16-388-pr
Martinez v. Capra

                     UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT

                                SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 12th day of January, two thousand seventeen.

    PRESENT: DENNIS JACOBS,
             ROBERT D. SACK,
             SUSAN L. CARNEY,
                           Circuit Judges.

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    GEORGE MARTINEZ,
             Petitioner-Appellant,

                 -v.-                                               16-388-pr

    MICHAEL CAPRA, Superintendent, Sing
    Sing Correctional Facility.
             Respondent-Appellee,

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    FOR APPELLANT:                        BRIAN H. POLOVOY (with Karen S.
                                          Hart on the brief), Shearman &
                                          Sterling LLP, New York, NY.




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                           Andrew C. Fine (with David Crow
                           on the brief), The Legal Aid
                           Society, New York, NY.

FOR APPELLEES:             T. CHARLES WON (with Nancy D.
                           Killian on the brief), for
                           Darcel D. Clark, District
                           Attorney of Bronx County, Bronx,
                           NY.

     Appeal from the judgment of the United States District
Court for the Southern District of New York (Abrams, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court be
AFFIRMED.

     George Martinez appeals from the judgment of the United
States District Court for the Southern District of New York
(Abrams, J.), denying his petition for a writ of habeas
corpus.1 Martinez was indicted for burglary and was offered
a plea agreement in which he would receive a sentence of
five-and-one-half to eleven years in exchange for pleading
guilty. He rejected the proposal and was convicted at
trial. Because of his prior felony convictions, Martinez
was sentenced to a prison term of seventeen-and-one-half
years to life. Martinez asserts that his lawyer, Peter
Cervini (“Trial Counsel”), provided constitutionally
deficient assistance at the plea bargaining stage, and
requests that he be re-offered the plea agreement as a
remedy. We assume the parties’ familiarity with the
underlying facts, the procedural history, and the issues
presented for review.

     Martinez alleges that he proceeded to trial under the
misconception that he could not be convicted of burglary if
the jury found that he had never entered the burglarized
apartment, but had only assisted a person named Martin in
transporting stolen goods therefrom. He maintains that
Trial Counsel knew of this misapprehension but failed to


    1
       We review a district court’s denial of a petition
for a writ of habeas corpus de novo. Dolphy v. Montello,
552 F.3d 236, 238 (2d Cir. 2009). We afford greater
deference to the underlying state court opinions, as
discussed infra.
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inform Martinez that he could be convicted as an accomplice
based solely on his assistance to Martin, without his having
made any such entrance. This failure, Martinez contends,
led him to reject the offered plea agreement. Martinez
argues that Trial Counsel’s representation was consequently
ineffective.

     After holding an evidentiary hearing, the New York
Supreme Court rejected Martinez’s account of Trial Counsel’s
assistance. It explicitly declined to credit Martinez’s
testimony that he had never known he could be convicted of
burglary without having entered the apartment, and also
“decline[d] to credit [Martinez’s] testimony that [Trial
Counsel] never explained the law to him.” App’x at 294.
Rather, the Supreme Court found that Trial Counsel
“adequately counseled [Martinez] as to the law, the plea,
and the risks of not accepting the plea.” Id. at 295-96.
The Appellate Division affirmed.

     The state court’s factual findings are presumed correct
unless rebutted by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1); Morris v. Reynolds, 264 F.3d 38, 45 n.6 (2d
Cir. 2001).

     In an attempt to provide such evidence, Martinez
principally relies on Trial Counsel’s testimony. Martinez
asserts that the following colloquy demonstrates that Trial
Counsel was aware of Martinez’s misapprehension of the law
and Trial Counsel’s failure to correct his misunderstanding:

    Q: Can I--during this time prior to getting a plea
    offer from the People was it your understanding
    from Mr. Martinez that he thought he couldn’t get
    convicted of burglary if he hadn’t been inside the
    dwelling?

    [Trial Counsel]: Yes, that’s absolutely what he
    thought.

    Q: And did he actually tell you that’s what he
    thought?

