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Martinez v. Kirkpatrick

United States District Court, Second Circuit

May 22, 2013

ROBERT KIRKPATRICK, Superintendent, Wende Correctional Facility, Respondent.

FREDERICK RENCH, ESQ. OFFICE OF FREDERICK RENCH, PLLC Clifton Park, New York, Attorneys for Petitioner.



MAE A. D'AGOSTINO, District Judge.


Petitioner is an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS") at Shawangunk Correctional Facility. Petitioner was convicted, following a jury trial in Oneida County Court, of second degree intentional murder (N.Y. Penal Law § 125.25(1)), first degree assault (N.Y. Penal Law § 120.10(1)), and second degree criminal possession of a weapon (N.Y. Penal Law § 265.03(2)). See Dkt. No. 1 at 1; Dkt. No. 13-15 at 726-28.

On August 6, 2009, Petitioner filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Dkt. No. 1. The petition claimed, among other things, that Petitioner was denied effective assistance of counsel due to his trial counsel's drug addiction and the conflict of interest resulting from his trial counsel's investigation and prosecution. On May 10, 2011, the Court dismissed the petition. See Dkt. No. 35. Specifically, the Court rejected Petitioner's ineffective assistance of counsel claim and found that no per se, actual, or potential conflict of interest existed between Petitioner and his attorney (Robert R. Moran). See id. at 33-36.

On August 18, 2011, the Second Circuit granted a certificate of appealability "solely on the issue of whether Martinez was denied effective assistance of counsel due to a conflict of interest presented by the investigation and prosecution of Moran by the same district attorney's office that prosecuted Martinez." See Dkt. No. 40 at 3. In a summary order and mandate issued on July 19, 2012, the Second Circuit found that this Court erred in finding that Petitioner's conflict of interest claim was adjudicated on the merits in state court and, therefore, no evidentiary hearing was required for the Court to dispose of that claim. See id. at 5. As such, the Second Circuit remanded the case "solely for the purpose of an evidentiary hearing to determine whether an actual or potential conflict of interest existed and, if so, whether the conflict adversely affected Moran's representation." See id.

On January 3, 2013, the Court held an evidentiary hearing and permitted the parties to file both pre- and post-hearing memoranda. The petition is now ripe for disposition on the issues for which it was remanded by the Circuit.


A. Indictment and pretrial proceedings

On February 5, 2003, Petitioner was indicted for second degree intentional murder (N.Y. PENAL LAW § 125.25(1)), second degree depraved indifference murder (N.Y. PENAL LAW § 125.25(2)), first degree intentional assault (N.Y. PENAL LAW § 120.10(1)), first degree depraved indifference assault (N.Y. PENAL LAW § 120.10(2)), and second degree criminal possession of a weapon (N.Y. PENAL LAW § 265.03(2)). See Dkt. No. 12 at 5; Dkt. No. 13-1 at 5.

On April 10, 2003, a Wade/Huntley [1] hearing was held to determine the admissibility of photographic array identification procedures and Petitioner's statements to police. See Dkt. No. 13-15 at 14-64.[2] At the hearing, the prosecutor conceded that Petitioner's statements were not admissible in his case in chief because Petitioner requested an attorney and was not provided with one prior to making the statements. See id. at 59-60. The trial court ruled that Petitioner's statements were only admissible for impeachment purposes if Petitioner testified. See id. at 60. It also ultimately ruled that because the photographic identification procedures were not unduly suggestive or prejudicial, witnesses would be permitted to make in-court identifications of Petitioner. See Dkt. No. 13-1 at 57.

B. The trial[3]

A jury trial was held from June 9, 2003 to June 13, 2003 before Judge Barry Donalty. The prosecutor was Paul Hernon of the Oneida County District Attorney's Office, and Petitioner was represented by Robert Moran. According to the testimony adduced at trial, on November 27, 2002, Petitioner and his friend visited Jennifer Halwig, Petitioner's fiancee, before going out for the evening. See Dkt. No. 13-15 at 418-20. Petitioner was wearing a red baseball cap. See id. at 420.

