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Martinez v. Kirkpatrick

United States District Court, N.D. New York

May 8, 2017

CHRISTOPHER MARTINEZ, Petitioner,
v.
ROBERT KIRKPATRICK, Superintendent, Wende Correctional Facility, Respondent.

          CHRISTOPHER MARTINEZ Petitioner, pro se

          OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL LEILANI J. RODRIGUEZ, AAG Attorneys for Respondent

          OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL MICHELLE ELAINE MAEROV, AAG Attorneys for Respondent

          MEMORANDUM DECISION AND ORDER

          Mae A. D'Agostino, U.S. District Judge

         I. INTRODUCTION

         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. 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.

         On June 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.

         Currently 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.

         II. BACKGROUND

         On 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.

         On the 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 ¶¶ 29-30.

         After 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 you?
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 ...

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