movement as would be the case if Guran had to travel from Florida
to New York on a regular basis. Of course, this concern might
have been minimized had it been brought more clearly to the
attention of the Appellate Division, which could have scheduled
its disciplinary hearings on sequential days. Counsel is to be
faulted for not raising this possibility, rather than giving the
impression of complete incapacitation. To this extent his
submission to the Appellate Division may have been exaggerated
and misleading. That, however, is not the issue before this
court, and is hardly a basis for finding a per se violation of
the sixth amendment in his representation of petitioner. The fact
remains that, after extensive questioning of Guran's treating
physician, no evidence was adduced of any mental infirmity. The
trial court was entitled to conclude from the hearing evidence,
as well as from its own observations of Guran throughout trial,
that he was perfectly competent to conduct the defense.
No reviewing court, whether state or federal, enjoys the same
first-hand insight as the trial court into counsel's actual
performance. A careful review of the entire trial transcript,
however, persuades this court that the finding of competency was
fully supported by the record. Guran did not limit his defense to
any formulistic challenge to the sufficiency of the government's
case. He carefully and often shrewdly cross-examined many of the
prosecution witnesses. He called numerous witnesses, including
the defendant, who was obviously well prepared for his testimony.
He gave a summation that was thoughtful, articulate and at times
persuasive in its contention that the last person major drug
dealers would use to set up a law enforcement officer was a known
informant such as Bellamy.
Where a defendant has been represented by duly licensed
counsel, where disciplinary proceedings against that counsel have
not yet resulted in any adverse ruling, where a hearing on
counsel's mental and physical condition at the time of trial
amply supports a finding of his mental competence to present a
defense, and where the trial record reveals that a defense was
advanced cogently and vigorously, this court finds no basis for
concluding that petitioner has sustained a per se violation of
his sixth amendment right to counsel.
The petition for habeas corpus relief on this ground is denied.
B. The "Strickland v. Washington" Standard
Petitioner contends that even if this court were not to find a
per se violation, his counsel's representation fell below the
standards set forth in Strickland v. Washington, supra. In
fact, petitioner's burden of establishing both that his counsel's
representation fell below prevailing professional norms and that,
but for the errors, a different outcome was likely, is a heavy
one. A "strong presumption" operates that counsel's conduct falls
within "the wide range of reasonable professional assistance."
Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065.
In this case, petitioner contends that a factual hearing at which
his trial counsel is required to testify is necessary to
establish ineffective representation. This court disagrees. The
record, whether reviewed in its entirety, see Kimmelman v.
Morrison, 477 U.S. 365, 386, 106 S.Ct. 2574, 2588, 91 L.Ed.2d
305 (1986) (generally appropriate to consider counsel's overall
performance in assessing an alleged omission), or in light of
petitioner's discrete complaints, fails to demonstrate any
deficiency sufficient to satisfy Strickland.
1. Suppression of Petitioner's Statements to the Authorities
Petitioner complains that his trial counsel, in moving to
suppress his statements to the authorities should not have argued
simply that the statements were involuntary, but should have
cited the court to People v. Bartolomeo, 53 N.Y.2d 225,
440 N.Y.S.2d 894, 423 N.E.2d 371 (1981), a case holding that when
police are aware that a suspect in custody is represented by
counsel, albeit on an unrelated charge, they are absolutely
precluded by the New York
Constitution from interrogating that individual in the absence of
In this case it is clear that invocation of Bartolomeo would
have made no difference to the outcome of the suppression motion.
Bartolomeo applies only to custodial interrogations. See
People v. Bartolomeo, 53 N.Y.2d at 231, 440 N.Y.S.2d at 897, 423
N.E.2d at 374; cf. People v. Bertolo, 65 N.Y.2d 111, 116,
490 N.Y.S.2d 475, 479, 480 N.E.2d 61, 65 (1985) (no Bartolomeo
violation in non-custodial questioning of represented
individual). The trial court, however, specifically found that
petitioner was not in custody at the time he made the statements
at issue. Rather, he voluntarily accompanied the police to the
station and spoke with them despite the fact that he was free to
leave. This finding was expressly affirmed by the Appellate
Division on direct appeal. Such a finding of fact is entitled to
a "high measure" of deference by a federal court reviewing the
issue on a petition for habeas corpus. See 28 U.S.C. § 2254(d)
(1988); Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct.
843, 849, 74 L.Ed.2d 646 (1983). This court's own review of the
hearing transcript reveals that the finding is fairly supported
by the record, particularly in light of petitioner's background
as a police informant.
In this light, it can neither be said that counsel's failure to
cite Bartolomeo was professionally unreasonable, nor that, but
for the failure, the petitioner's statements would likely have
2. Suppression of Petitioner's Statement to Robinson
Bellamy further claims that his trial counsel's failure to move
to suppress his statement to Larry Robinson before trial
constituted ineffective assistance in light of Maine v.
Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985). As
the record demonstrates, counsel did invoke Maine v. Moulton
after Robinson testified to support a motion to strike his
testimony or, in the alternative, grant a mistrial. Thus, the
issue before the court is not whether the failure to make the
motion altogether constituted ineffective assistance, but whether
the failure to raise it sooner denied petitioner rights secured
by the sixth amendment. This court finds that the motion was
unlikely to succeed at any time and therefore that its tardy
presentation did not constitute a sixth amendment denial.