On November 28, 2002, at approximately 12:30 a.m., Lee Ann Schavone was at Anthony's Bar in Utica, New York. See id. at 313-16. The victim, Gregory Moore, approached her and was bothering her. See id. at 315-16. Petitioner, who was wearing a red hat or bandanna, intervened and told Moore to leave Schavone alone. See id. at 316-17, 330. Moore grabbed Petitioner's gold chain and asked Petitioner what he was "going to do." See id. at 317. Petitioner did not respond, and eventually Petitioner and Moore separated. See id. at 318-19, 330-31. Schavone did not see Moore or Petitioner with a gun. See id. at 317-18, 331.

Schavone eventually left the bar, got into her truck, and pulled up to the front of the bar to wait for friends. See Dkt. No. 13-15 at 319-20. Once there, Schavone got out of her truck and talked to some friends on the side of the building. See id. at 321. As she returned to her truck, she saw Petitioner, who appeared nervous. See id. at 322. When she asked Petitioner if he was going to fight with Moore, Petitioner responded that he was not, and told Schavone to leave. See id. at 322-23, 333. As Schavone walked toward her truck, she heard gunshots, and then saw Moore lying on the ground. See id. at 323. At this point, Schavone got into her truck and left. See id.

On the night in question, Raymond Harris was also at Anthony's Bar. See Dkt. No. 13-15 at 280-85. Moore asked Harris for a ride, and at approximately 2:00 a.m., Harris left the bar to see if Moore was waiting for him outside. See id. at 282. Harris heard a gunshot, and saw Moore fall to the ground. See id. at 285-86, 299-300, 336-39, 341-43, 350-51. According to Harris, Petitioner was standing several feet away from Moore and was pointing a gun at him. See id. at 286, 294, 309-310, 345, 402. Harris turned to go back inside the bar, heard a second gunshot, and felt a sensation in his arm. See id. at 286-87. Once he was inside the bar, Harris heard three or four more gunshots. See id. at 287. Harris testified that he thought Petitioner was wearing a blue baseball cap, but was not certain of the color. See id. at 289, 291, 298. Harris identified Petitioner's picture in a photo array prepared by police one day after the shooting. See id. at 308, 310-12.

Harris suffered a gunshot wound that passed through the soft tissue of the left side of his chest and through his left arm. See Dkt. No. 13-15 at 288, 291-93, 359-62, 502-507. He spent three or four days in the hospital, suffered nerve damage, and, at the time of trial, he continued to have no sensation in two fingers on his left hand. See id. at 292-93, 554-58. Police recovered five small, clear baggies containing a white powdery substance from the zippered part of the sleeve of Harris's coat. See id. at 372-73. Harris denied knowledge of the baggies, and denied being at the bar to sell drugs. See id. at 297, 300.

Moore died from injuries sustained as a result of the shooting. See Dkt. No. 13-15 at 233-35, 580-93, 596-99. Five projectiles and one bullet fragment were recovered from his body. See id. at 588-89. No weapon was found on or near Moore's body, and no shell casings were recovered. See id. at 241-42, 267, 349, 353, 389.

At around 3:00 a.m. on November 28, 2002, Jennifer Halwig received a telephone call from Petitioner's aunt, Nancy Reyes. See Dkt. No. 13-15 at 424. Reyes heard about the shooting and was worried because she did not know if Petitioner was out that evening. See id. Halwig called Petitioner, and when they eventually spoke at around 4:00 a.m., Petitioner told Halwig he was with friends and that he would call her later in the morning. See id. at 425-28.

