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Pepe v. Walsh

June 13, 2008

VINCENT PEPE, PETITIONER,
v.
JAMES WALSH, RESPONDENT.



MEMORANDUM-DECISION AND ORDER

MEMORANDUM-DECISION AND ORDER

A. Background

Petitioner, Vincent Pepe, by and through his attorneys of record, commenced this action on July 19, 2004, by filing a Petition for Writ of Habeas Corpus. (Docket No. 1). Petitioner challenges the constitutionality of his 1995 conviction in a New York State court on four counts of Second Degree Murder, one count of Third Degree Criminal Possession of a Weapon, one count of Second Degree Criminal Possession of a Weapon, two counts of First Degree Robbery, and Third Degree Arson. Respondent filed submissions in opposition on January 21, 2005. (Docket Nos. 13, 14).

In his first claim for habeas corpus relief, Petitioner contends that was denied the effective assistance of counsel in violation of his rights under the Sixth Amendment. Specifically, Petitioner claims that he was represented by Attorneys George F. Aney and Joseph Hobika, Jr. during the initial stage of the police investigation in October 1993 until his arraignment in March 1994. Petitioner argues that Attorneys Aney and Hobika were operating under a conflict of interest during this period, as they were simultaneously representing other targets of the police investigation and potential government witnesses before the grand jury.

Petitioner claims that these conflicts of interest tainted the pre-trial and post-trial proceedings, causing the allegedly erroneous admission of prejudicial evidence. Petitioner further suggests that Attorneys Aney and Hobika may have improperly revealed confidential information obtained from Petitioner during the course of their representation.

In addition, Petitioner asserts that his trial attorney, Kenneth Ray, Esq., was unconstitutionally ineffective because he failed to adequately address the conflict of interest issue and its potential impact on Petitioner's trial. Although not specifically identified in the Petition as a separate claim for habeas relief, Petitioner's supporting papers make clear his intention to assert a claim for ineffective assistance of trial counsel with respect to Attorney Ray.*fn1

B. Procedural History

This case was referred to the undersigned on August 9, 2007, by the Honorable Norman A. Mordue, Chief United States District Judge, for further proceedings and, ultimately, for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(A) and (B). (Docket No. 19).

On October 12, 2007, this Court issued an Order (Docket No. 20) directing counsel to address the following three questions: (1) whether Petitioner's ineffective assistance of counsel claims were exhausted and/or procedurally barred; (2) whether a "Sparman hearing" is necessary to afford Attorneys Aney and Hobika an opportunity to address the factual allegations underlying Petitioner's claim; and (3) whether a Sparman hearing should be held to permit Attorney Ray an opportunity to explain his allegedly deficient performance in failing to adequate raise and address the conflict of interest issue.

Petitioner filed a memorandum of law in response to this Court's Order on January 16, 2008. (Docket No. 24). Respondent submitted a memorandum of law and affidavit addressing the questions set forth in this Court's Order on April 28, 2008. (Docket Nos. 27, 28). Petitioner filed a letter brief in reply on May 20, 2008. (Docket No. 30). Respondent filed a letter brief on May 28, 2008. (Docket No. 31).

Respondent concedes that Petitioner properly exhausted the ineffective assistance of counsel claims and further acknowledges that the claims are not procedurally barred and may be reviewed by this Court on the merits under the applicable AEDPA standard of review. (Docket No. 27, at pp. 8, 11). As such, this Court must now determine whether a Sparman hearing should be held with respect to the claims involving Attorneys Aney/Hobika and the claim concerning Attorney Ray. For the following reasons, this Court finds that such a hearing is both necessary and appropriate as to both claims.

C. Sparman Hearing (Aney & Hobika)

In Sparman v. Edwards, the United States Court of Appeals for the Second Circuit held that "a district court facing the question of constitutional ineffectiveness of counsel should, except in highly unusual circumstances, offer the assertedly ineffective attorney an opportunity to be heard and to present evidence, in the form of live testimony, affidavits, or briefs." Sparman v. Edwards, 154 F.3d 51, 52 (2d Cir.1998).

In the present case, Respondent contends that a Sparman hearing is unnecessary for three principal reasons. First, Respondent argues that the state court's determinations with respect to Petitioner's ineffective assistance of counsel claims survive AEDPA review as a matter of law, rendering a further hearing unnecessary. Second, Respondent asserts that Petitioner is not entitled to an evidentiary hearing pursuant to 28 U.S.C. § 2254 (e)(2) because he failed to develop the factual basis of his claims in the state courts. Third, Respondent suggests that, even assuming further evidence is necessary, any such evidence can and should be provided via affidavits and further briefs, rather than an evidentiary hearing involving live testimony.

1. State Court Determination

It is well-settled that "[t]he right to counsel under the Sixth Amendment entails 'a correlative right to representation that is free from conflicts of interest.'" United States v. Levy, 25 F.3d 146, 152 (2d Cir.1994) (quoting Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 ...


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