330 F.3d 1259 (10th Cir. 2003), 02-1131, Martinez v. Zavaras

Docket Nº:02-1131
Citation:330 F.3d 1259
Party Name:Martinez v. Zavaras
Case Date:June 02, 2003
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1259

330 F.3d 1259 (10th Cir. 2003)

John Jacob MARTINEZ, Petitioner-Appellant,


Aristedes W. ZAVARAS, Executive Director, Colorado Department of Corrections; Ken Salazar, Attorney General for the State of Colorado, Respondents-Appellees.

No. 02-1131.

United States Court of Appeals, Tenth Circuit

June 2, 2003

Page 1260

Howard A. Pincus (Michael G. Katz, Federal Public Defender, with him on the briefs), Assistant Federal Public Defender, Denver, Colorado for the Petitioner-Appellant.

Roger Griffin Billotte (Ken Salazar, Colorado Attorney General, with him on the brief), Assistant Attorney General, Denver, Colorado for the Respondents-Appellees.

Before BRISCOE, ANDERSON and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Convicted of first-degree murder in state court, John Jacob Martinez brought a 28 U.S.C. § 2254 habeas petition in federal district court arguing that his Sixth Amendment right to conflict-free representation was violated. In denying habeas relief, the district court found that Martinez had voluntarily, intelligently, and knowingly waived his right to conflict-free representation. We exercise jurisdiction of the appeal under 28 U.S.C. §§ 1291 and 2253, and affirm.


On April 17, 1987, Martinez and his wife hosted a party at their home. At approximately 1:30 a.m., their neighbor Charles Walker, who lived in the adjoining duplex with his girlfriend Leigh Hinds, complained to Martinez, accusing one of the party-goers of urinating on his garage. An altercation ensued. Martinez ran into his house and returned outside brandishing a knife in the air. Walker fled down the street and Martinez gave chase. Subsequently, Hinds ran after them and found Walker, bleeding and alone. He had sustained at least eight stab wounds, including cuts to his face, scalp, scrotum, and back.

At approximately 3:00 a.m., some of the party-goers, including Charlie Blea, drove Martinez--whose clothes were blood-stained--along with Martinez's wife and

Page 1261

children, to spend the night at the home of Susan Olguin, Martinez's aunt. Upon arriving, Martinez told Olguin's husband, Gregory Harris, that he had stabbed someone in a fight. Walker died the next day due to loss of blood from the multiple stab wounds, and on May 15, 1987, Martinez was charged with first degree murder, one count of a crime of violence, and being an habitual criminal.

The court appointed defense counsel to represent Martinez. During a pre-trial discovery hearing held on January 25, 1988, the prosecution advised the court of a possible conflict of interest arising from defense counsel's representation in an unrelated case of Charlie Blea, whom the government identified as a potential witness at Martinez's trial. Defense counsel explained at the hearing the nature of his former representation of Blea, and Martinez agreed to waive any conflict that might arise from such representation.

At trial, four of the government's witnesses, including Olguin and Harris, failed to appear. Consequently, the trial court granted a continuance and scheduled a new trial to commence on February 22, 1988. Two weeks prior to commencement of the rescheduled trial, the prosecution informed the court and defense counsel that Olguin and Harris had been located and arrested for their failure to appear at the initial trial. Olguin and Harris told investigators that their failure to appear was on defense counsel's advice. At a hearing, the prosecutor informed the court of its intention to file a grievance against defense counsel, and expressed concern regarding the conflict that could arise were Martinez's attorney to remain on the case. The judge ordered counsel to discuss the conflict with Martinez and to return the next day for another hearing on the issue.

At the following hearing, defense counsel had retained his own attorney, Elvin Gentry, who had advised him that the incident would indeed create a conflict. Accordingly, defense counsel requested to withdraw from the case. After discussing the matter with Martinez, the judge proposed to resolve the conflict by prohibiting both parties from interrogating Harris and Olguin as to the reason for their failure to appear at trial, and appointed independent counsel Frank Simons to advise Martinez on the conflict.

The court reconvened on February 12, 1988, at which time the matter was discussed further, including the possibility of Martinez waiving the potential conflict. At this point, a letter was submitted by Martinez, stating that he had decided to keep his attorney and proceed to trial on the scheduled date. Rather than accepting this waiver, the court opted to wait until Martinez had an opportunity to consult with independent counsel.

On February 17, 1988, the court convened to consider the potential conflict yet again. Independent counsel Frank Simons informed the court that he had met with Martinez and advised him regarding the potential for conflict arising from the threatened grievance. After extensive discussion in which the prosecutor, defense counsel, and the court each explained the nature of the conflict to Martinez, Martinez announced his decision to waive his right to conflict-free representation, and the court denied...

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