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February 16, 1979

Mariano SALOMON, Petitioner,
J. Edwin LaVALLEE, Superintendent, Clinton Correctional Facility, Respondent. UNITED STATES of America ex rel. Victor COLON, Petitioner, v. Walter FOGG, Superintendent, Green Haven Correctional Facility, Respondent

The opinion of the court was delivered by: GOETTEL

In these habeas corpus proceedings, Mariano Salomon and Victor Colon challenge their state court convictions for possession and sale of one pound of cocaine. They allege that a conflict of interest rendered their joint representation by one attorney a violation of the Sixth Amendment right to effective assistance of counsel. A brief review of the state trial and of the proceedings on these habeas corpus petitions is in order.


Salomon and Colon were convicted after a jury trial in June, 1974. The State's evidence was primarily the testimony of an undercover police officer, who had arranged the sale by repeated telephone conversations with Colon. Tapes of five such conversations were introduced into evidence. Ultimately, the officer met Colon at a store in the Bronx where they waited for Salomon, who then arrived with a bag of cocaine. Salomon handed over the bag, professed no involvement in the deal, and Colon and the officer left the store to complete the transaction elsewhere. Colon was arrested after payment had been made for the narcotics, and Salomon was arrested thereafter inside the store.

 At their trial, both petitioners were represented by one of their retained firm's attorneys. Neither petitioner presented any evidence, but by cross-examination and in summation, defense counsel argued that Colon had acted solely as an agent of the buyer-undercover officer. *fn1" Upon defense counsel's request, the court charged the jury on this proffered defense. Counsel's defense of Salomon consisted mainly of an "innocent bystander" approach, focusing on Salomon's disclaimers at the time of the transaction. As the Second Circuit stated on Salomon's previous appeal, "(t)he evidence against both defendants was strong, and the jury returned verdicts of guilty after deliberating for about three hours." Salomon v. LaVallee, 575 F.2d 1051, 1053 (2d Cir. 1978).

 After raising the conflict issue without success on his state appeal, *fn2" Salomon filed this habeas corpus petition in federal court in 1976. Judge Pollack denied the petition on July 20, 1976, finding that Salomon had failed to show prejudice from the joint representation. On March 22, 1977, the Second Circuit remanded for a "consideration of the question of waiver" I. e., whether Salomon had expressly consented to the joint representation and waived any conflict that may have existed. Judge Pollack, on remand, again concluded that there was no showing of real prejudice, and denied the petition without explicitly deciding the waiver question.

 On Salomon's second appeal to the Court of Appeals, the court, finding no explicit waiver on the record before it, remanded again for a consideration of whether the State could show lack of prejudice from the joint representation. Salomon v. LaVallee, 575 F.2d at 1055. The court noted that, in a series of federal criminal cases, it had held that, absent a waiver, the burden was on the United States to show lack of prejudice; but it declined to constitutionalize this rule and apply it to a state court conviction, at least until the record in the case had been supplemented. Id.

 Colon's unsuccessful state appeal *fn3" did not explicitly raise the conflict issue, although he did claim constitutional error resulting from the joint trial. While the first appeal in Salomon's habeas corpus action was pending, Colon filed his Pro se petition in this Court in September, 1976. The petition asserted basically that Colon had been prejudiced by the joint trial. The State was directed to answer the petition. *fn4" Counsel for petitioner was thereafter assigned. On August 5, 1977, an amended petition on behalf of Colon was filed, with the State's consent, expressly asserting that the joint representation denied him effective assistance of counsel at trial.

 By the time Colon filed his amended petition Salomon's second appeal to the Second Circuit was pending. Consequently, this Court held decision on Colon's petition in abeyance. When Salomon's case was remanded again, the two cases were joined for an evidentiary hearing in this Court.

 Despite the Second Circuit's limited remand order in Salomon, at this hearing the State produced more evidence attempting to show a waiver by the petitioners of any prejudice that might arise from their joint representation. For the first time in these notoriously extended proceedings, the State produced the minutes of the state pretrial proceedings (said previously not to exist), during which various colloquies took place between counsel and the state trial court. In one instance, the minutes show a general reference to the problem presented by joint representation. At the time of the reference, the trial judge was being asked for an adjournment of the trial date, and she was informed by counsel that a plea was likely, and that no conflict in the interests of the petitioners had been evident during the plea bargaining. The judge responded that counsel must investigate the potential for a conflict should the case go to trial, and that if one became apparent, the lawyers should inform her, and separate counsel would be appointed. Counsel were directed to report their findings in this regard by the date then set for trial. No further reference to the joint representation issue appears in the record of the trial.

 In addition, the State has submitted in this proceeding the affidavit of the state trial judge, (now a United States District Judge), which states that her normal practice was to explore with criminal defendants any potential for conflict and to assure herself that the defendants consented to joint representation. Understandably, she has no specific recollection that she did so in this case. The assistant district attorney who tried the case also testified and stated that he was "pretty sure" that such a colloquy took place, although he could point to no specific point at which petitioners were questioned directly by the trial judge. An associate of defense counsel, who appeared for the defendants at the pretrial proceedings, testified that he discussed the conflict question with both clients on more than one occasion and that each had indicated his desire for joint representation. Both petitioners testified, however, that they were not so questioned, had trouble understanding English, and did not remember anyone pointing out to them that a conflict between their positions might arise at trial.

 The remainder of the State's evidence at the hearing was devoted to proving a difficult negative that petitioners suffered no prejudice resulting from their joint representation. The issue of prejudice, of course, is the core question in these cases, and will be considered after discussion of several preliminary issues.


 After the evidentiary hearing in this Court, the State, somewhat incredibly after over two years of reluctant litigation in the case, See note 4 Supra, moved to dismiss Colon's petition for failure to exhaust state remedies on his claim of ineffective assistance of counsel. As indicated earlier, Colon did not explicitly raise the issue on his state appeal, but did challenge on constitutional grounds his joint trial. In the usual case, the State's motion might present an interesting question regarding analysis of whether the state courts were given an adequate opportunity to pass on the conflict of interest issue. In this case, however, such an investigation by this Court is unwarranted. First, Salomon had explicitly raised the issue on his state appeal, and there is no reason to expect that the state courts would have altered their view of the case for Colon's benefit. See, e.g., Stubbs v. Smith, 533 F.2d 64, 68-69 (2d Cir. 1976); Layton v. Carson, 479 F.2d 1275, 1276 (5th Cir. 1973). Second the State's extensive delay in asserting the exhaustion ground would itself be sufficient to support a discretionary decision not to dismiss on that ground. United States ex rel. Graham v. Mancusi, 457 F.2d 463, 467-68 (2d Cir. 1972). Finally, the State's motion must be considered close to frivolous in light of its prior consent to Colon's amending his petition, over eighteen months ago, to assert expressly the claim of ineffective assistance of counsel. For all of these reasons, the State's motion to dismiss Colon's petition for failure to exhaust state remedies will be denied.

 A second preliminary issue this Court must consider is the evidentiary burden with which to measure petitioners' claims of prejudice. As to Salomon, the Second Circuit has apparently made a finding, although Judge Pollack explicitly did not rule on the question, that "there (was) no inquiry" at trial into the conflict issue, and hence no waiver by Salomon. Salomon v. LaVallee, 575 F.2d at 1055. This led the court to direct a shifting of the burden to the state, to show lack of prejudice. Id. See, e.g., Kaplan v. Bombard, 573 F.2d 708, 714 n.7 (2d Cir. 1978). With this "law of the case," it was conceivable that the State would produce evidence of waiver which would be effective against Colon, but not Salomon. Based on a more complete record, however this ...

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