United States District Court, N.D. New York
CHRISTOPHER MARTINEZ Petitioner, pro se
OF THE NEW YORK STATE ATTORNEY GENERAL LEILANI J. RODRIGUEZ,
AAG Attorneys for Respondent
OF THE NEW YORK STATE ATTORNEY GENERAL MICHELLE ELAINE
MAEROV, AAG Attorneys for Respondent
MEMORANDUM DECISION AND ORDER
D'Agostino, U.S. District Judge
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. On May 10, 2011, this Court
dismissed the petition. See Dkt. No. 35. On July 20,
2012, the Second Circuit remanded the May 10, 2011 judgment
"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." Dkt. No. 40 at 5. On August
8, 2012, Frederick Rench, Esq. ("Attorney Rench")
was appointed to represent Petitioner for the evidentiary
hearing. See Dkt. No. 41. On January 3, 2013, the
Court held the evidentiary hearing. See Dkt. No. 56.
On May 22, 2013, the Court denied Petitioner's petition
for a writ of habeas corpus and declined to issue a
certificate of appealability. See Dkt. No. 61 at 34.
7, 2013, after the evidentiary hearing and the Court's
decision, Attorney Rench was terminated as counsel for
Petitioner. See Dkt. No. 68. The Second Circuit
denied Petitioner's motions for certificate of
appealability, appointment of counsel, and in forma
pauperis status on September 24, 2013. See Dkt.
No. 69. Three years later, on September 21, 2016, Petitioner
filed a motion to vacate the May 22, 2013 judgment.
See Dkt. No. 75.
before the Court are (1) Petitioner's motion for leave to
proceed in forma pauperis ("IFP"), (2)
Petitioner's motion to vacate judgment entered on May 22,
2013, and (3) Petitioner's motion to appoint counsel.
See Dkt. Nos. 75-77.
January 3, 2013, this Court held an evidentiary hearing for
the sole purpose of determining whether Petitioner's
criminal trial counsel had an actual or potential conflict
and, if so, whether the conflict adversely affected
Moran's representation. See Dkt. No. 56. On May
22, 2013, after the hearing, this Court denied and dismissed
the petition. See Dkt. No. 61. Petitioner's
motion to vacate judgment now asserts that Attorney Rench had
a conflict of interest that hindered his ability to represent
Petitioner during the evidentiary hearing. See Dkt.
No. 75 at ¶ 4.
day of the evidentiary hearing, at approximately 11:00 a.m.,
Attorney Rench met with Petitioner to discuss preliminary
matters. See Id. at ¶ 28. Before the hearing,
at approximately 1:25 p.m., Attorney Rench revealed to the
Court that he had applied for a position with the Attorney
General's office months before the evidentiary hearing
and that he had interviewed once for the position, but had no
additional contact with the office. See Id. at
¶ 29. At this point, the Court afforded Attorney Rench
an opportunity to discuss the issue with Petitioner and
advised him during a fifteen minute recess "that
[Petitioner] could fire him and have the court appoint new
counsel, but reiterated that the witnesses were already
present, everyone was ready to proceed, and [that he]
didn't do anything wrong." Id. at
discussing the potential conflict with Petitioner, Attorney
Rench stated to the Court:
I believe, September or October of this year, I put an
application in to the Attorney General's Office for the
State of New York, specifically in the litigation department.
Following my submitting my application, I had an interview
with that office; I think it was in November of 2012 . . . .
Since that time, I've had no contact with that office,
except for Miss Rodriguez with respect to this case, and I
have no idea, Judge, whether my application has been acted
upon or not acted upon, and certainly I've not made any
other overtures towards the office to see if I would be
accepted for the position.
Id. at ¶ 31. When the Court reconvened,
Attorney Rench informed the Court that he "spoke to Mr.
Martinez privately about the potential conflict, explained to
him exactly what I placed on the record, advising him that if
he chose, I could be taken off the case. And I believe Mr.
Martinez is going to decide to have me continue on."
Id. Petitioner was asked if he had the opportunity
to privately discuss the matter with Attorney Rench, to which
Petitioner answered "'moments ago.'"
Id. at ¶ 34. The Court then confirmed that
Petitioner waived any potential conflict of interest claim:
THE COURT: And do you understand, Mr. Martinez, that if
ultimately this Court or another Court were to decide against
you, if you agree that Mr. Rench can represent you here
today, that you're pretty much giving up a claim that you
had a conflict of interest here in Mr. Rench representing
MR. MARTINEZ: I do understand.
THE COURT: You understand that? And it would be next to
impossible for you to make an argument at any time in the
future that you did not want Mr. Rench to represent you here
today. You understand that?
MR. MARTINEZ: I do understand.
THE COURT: Knowing all of that, is it your desire to have Mr.
Rench go ahead and represent you in this ...