    [Trial Counsel]: Yes, he kept saying to me I was
    never in the apartment. I made a mistake. I
    foolishly helped this guy. I helped carry the
    safe. You had the safe that was taken from the


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    apartment in his apartment.     That’s where they
    found it.

    Q: And did he tell you again prior to the trial
    that he understood he can’t get convicted of
    burglary if he was never physically inside the
    apartment?

    [Trial Counsel]: No, he didn’t tell me he couldn’t
    get convicted of burglary. He said, he told me
    consistently I was never inside the apartment.
    That’s what he told me.

    Q: And he felt that mattered?

    [Trial Counsel]: Oh yeah, he thought that
    matter[ed], right.

App’x at 136-37.

    Q: Do you recall you testified earlier that there
    were times where you understood from Mr. Martinez
    that it was his understanding that he couldn’t be
    convicted of burglary unless he was physically in
    the victim’s apartment; do you recall that
    testimony?

    [Trial Counsel]: I recall the testimony, and it
    was his feeling that I was never in any apartment,
    I’m not guilty of a burglary.

    Q: In fact he had that understanding all up
    through his sentencing in the case, right?

    [Trial Counsel]: I don’t know what his
    understanding was but that’s his words. He felt
    he wasn’t guilty of burglary because he was never
    in the apartment and, okay that’s a reasonable
    layman’s assumption.

Id. at 167-68.

     The quoted testimony could possibly indicate that Trial
Counsel understood Martinez to be operating under a
misapprehension, but it does not indicate whether Trial
Counsel corrected it, and (if so) whether Martinez ignored
Trial Counsel’s advice. In the context of Trial Counsel’s

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total testimony, however, there is reason to doubt
Martinez’s narrative of ineffective assistance.

     When Trial Counsel was asked whether he had tried to
correct Martinez’s “layman’s view,” Trial Counsel responded:
“I’m sure I discussed with him the fact that [if] he aided
or abetted someone to go into the apartment that he could be
liable for their actions.” Id. at 169. And earlier, Trial
Counsel had indicated that he had explained Martinez’s
potential liability on an aiding and abetting theory in
response to Martinez’s suggestion that he was innocent of
burglary because he had never entered the apartment. Id. at
132.

     An earlier incident casts further doubt on Martinez’s
contentions. After Martinez was arrested, Legal Aid
attorney Katherine Burton was assigned to provide initial
representation. Martinez proposed to Burton that he testify
to the grand jury that he never entered the apartment,
hoping to stave off indictment. Burton advised that
Martinez could be convicted under an aiding and abetting
theory, and urged Martinez to refrain from testifying. As
the state court found, “[Martinez], nevertheless, was
adamant because, in his own mind, he was innocent since he
never entered the apartment.” Id. at 295. Martinez
testified and was indicted.

     This episode demonstrates that Martinez was willing to
ignore a lawyer’s explanation of accomplice liability and to
override a lawyer’s legal strategy in favor of his own
approach. It is therefore difficult to credit Martinez’s
assertion that the only reason he refused the plea bargain
was that Trial Counsel failed to inform him about accomplice
liability.

     Martinez also relies on his own testimony; however, the
state court discredited all of his relevant testimony,
finding that Martinez had previously lied under oath, made
inconsistent statements, given different names and dates of
birth when questioned by law enforcement, and had “the
principal interest in the outcome of [his] motion.” App’x
at 293. We are not at liberty to disturb the state court’s
credibility finding.

     In light of the foregoing, Martinez has failed to
present clear and convincing evidence to rebut the state
court’s rejection of his factual claim that Trial Counsel

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knew that Martinez held an incorrect view of his potential
liability and failed to correct that misapprehension.
Because Martinez can succeed on his ineffective assistance
claim only if we determine that he has convincingly rebutted
the state court’s findings, his petition must be denied.

     For the foregoing reasons, and finding no merit in
Martinez’s other arguments, we hereby AFFIRM the judgment of
the district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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