Kopp v. Fischer

• Decision Date: 16 September 2011
• Docket Number: No. 08–CV–0572 MAT.,08–CV–0572 MAT.
• Citation: 811 F.Supp.2d 696
• Parties: James Charles KOPP, Petitioner, v. Brian FISCHER, Commissioner, Department of Correctional Services, Albany, New York, Respondent.
• Court: U.S. District Court — Western District of New York

811 F.Supp.2d 696

James Charles KOPP, Petitioner,

v.Brian FISCHER, Commissioner, Department of Correctional Services, Albany, New York, Respondent.

No. 08–CV–0572 MAT.

United States District Court, W.D. New York.

Sept. 16, 2011.

Arthur Lawrence Washburn, Jr., Dorset, VT, for Petitioner.

Shawn P. Hennessy, Buffalo, NY, for Respondent.

DECISION AND ORDER

MICHAEL A. TELESCA, District Judge.I. Introduction

Represented by counsel Arthur Washburn, Jr., Esq., James Charles Kopp (“Kopp” or “Petitioner”) has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his detention in Respondent's custody as the result of a judgment of conviction entered on May 9, 2003, for intentional murder following a bench trial on stipulated facts in Erie County Court (Amico, J.).

II. Factual Background and Procedural History

On the evening of October 23, 1998, Petitioner, armed with an SKS semi-automatic rifle, stalked and fatally shot Dr. Barnett Slepian (“Dr. Slepian” or “the victim”), a physician who performed abortions. At the time of the shooting, Dr. Slepian was in the kitchen of his home, with his wife and two of his sons. The bullet struck Dr. Slepian in his back, causing his death.

Aided by two cohorts who shared his militant anti-abortion views, Petitioner fled the country. A massive international manhunt ensued, and Petitioner eventually was apprehended in France by local law enforcement on March 29, 2001. He was extradited to the United States in June of 2001, where he was charged by an Erie County Grand Jury with intentional murder in the second degree (P.L. § 125.25(1)). On November 11, 2002, The Buffalo Evening News published an article in which Petitioner claimed that he did not mean to kill Dr. Slepian, but only meant to injure the doctor so as to prevent him from performing more abortions. The prosecution represented the case to the grand jury and obtained a superceding indictment adding a charge of depraved indifference murder in the second degree, pursuant to New York Penal Law (“P.L.”) § 125.25(2).

On March 11, 2003, Petitioner elected to forego a jury trial in favor of a stipulated-fact bench trial in which the trial judge sat as the trier-of-fact. The only evidence was contained in a thirty-five page written summary of witness testimony and descriptions of exhibits that would be introduced as evidence. The defense and the prosecution each agreed to the specific contents of this document. Both sides also agreed to that the trier-of-fact would not consider any lesser-included offenses.

After a one-day trial, the judge issued a verdict convicting Petitioner of intentionally murdering Dr. Slepian. Petitioner was sentenced on May 9, 2003, to a term of 25 years to life.

On direct appeal, the Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed Petitioner's conviction. People v. Kopp, 33 A.D.3d 153, 817 N.Y.S.2d 806 (App.Div. 4th Dept.2006). By an order dated September 18, 2006, the New York Court of Appeals denied leave to appeal. People v. Kopp, 7 N.Y.3d 849, 823 N.Y.S.2d 779, 857 N.E.2d 74 (N.Y.2006). Kopp sought certiorari from the United States Supreme Court, which was denied.

Petitioner filed two unsuccessful motions to vacate the conviction pursuant to New York Criminal Procedure Law (“C.P.L.”) § 440.10, on February 4, 2008, and December 30, 2008, respectively. During the pendency of his post-conviction collateral proceedings, Kopp timely filed the instant habeas petition. All of his grounds for relief appear to have been fully exhausted, see 28 U.S.C. § 2254(b)(1).

For the reasons that follow, the petition is denied.

III. Standard of Review

It is well-established that a federal habeas court “is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67–68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); see generally 28 U.S.C. § 2254(a). When a petitioner “in custody pursuant to the judgment of a State court” seeks habeas review of any federal constitutional claim that was “adjudicated on the merits in State court,” a habeas writ may issue only if the state court adjudication:

(1) resulted in a decision that 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) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1), (2).

