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James Charles Kopp, 11761-055 v. United States of America

July 27, 2011


The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge



Pending before the Court is a motion by petitioner James Kopp to vacate his sentence pursuant to 28 U.S.C. § 2255. In support of his motion, petitioner submits 23 grounds for relief with separate headings for each. Petitioner, however, raised these arguments verbatim or in substance in his direct appeal to the United States Court of Appeals for the Second Circuit, which considered but rejected them and affirmed petitioner's conviction. See generally U.S. v. Kopp, 562 F.3d 141 (2d Cir. 2009). Additionally, nearly all of the arguments raised here relate in some way to petitioner's central desire to present a justification defense to the charges against him. The Second Circuit held explicitly on appeal "that the evidence presented in this case was wholly insufficient to support either a 'necessity' or 'defense of others' justification defense under any reasonable articulation." Kopp, 562 F.3d at 145 (citations omitted). Respondent opposes the pending motion precisely because petitioner has not raised any substantive argument that the Second Circuit did not consider already.

The Court has deemed the motion submitted on papers pursuant to Rule 78(b) of the Federal Rules of Civil Procedure. For the reasons below, the Court denies the motion.


This case concerned petitioner's fatal shooting of Dr. Barnett Slepian on October 23, 1998. Dr. Slepian was a Buffalo-area physician who performed abortions among other gynecological services. On October 17, 2000, respondent filed a two-count indictment against petitioner. Count One charged petitioner with intentionally injuring, intimidating, and interfering with Dr. Slepian because he provided reproductive health services, in violation of 18 U.S.C. § 248(a)(1). Count One also specified that Dr. Slepian's death resulted from petitioner's conduct, in violation of 18 U.S.C. § 248(b). Count Two charged petitioner with using a firearm to commit a crime of violence and causing a murder in the course of that conduct, in violation of 18 U.S.C. §§ 924(c) and (j)(1).

Of the many pretrial issues that arose, the issue of attorney conflict of interest warrants a brief mention. As is well documented in the record, petitioner was represented by several attorneys during pretrial proceedings. These attorneys wanted to mount a standard defense that would put respondent to its proof with respect to all of the elements of the two counts in the indictment. That is, petitioner's retained and assigned attorneys wanted to challenge respondent's proof that petitioner shot Dr. Slepian as described in the indictment. This strategy conflicted with petitioner's wishes. Petitioner wanted to mount an ideological defense of justification. As petitioner explains in his motion papers, "[r]egardless of my chances of being acquitted through a traditional 'I didn't do it' defense, I was uncomfortable with mounting such a defense. I did not want to try to 'get off' by telling a lie about what I believe to be a morally defensible and correct act." (Dkt. No. 385 at 15.) Accordingly, petitioner sought Court permission to be represented by Bruce Barket ("Barket"), an attorney who was sympathetic to petitioner's ideology and who was willing to present his preferred justification defense at trial. Petitioner wanted Barket's representation even though Barket simultaneously was representing Dennis Malvasi ("Malvasi") and Loretta Marra ("Marra") on charges that they obstructed justice by harboring petitioner and aiding and abetting his fugitive status.

The Court ultimately refused to grant petitioner permission to have Barket represent him. Affirming a prior decision and order by Magistrate Judge Hugh B. Scott, the Court held that Barket's attempt to represent petitioner, Malvasi, and Marra created a conflict of interest that could not be waived. With respect to actual conflicts of interest, petitioner abandoned plans to fight extradition from France and to mount a standard defense against his charges in large part to obtain a more lenient prosecution of Marra. Marra lost one opportunity to obtain a favorable plea arrangement because of interference from Barket's simultaneous representation. At the same time, Barket arranged for petitioner to confess his role in the shooting to the media for the primary purpose of helping Malvasi and Marra. As for potential conflicts of interest, the Court found that any eventual trial of petitioner would force Barket to compromise his advocacy for at least one of his clients in some way. Simply put, Barket would need Marra either as a character witness or as part of a justification defense, though that would jeopardize Marra's plea negotiations. Once the Court denied petitioner his preferred counsel, he chose to proceed pro se.

The Court conducted petitioner's jury trial in January 2007. On January 25, 2007, the jury convicted petitioner on both counts in the indictment. On June 19, 2007, the Court sentenced petitioner to life imprisonment on Count One and a consecutive term of 10 years of imprisonment on Count Two.

On June 27, 2007, petitioner filed a notice of appeal with the Second Circuit to challenge his conviction. The Second Circuit appointed counsel for petitioner but also permitted him to submit his own briefing in addition to any briefing from counsel. Through their combined briefing, petitioner and his appellate counsel raised the following issues for the Second Circuit's consideration:

1. Petitioner's statements to the media should have been suppressed;

2. If not suppressed then petitioner's statements should have been presented at trial in unredacted form;

3. Petitioner should have been allowed to present a justification defense and to present evidence that he did not intend to kill Dr. Slepian;

4. Petitioner's due process rights were violated when he was prohibited from submitting evidence that would support a lesser included offense to murder;

5. Petitioner's equal protection rights were violated because a similarly situated defendant would have been allowed to present a justification defense;

6. Petitioner was prejudiced by respondent's presentation of a fraudulent "shooter's view" photograph of Dr. Slepian's house;

7. Respondent improperly asked the jury to infer intent to kill on the basis of false evidence;

8. Petitioner was prejudiced by a tardy ruling on a motion in limine by respondent to redact statements that ...

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