Michael A. Young, New York, New York, for petitioner Oscar Monzon.
Ryan P. Poscablo, Assistant United States Attorney, U.S. Attorney's Office, S.D.N.Y. New York, NY, for the United States of America.
OPINION AND ORDER
DENISE COTE, District Judge.
Oscar Monzon ("Monzon"), represented by Michael Young ("Young"), has brought a second petition for a writ of habeas corpus. In an Order of March 28, 2013, this Court required counsel for the Government and Mr. Young to address whether: (1) Young may represent Monzon; and (2) whether this petition may be filed in this Court, or whether a motion must first be filed in the Second Circuit Court of Appeals for leave to make a "second or successive" petition in this Court pursuant to 28 U.S.C. § 2255 ("Section 2255"). The Government's response was received by the Court on April 26, 2013, and Monzon's response was received on May 16, 2013. For the following reasons, Young may not represent Monzon in connection with this application and this case absent the informed written consent from his former client Domingo Morisset ("Morisset"), and this petition is transferred to the Second Circuit as a "second or successive" petition of purposes of Section 2255, as required by the procedure set forth in Liriano v. United States , 95 F.3d 119, 123 (2d Cir. 1996).
Monzon was indicted on April 20, 2000, in two counts with conspiring to distribute crack cocaine and cocaine, and to extort narcotics traffickers. A third count charged the substantive crime of extortion. Young represented Morisset, Monzon's co-defendant, in the underlying prosecution. Morisset became a Government cooperator. The Government represents that while Young represented Morisset, that defendant provided "significant information and cooperation concerning Monzon." Young asserts that he has no clear recollection of representing Morisset.
Monzon was convicted at a trial held in 2000. Just prior to trial, the Government filed a prior felony offender information. The judge who presided over the trial, the Honorable Robert J. Ward, sentenced Monzon principally to life imprisonment. Monzon's conviction was affirmed by the Court of Appeals by summary order on June 25, 2003.
On December 9, 2004, Monzon filed a petition for a writ of habeas corpus, and shortly thereafter the case was transferred to this Court. The claims in his petition were rejected in Orders of October 10, 2006 and March 14, 2007. See Monzon v. United States, 05 Civ. 1853 (DLC), 2006 WL 2883013 (S.D.N.Y. Oct. 10, 2006). In connection with those decisions, a hearing was held on the petition's claim that his trial counsel had provided ineffective assistance of counsel. Monzon asserted that his attorney had not followed through on Monzon's instruction to accept a plea offer from the Government that included a stipulated guidelines range of 121 to 151 months' imprisonment. At the hearing, the Court found that the Government had never made an offer to Monzon with that guidelines range, that trial counsel had never told Monzon that such an offer had been made, and that Monzon rejected the plea offer that had been extended to him, which was in the range of twenty years. A motion for reconsideration was rejected on January 9, 2008, and the Court denied a certificate of appealability on that date. Monzon filed a notice of appeal on March 17, 2008, and the Court of Appeals denied Monzon's application for a certificate of appealability on August 29, 2008, pursuant 28 U.S.C. § 2253(c).
In an Order of May 4, 2011, this Court permitted Young to file a submission on behalf of Monzon premised upon Young's proffer that his representation of Monzon would not "touch upon Monzon's guilt or innocence or seek a mitigation of Monzon's sentence based on any reference to the underlying criminal conduct." The 2011 submission addressed the impact of 18 U.S.C. § 3852 on a defendant who had been convicted of offenses involving cocaine base or crack. The Order permitting Young to make the limited application on behalf of Monzon referred to the requirements of New York Rule of Professional Conduct 1.9(a), which applies when counsel is representing a client in a matter that is "substantially related" to the matter in which he represented another client and the interests of the two clients are "materially adverse." Young filed the application for reduction of Monzon's sentence on June 6, 2011. The application was denied by the Court on July 1, 2011. The Second Circuit affirmed the Court's denial of the application on October 10, 2012.
In the instant petition, which bears the date March 20, 2013, and was filed on March 22, 2013, Monzon no longer asserts that the Government made a plea offer of 121 to 151 months which he wished to pursue. Instead, he asserts that his trial attorney provided ineffective assistance when he conveyed a plea offer of twenty years and advised Monzon that his sentencing guidelines range was thirty years to life. According to Monzon, the attorney failed to advise Monzon at that time that he faced a potential guidelines enhancement for the use of weapons, and that that enhancement would result in a life sentence under the sentencing guidelines. As explained by Young, the attorney's advice was deficient because the attorney had not investigated whether the drug conspiracy may have involved guns and had not performed the pertinent guidelines calculations. In support of his claim Monzon relies on the Supreme Court's decision in Missouri v. Frye , 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), which extended the constitutional right of effective assistance of counsel to the plea bargain context, and which Monzon claims provides a basis for relief under Section 2255.
The Court declines to address the merits of this successive habeas petition. Instead, it concludes that the existence of a conflict among clients bars Young from representing Monzon here, and that this petition must be transferred to the Court of Appeals.
"The authority of federal courts to disqualify attorneys derives from their inherent power to preserve the integrity of the adversary process." Hempstead Video, Inc. v. Inc. Vill. of Valley Stream , 409 F.3d 127, 132 (2d Cir. 2005) (citation omitted). "In deciding whether to disqualify an attorney, a district court must balance a client's right freely to choose his counsel against the need to maintain the highest standards of the profession." GSI Commerce Solutions, Inc. v. BabyCenter, L.L.C. , 618 F.3d 204, 209 (2d Cir. 2010) (citation omitted). Although "decisions on disqualification motions often benefit from guidance offered by the American Bar Association (ABA) and state disciplinary rules, such rules merely provide general guidance and not every violation of a disciplinary rule will necessarily lead to disqualification." Hempstead Video, Inc. , 409 F.3d at 132 (citation omitted). Federal courts adjudicating questions involving the ethics of New York attorneys look to the New York Rules of Professional Conduct for guidance. See, e.g., id. at 133 (relying on a previous version of the New York attorney professional conduct rules); Silver ...