Martinez v. Zavaras, 02-1131.

• Decision Date: 02 June 2003
• Docket Number: No. 02-1131.,02-1131.
• Citation: 330 F.3d 1259
• Parties: John Jacob MARTINEZ, Petitioner-Appellant, v. Aristedes W. ZAVARAS, Executive Director, Colorado Department of Corrections; Ken Salazar, Attorney General for the State of Colorado, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

330 F.3d 1259

John Jacob MARTINEZ, Petitioner-Appellant, v. 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.

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.

I

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 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 defense counsel's motion to withdraw from the case. The trial commenced five days later as scheduled. Following a week-long trial, the jury convicted Martinez of first-degree murder.¹

On direct appeal, the Colorado Court of Appeals vacated Martinez's conviction concluding that defense counsel labored under an actual conflict of interest, and remanded the case to determine whether Martinez's waiver was voluntary, knowing, and intelligent. The Colorado Supreme Court reversed, concluding that the record sufficiently supported the trial court's finding that Martinez's waiver was not constitutionally impermissible. In May 1996, Martinez filed a petition for habeas corpus under 28 U.S.C. § 2254 in federal district court, claiming, inter alia, that his waiver of his right to conflict-free representation was not knowing, voluntary, and intelligent. The district court denied habeas relief, but granted a certificate of appealability on the issue of defense counsel's effectiveness as a result of the conflict.

II

Because Martinez filed his habeas petition after April 24, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA") govern this appeal. See Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Given the state court review of the merits of Martinez's claims, habeas relief is not warranted unless the state adjudication "(1) ... was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) ... was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." § 2254(d). We presume that factual determinations made by the state court are correct, and the petitioner bears the burden of rebutting this presumption with clear and convincing evidence. § 2254(e)(1); Fields v. Gibson, 277 F.3d 1203, 1221 (10th Cir.2002). This presumption does not extend to legal determinations or to mixed questions of law and fact. Herrera v. Lemaster, 225 F.3d 1176, 1178-79 (10th Cir.2000). That is, the "deferential standard of review does not apply if the state court employed the wrong legal standard in deciding the merits of the federal issue." Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir.2003).

Sitting en banc, the Colorado Supreme Court reviewed the merits of Martinez's claim that his waiver of conflict-free representation was not voluntary, knowing, and intelligent. In doing so, it enunciated the correct legal standards under Supreme Court precedent. First, it acknowledged that the Sixth Amendment right to effective assistance of counsel contemplates the right to conflict-free representation under Holloway v. Arkansas, 435 U.S. 475, 483-84, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). Next, it noted that this right may be waived, if it is done voluntarily, knowingly, and intelligently. See Estelle v. Smith, 451 U.S. 454, 471 n. 16, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). Finally, it recognized that the trial court bears the duty to ensure that the defendant understands the nature of the conflicts and their effects on counsel's representation before waiving them. Wheat v. United States, 486 U.S. 153, 161, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). Upon announcing these standards, the court conducted a thorough review of the record, and held, with two justices dissenting, that Martinez's waiver was voluntary, knowing, and intelligent.

Defense counsel was subject to two potential conflicts in this case, arising from: (1) his representation of Charlie Blea, a potential witness and suspect; and (2) the prosecution's statement of intent to file a grievance against him for allegedly advising Harris and Olguin not to appear at trial.² We review the five hearings held to consider these conflicts to determine whether the state court acted unreasonably in concluding that Martinez appropriately waived them.

A

In concluding that any conflict arising from defense counsel's representation of Charlie Blea had been properly waived, the Colorado Supreme Court focused on two hearings held in January and February 1988, in which the trial court, prosecutor, and defense counsel each provided a clear explanation of the conflict to Martinez. Defense counsel explained that he had represented Charlie Blea in an unrelated criminal matter, and that Blea was identified as a potential witness in Martinez's case. The court asked Martinez whether he understood that his attorney represented "one of the witnesses against [him]" in the "very recent past," and whether he waived "any type of conflict that may [] arise[] from that representation" and wished to keep defense counsel on the case. (3 R. at 30.) Martinez answered these questions in the affirmative.

Despite these...