At approximately 3:00 a.m., Petitioner visited Wykenda Barnes at her apartment located on the first floor of the Brandagee Apartments in Utica. See id. at 534-36. Barnes retrieved her coat, and when she returned to the door to meet Petitioner, he was speaking with Peter Nieves, who lived in an apartment on the third floor of the complex. See id. at 499-500, 538-39. Petitioner and Barnes left the apartment building and got into a car driven by Petitioner's aunt, Nancy Reyes. See id. at 538-39. Petitioner told his aunt to get him home and "off the street." See id. at 541-42. Petitioner was rubbing his head and seemed nervous, like something was bothering him. See id. at 541-42. Petitioner left the apartment at approximately 9:30 a.m. with Victor Arimont, Reyes's fiance. See id. at 547.

According to Peter Nieves, he was asleep in his apartment on the third floor of the Brandagee Apartments when he was awakened by the security buzzer for his apartment. See id. at 449-52. When he arrived in the lobby, he saw Petitioner and Wykenda Barnes, another resident of the apartment complex. See id. at 452. Nieves shook hands with Petitioner, spoke to him briefly, and returned to his apartment. See id.

At trial, Nieves testified that he did not remember the specific conversation he had with Petitioner. See id. at 454-55. Nieves testified that he was taking controlled substances for health issues and depression and could not "remember exactly what [he] said." See id. at 453. Nieves remembered testifying at the grand jury, but when he was asked if his grand jury testimony refreshed his recollection regarding the conversation he had with Petitioner, Nieves stated that he did not "remember having this conversation exactly in [his] head." See id. at 455. He denied being threatened not to testify by Petitioner or his associates, but admitted that he called the prosecutor and told him about an incident where he was walking toward a store and an unknown person in a car tried to cut his arm and tried to pull him into the car. See id. at 455-56. The prosecutor was granted permission, over trial counsel's objection, to treat Nieves as a hostile witness. See id. at 457.

Nieves denied knowledge of the content of his statement to police or his grand jury testimony. See id. at 458-80. He testified that he was taking drugs and did not remember telling police that Petitioner told Nieves he was in trouble, that someone tried to take his chain, that Petitioner shot someone, or that Petitioner made a gesture with his hand across his neck. See id. at 458, 461-62, 479-80. Nieves testified that the police found him at work and asked him to come to the police station to answer questions about Petitioner. See id. at 472-73. Nieves testified that he went home, met his wife and daughter, and the three of them walked to the police station. See id. at 473-74.

When he arrived at the police station, Nieves testified that the police told him they had a tape of his meeting with Petitioner in the lobby of the apartment building, and that Petitioner made a gesture with his hand. See Dkt. No. 13-15 at 462-64, 476. Nieves denied telling police that the gesture meant that the victim was dead. See id. at 463. Nieves claimed that he signed his statement to police without reading it because he wanted to leave the police station, and he did not remember placing his initials at various places in the statement. See id. at 459-61. Nieves further testified that he did not recall telling the grand jury that Petitioner told him that he shot someone. See id. at 476-78. Nieves testified that on the morning he was scheduled to testify at trial, his brother-in-law told him, "[i]f you can't remember, you can't remember." See id. at 465-66. Nieves also testified that he told a different prosecutor before trial that he could not remember his conversation with Petitioner, and that the prosecutor told him that he could not force Nieves to remember. See id. at 465.

On cross-examination, Nieves testified that the prosecutor threatened him with perjury charges, and that the prosecutor told him he was not telling the truth when he said he could not remember. See id. at 483. Under further questioning by the prosecutor, Nieves clarified that the prosecutor told him to tell the truth, and stated that if he did not, he could face perjury charges. See id. at 483-84.

The testimony at trial also established that, on November 28, 2002, at approximately 11:00 a.m., Petitioner called Halwig and informed her that he was not going to Halwig's grandmother's house for Thanksgiving dinner. Instead, he was going to celebrate the holiday with his relatives in New York City. See id. at 422-24.