In Maine v. Moulton, supra, the Supreme Court held that the
procurement of a defendant's post-indictment statement by the
active use of a government informant must be suppressed as
violative of the sixth amendment. In this case, Robinson's own
trial testimony revealed that he was not an informant at the time
he spoke to Bellamy. Only after their meeting did he have his
lawyer approach the prosecutors in an effort to exchange his
information for better treatment on his own case. This scenario
would not demonstrate "knowing exploitation by the State of an
opportunity to confront the accused" in the absence of his
counsel. See Maine v. Moulton, 474 U.S. at 176, 106 S.Ct. at
487; accord United States v. Cruz, 785 F.2d 399, 408 (2d Cir.
1986) (no sixth amendment violation where proof demonstrates that
government did not put informant on same floor as indicted
defendant for purpose of eliciting information from him).
There being no basis to conclude that a motion to suppress
Robinson's statements would have been any more likely to succeed
pretrial than when raised in the midst of trial, the court finds
no sixth amendment denial.
C. Due Process Denials
Bellamy contends that due process imposed upon the trial court
an independent duty to inquire into counsel's competency and,
indeed, to order either his withdrawal from the case or the
appointment of additional counsel. In support of this argument he
cites various cases discussing a
trial court's obligation to ensure representation consistent with
the sixth amendment when it is made aware of a possible conflict
of interest. E.g., Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct.
1173, 55 L.Ed.2d 426 (1978). Although this court agrees that
further inquiry prior to trial would have been appropriate in
this case,*fn10 it does not conclude, in light of the findings
made at the 440 hearing, that due process was here denied.
Preliminarily, the court notes that the trial court was plainly
aware, by virtue of an ex parte communication from Sidney Guran
himself that counsel's medical condition was the basis for a
pending motion to suspend him from the practice of law. Cf.
Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333
(1980) (court not required to inquire into conflicts of which it
is unaware). Under such circumstances, the court should have
taken steps to ensure both (1) that defendant was aware of the
situation; and (2) that counsel was sufficiently well to render
the sort of representation contemplated by the sixth amendment.
The failure to make such inquiry does not, however, by itself,
warrant granting habeas corpus relief. See generally United
States v. Edwardo-Franco, 885 F.2d 1002, 1007 (2d Cir. 1989)
(failure of court to make proper inquiry of defendants in case of
dual representation does not automatically entitle them to new
trial; burden shifts to government to show no prejudice). Indeed,
in Wood v. Georgia, 450 U.S. 261, 274, 101 S.Ct. 1097, 1104, 67
L.Ed.2d 220 (1981), the Supreme Court held that, when a court
fails to hold a hearing on the question of conflict, the
appropriate relief is a remand to determine whether an actual
conflict was indeed present. Accord Bonin v. California,
494 U.S. 1039, 1043, 110 S.Ct. 1506, 1508, 108 L.Ed.2d 641 (1990)
(Marshall, J.) (dissenting from denial of certiorari) (trial
court's failure to conduct necessary inquiry warrants remand for
determination as to whether actual conflict exists).
In this case, no remand is necessary since the state court did
ultimately hold a hearing on counsel's competency in conjunction
with petitioner's 440 application. Detailed testimony at that
hearing from Guran's treating physician, coupled with the trial
court's own observations of counsel's performance during trial,
established that no physical or mental infirmity prevented Guran
from providing petitioner with a thoughtful and vigorous defense.
As already noted, this conclusion is amply supported by both the
trial and hearing records.
Petitioner complains that this hearing record cannot be relied
on because the state court refused to order Guran himself to
testify. Indeed, petitioner argues that this refusal itself
constituted a denial of due process warranting issuance of a writ
of habeas corpus.
A serious question exists as to the propriety of entertaining
on federal habeas such a challenge to state court collateral
review of a conviction. The majority of circuits that have
considered the issue have held that such claims are not
cognizable pursuant to § 2254. See, e.g., Conner v. Director of
Div. of Adult Corrections, 870 F.2d 1384, 1386-87 (8th Cir.),
cert. denied, 493 U.S. 953, 110 S.Ct. 363, 107 L.Ed.2d 350
(1989); Bryant v. State of Maryland, 848 F.2d 492, 493 (4th
Cir. 1988); Kirby v. Dutton, 794 F.2d 245, 247-48 (6th Cir
1986); Vail v. Procunier, 747 F.2d 277 (5th Cir. 1984) (per
curiam). Only the First Circuit has held to the contrary. See
Dickerson v. Walsh, 750 F.2d 150, 152-54 (1st Cir. 1984).
The Second Circuit has yet to address the issue.
Even if it were appropriate to address the issue on the merits,
this court would not find the state court's failure to require
the testimony of Guran at the 440 hearing sufficient to
constitute a denial of due process. The state court had already
observed him throughout a lengthy and complex trial. That
observation lent no support to the claim that counsel was too ill
or distracted to render competent representation. At the hearing,
the court heard from Guran's treating physician. That testimony
served to ensure that the lay observations made in the course of
trial were not contradicted by medical findings. Petitioner fails
to set forth with any particularity what further evidence would
have been adduced had Guran testified that would have undermined
the factual findings of competency.
Trial counsel's competency having been established at an
evidentiary hearing, and that finding being amply supported by
the evidence, petitioner's due process challenge to his
conviction is dismissed as without merit.
Bellamy's claim that his conviction was obtained in violation
of his rights to effective representation of counsel and due
process is without merit. Accordingly, his petition for habeas
corpus relief is denied. The court does, however, grant a
certificate of probable cause to appeal.