IV. Analysis of the PetitionA. Denial of the Sixth Amendment Right to Counsel

Petitioner contends that he was denied his Sixth Amendment right to the effective assistance of counsel at trial because his attorney operated under an actual conflict of interest due to his concurrent representation of Loretta Marra (“Marra”), an individual charged in federal court with aiding and abetting Petitioner. Although Petitioner waived his attorney's potential conflict of interest during a Gomberg hearing ¹ conducted by the trial court, he now claims that the conflict, because it was “actual” rather than “potential”, was unwaivable as a matter of law.

In addition, Petitioner faults trial counsel for allegedly having “orchestrated” his “confession” to The Buffalo Evening News newspaper and for having induced him, for purely selfish reasons, to forego a jury trial in favor of a stipulated-fact bench trial.

As discussed further below, all of these arguments are without merit.

1. Simultaneous Representation of Petitioner and Marra

a. Overview of the Applicable Legal Principles

The right to conflict-free representation is inherent in the Sixth Amendment right to counsel. Armienti v. United States, 234 F.3d 820, 823 (2d Cir.2000). Thus, a defendant's Sixth Amendment rights may be violated where either (1) the trial court has knowledge of a possible conflict and fails to make inquiries regarding that conflict; (2) there is a per se conflict; (3) there is an actual conflict; or (4) there is a potential conflict. Id. If the trial court fails to inquire into an actual or “per se” conflict, automatic reversal of a conviction is required. Id.

“[C]laims of counsel's conflict of interest that do not qualify as per se or actual are ordinarily treated as ‘potential’ conflicts.” Armienti, 234 F.3d at 824. When a “potential” conflict of interest is implicated, the defendant “must establish both that counsel's conduct fell below an objective standard of reasonableness and that but for this deficient conduct, the result of the trial would have been different, under the familiar standard established by Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Armienti, 234 F.3d at 824.

An individual who is faced with the possibility that his attorney might become conflicted may waive the potential conflict of interest “in order to retain the attorney of his choice.” United States v. Blau, 159 F.3d 68, 74 (2d Cir.1998) (quoting Williams v. Meachum, 948 F.2d 863, 866 (2d Cir.1991)). Such a waiver is valid where it is both knowing and intelligent. Blau, 159 F.3d at 74 (citing Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)); see also United States v. Perez, 325 F.3d 115, 125–28 (2d Cir.2003). Whether a defendant's waiver is knowing and intelligent depends on the circumstances of each individual case, as well as the background and experience of the accused. Blau, 159 F.3d at 74.

b. Background Regarding the Conflict Issue

Kopp originally retained the services of Paul J. Cambria, Jr., Esq. (“Cambria”), who intended to present a standard defense in state court putting the prosecution to its burden of proof. This strategy conflicted with Kopp's desire to mount an ideological defense based upon his belief that his slaying of Dr. Slepian was a morally defensible and correct act and was justified in order to prevent public harm.

Accordingly, Petitioner sought to replace Cambria with Bruce Barket, Esq. (“Barket”), an attorney who was sympathetic to Petitioner's ideology and willing to present his justification defense at trial. At the time, Barket also was representing Loretta Marra (“Marra”) and Louis Malvasi (“Malvasi”), who both had been charged under federal law with obstructing justice by harboring Petitioner while he was a fugitive.

The district court (District Judge Richard J. Arcara, adopting the Report and Recommendation of Magistrate Judge Hugh B. Scott) refused to grant Petitioner's request to have Barket represent him in the federal prosecution, holding that Barket's concurrent representation of Petitioner, Marra, and Malvasi created conflicts of interest (both actual and potential) that could not be waived. With regard to the actual conflict, the district court found that Marra was told that a favorable plea deal was “out of the window” if she agreed to have Barket jointly represent her and Kopp. However, Marra then disavowed her previous interest in a plea deal if it meant that she would have to incriminate Kopp.

The district court noted that the possibility of Marra being called, albeit unwillingly, as a witness for the government, created a potential conflict. The fact that Marra might be subjected to additional charges as an accessory-after-the-fact also created a potential conflict if Barket represented both of them. The district court concluded that both Marra and Kopp clearly understood the nature of the conflict and appeared resolute in their desire to waive the conflict. However, the district court concluded, because of the exceedingly complicated and mercurial way in which the federal proceeding was unfolding, it could not be confident that Kopp or Marra could make a reasonable and knowing waiver.

In addition, the district court found that maintaining the ethical integrity of the Court would be better served by disqualifying Barket from representing Kopp. Pe...