Bystanders interviewed at the scene of the shooting gave police conflicting information. See id. at 392. In addition to the information provided by Harris and other witnesses, police were informed by unidentified bystanders that the shooter got out of a vehicle, shot Moore twice, then fired two more shots at Moore once he collapsed, and that the shooter then left in the vehicle. See id. at 254-56, 392-98. One unidentified bystander told police that the gunshots were fired from inside a vehicle, see id. at 268, and another told police that the shooter left the scene in a silver Nissan. See id. at 254. Police also received conflicting descriptions of the suspect's clothing. See id. at 522, 526-28. Daniel Doyle, Michael Davis, and Hans Kunz testified that they witnessed the shooting, but could not identify the shooter. Each testified that the shooter approached Moore on foot, shot him at close range, and that after Moore was shot and collapsed, the shooter fired additional shots. See id. at 335-40, 344-46, 349-52, 356, 400-05. Kunz also testified that the shooter was wearing a red bandanna. See id. at 402, 409. Approximately twenty-five people were shown photo arrays, but only Harris identified Petitioner. See id. at 528.

Petitioner became a suspect in the shootings on November 29, 2002, after police spoke with Jennifer Halwig's mother. See id. at 515, 518-19. Police discovered that Petitioner did not have a valid New York State pistol permit. See id. at 498. On November 30, 2002, police spoke with Nancy Reyes and charged her with hindering prosecution. See id. at 515-16. Petitioner was eventually found in New York City, and on December 22, 2002, members of the Utica Police Department transported Petitioner back to Utica to face charges. See id. at 518.

At the close of the People's proof, Petitioner's trial counsel, Robert Moran, moved to dismiss the murder charges on the ground that there was no proof that Petitioner shot Moore. See id. at 602-605. The trial court dismissed the depraved indifference murder and assault charges (counts two and four of the indictment), but denied Moran's motion to dismiss the remaining counts. See id. at 604-06.

Moran then called Victor Arimont to testify on Petitioner's behalf. Arimont testified that Petitioner and his family made plans to travel to New York City approximately one week prior to the shooting. See id. at 607-09. Arimont picked Petitioner up on November 28, 2002 at approximately 9:30 a.m., and took him to Reyes' home to pack for the trip. See id. at 610-12. Petitioner, Reyes, and several children left for New York City at approximately 11:30 a.m. See id. at 612. Petitioner called no other witnesses and rested. See id. at 617.

The jury began its deliberations on June 12, 2003. On June 13, 2003, the jury convicted Petitioner of second degree intentional murder, first degree intentional assault, and second degree criminal possession of a weapon. See id. at 726-28.

C. Post-trial

In August 2003, after Petitioner's trial but before Petitioner was sentenced, Moran was arrested and charged with third degree criminal possession of a controlled substance. See Dkt. No. 13-1 at 58. Upon Moran's arrest, Petitioner retained Anthony LaFache to represent him. See id.

On February 19, 2004, LaFache filed a motion to set aside the verdict in which he argued that Moran had been using methamphetamine during Petitioner's trial and, as a result, Moran was ineffective for failing to (1) properly prepare for trial; (2) meet with Petitioner; (3) question Harris about his use of drugs at the time of the shooting and any favorable treatment he may have received in exchange for his testimony; and (4) hire an investigator despite being paid to do so. See id. at 21-22, 59; Dkt. No. 13-6 at 5-6.[4] LaFache also argued that Moran was under the influence of methamphetamine throughout his representation of Petitioner. See id. Finally, LaFache argued that it violated Petitioner's right to a fair trial "not to have advised him of the ongoing investigation of his attorney while the trial was proceeding." See id. at 22. In response, the prosecution argued that there was no proof that Moran used drugs during his representation of Petitioner, or that any alleged drug use impaired Moran's ability to represent Petitioner. See id. at 59-60.

On March 3, 2004, the trial court denied LaFache's motion, finding that there was no proof Moran was under the influence of drugs during the trial, and that Moran diligently represented ...

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