans. at 5.) The motions were denied and the petitioner was sentenced to two concurrent terms of imprisonment of five to ten years. (Id. at 10-11.)

  On December 21, 2000, Justice Wetzel denied the petitioner's motion pursuant to C.P.L. § 440.10 to vacate his judgment of conviction on both counts. The Court rejected the petitioner's argument that there was a violation of the statutory speedy trial rules. The Court found that the only remedy with respect to such alleged violations was a direct appeal to the Appellate Division. The Court also denied on the merits the petitioner's claim that he was denied effective assistance of counsel because his attorney was subject to a "conflict of interest" based on the petitioner's pending disciplinary complaint against his attorney. The Court found: "The fatal flaw in the defendant's argument is the assertion that the mere filing of a complaint with the Disciplinary Committee creates a conflict requiring the appointment of new counsel. . . . This Court emphasizes that there is nothing in the records to suggest that the disciplinary complaint had merit. To be sure, the filing of a complaint, standing alone, does not create a conflict of interest." (Decision and Order dated Dec. 21, 2000 at 4, attached at Ex. G to King Decl.)

  Thereafter, the petitioner appealed to the Appellate Division both his judgments of conviction and the denial of his motion pursuant to C.P.L. § 440.10. The Appellate Division found that the petitioner had received "meaningful representation in connection with his highly advantageous guilty pleas." People v. Vasquez, 731 N.Y.S. 2d. 167, 168 (App.Div. 2001). The Court also found that:
There was no conflict of interest adversely affecting counsel's representation of the defendant. Defendant's meritless complaint to the Departmental Disciplinary Committee did not create such a prejudicial conflict. . . . Defendant was not deprived of meaningful representation as a result of counsel's failure to pursue defendant's pro se speedy trial motion addressed to the attempted robbery indictment. Based on our examination of the record, we conclude that such motion would have been unavailing.
Id. at 169 (internal citation omitted).

  On March 18, 2002, the petitioner filed the present petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking an Order vacating the two judgments of conviction.*fn2 On November 10, 2004, Magistrate Judge Pitman issued a Report and Recommendation that recommended that the petition be dismissed. (Report and Recommendation, dated Nov. 10, 2004.) On November ...


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