The opinion of the court was delivered by: MOTLEY
MEMORANDUM OPINION AND ORDER
This is a petition for a writ of habeas corpus on the ground of ineffective assistance of counsel. Petitioner claims that there was a conflict of interest among the three co-defendants and that their joint representation by a single attorney violated his Sixth Amendment rights.
On August 24, 1977 this court issued an opinion setting forth the relevant facts. The court there found that petitioner failed to specifically allege the nature of the conflict, as required by this Circuit in United States v. Carrigan, 543 F.2d 1053, 1055 (2d Cir. 1976). In light of the fact that petitioner was then proceeding pro se, this court decided to dismiss the petition unless petitioner submitted a supplemental affidavit within thirty days "detailing the specific facts upon which he bases his allegation that he was prejudiced by joint representation." (1977 Opinion, p. 9)
After that decision, petitioner secured representation by the Legal Aid Society. Further briefs and affidavits were submitted by all parties. Petitioner's new submissions have changed the complexion of this habeas case, since they contain important new allegations in support of the petition. This raises the question whether petitioner has properly exhausted his state remedies under 28 U.S.C. § 2254(b). The court holds that petitioner's state remedies have not been exhausted and that this petition should be dismissed.
The Second Circuit has formulated the standard to be applied in a situation where new facts have been first presented to the federal court by a state habeas petitioner:
When a state prisoner presents a Materially different claim and stronger evidentiary case before the federal court in a habeas corpus petition, and a state forum is available to consider the additional factors and varied claim, the federal court should properly dismiss the petition before it.
United States ex rel. Figueroa v. McMann, 411 F.2d 915, 916 (2d Cir. 1969) (emphasis added). Petitioner has clearly presented a "stronger evidentiary" case in this court. The question is whether he has presented a "materially different claim." In consideration of that question, we now turn to the claims presented to the state and federal courts.
Petitioner moved in the state court to vacate his sentence under N.Y.C.P.L. § 440.10 approximately two years after his conviction. In his application to the state judge who had presided at his trial, petitioner claimed that his Sixth Amendment right to effective counsel was denied because of the three co-defendants' joint representation by a single attorney. Petitioner there alleged that he was unaware that he was entitled to separate counsel; that his counsel was inordinately concerned with the defense of petitioner's co-defendant, Nicola Rinaldi; that separate counsel would have pressed certain "inconsistencies" in the testimony of the prosecution witnesses to the advantage of petitioner. Petitioner recognized that he had to demonstrate that there was a conflict of interest and requested a hearing to explore the questions he had raised.
The trial judge dismissed this claim in a single paragraph of his opinion of May 1, 1974:
Defendant's first contention that he was never warned of the serious constitutional questions involved in having one attorney represent him and the other two co-defendants at the trial, has no basis in fact. This Court, on more than one occasion, both before and during the trial advised all the defendants that each was entitled to have separate counsel. Each defendant, including the herein defendant, indicated that he was satisfied with the attorney who was representing them jointly.
Petitioner then filed a petition for a writ of habeas corpus in this court. He presented the same issue here as in the state court: Were petitioner's Sixth Amendment rights violated when the trial court failed to advise him of a possible conflict of interest among the co-defendants and where the record clearly demonstrates the possibilities of this conflict of interest?
In its opinion of August 24, 1977 this court held that the trial judge was mistaken. The record did Not disclose any inquiry by the trial judge into the possible conflict of interest or a suggestion that the defendant might consider retaining alternate counsel. Despite this fact, this court also held that the petition would be dismissed because of petitioner's failure to allege any conflict with specificity; joint representation alone is not a constitutional deprivation of counsel. United States v. Carrigan, 543 F.2d 1053, 1055 (2d Cir. 1976). Since petitioner was proceeding pro se, this court gave him thirty days to present these specifics now that petitioner had the guidance of this court's opinion.
Petitioner then secured counsel. Subsequent papers filed by petitioner alleged for the first time that: First, petitioner, himself, had been held captive by his co-defendant Rinaldi Before committing the crime for which he has been convicted kidnapping. Petitioner alleges that he committed the acts for which he was convicted under duress, an affirmative defense to the charge of kidnapping. Second, counsel for the defendants conferred alone with Rinaldi on two occasions but never conferred separately with either petitioner or the third co-defendant. Third, petitioner wished to take the stand in his own defense but counsel refused to allow him to do so. Petitioner also points to ...