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FRISS v. UNITED STATES

July 28, 1993

ARLAND FRISS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: THOMAS J. MCAVOY

 Chief U.S. District Judge

 MEMORANDUM-DECISION and ORDER

 I. Procedural History

 Petitioner Arland Friss (hereinafter "Petitioner") was found guilty of conspiracy to possess with intent to distribute cocaine and "crack" (Count I) and conspiracy to possess cocaine and "crack" (count II), in violation of 21 U.S.C. § 846. In accordance with Section 5K2.0 of the United States Sentencing Guidelines, this court departed downward from the guideline imprisonment range of 51-63 months and sentenced Petitioner to concurrent terms of imprisonment of 24 months on count I and 12 months on Count II, and a three year term of supervised release.

 Petitioner filed a Notice of Appeal from his conviction, and Respondent United States (hereinafter "Respondent") filed a Notice of Appeal from this court's downward departure. Petitioner then filed a motion in the Second Circuit Court of Appeals for release pending resolution of these appeals, but this motion was denied. Accordingly, Petitioner commenced service of his sentence on August 28, 1991.

 Thereafter, Petitioner and Respondent entered into a stipulation dismissing both appeals. Petitioner now seeks to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255 by alleging that his Sixth Amendment rights have been violated. Specifically, he alleges that his counsel, Joseph F. Donnelly, was acting under a conflict of interest, and in the alternative, that his counsel was ineffective at trial.

 II. Discussion

 Petitioner failed to raise his Sixth Amendment claim on direct appeal. According to Campino v. United States, 968 F.2d 187 (2d Cir. 1992), where a defendant fails to raise a constitutional claim on direct appeal, the claim is barred from collateral review on a motion pursuant to 28 U.S.C. § 2255 unless the petitioner can demonstrate "cause" for the default of normal appellate procedure, and actual "prejudice" from the alleged violation upon which the claim is based. Under the "cause and prejudice" test, "'cause' . . . must be something external to the petitioner, something that cannot fairly be attributed to him . . .," Jorge v. U.S., 818 F. Supp. 55, 56 (S.D.N.Y. 1993), citing Coleman v. Thompson, U.S. , , 115 L. Ed. 2d 640, 111 S. Ct. 2546, 2566, (1991), (emphasis in original), and the "prejudice" must be so substantial that it undermines the integrity of the entire trial.'" 818 F. Supp. at 55, (citing) U.S. v. Frady, 456 U.S. 152, 169, 102 S. Ct. 1584, 1595, 71 L. Ed. 2d 816 (1982). This standard has been extended to claims alleging ineffective assistance of counsel in § 2255 proceedings. See Id. ; Castillo v. U.S., 1993 U.S. Dist. LEXIS 1905, No. 92 CIV. 3982, 1993 WL 51181, (S.D.N.Y. Feb. 23, 1993).

 (a) Actual Conflict of Interest

 Petitioner claims that he failed to raise the issue of an actual conflict of interest on direct appeal because he was unaware of the circumstances giving rise to the alleged conflict, and because he was represented by the same counsel at those proceedings who he now claims was ineffective. Respondent agrees that it would be unreasonable to expect an attorney to raise the issue of his own ineffectiveness, and therefore concedes that Petitioner has established sufficient cause for failure to raise that issue on direct appeal. Therefore, the issue of whether Petitioner has demonstrated "cause" for not raising the issue of his counsel's alleged conflict on appeal is not contested.

 The question of whether Petitioner has demonstrated "prejudice" is contested by Respondent and is therefore the controlling issue as to his first claim. With respect to an alleged conflict of interest, the Supreme Court has held that "prejudice" will be presumed if the petitioner demonstrates that counsel actively represented conflicting interests and that "an ACTUAL conflict of interest adversely affected his lawyer's performance. " Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 1718, 64 L. Ed. 2d 333 (1980) (emphasis added). Therefore, if Petitioner can demonstrate an actual conflict of interest, he will have satisfied his burden of showing prejudice.

 The basis for Petitioner's claim of actual conflict is as follows: Petitioner is a retired Hudson, New York police officer who at the time of retirement held the position of Detective Sergeant. In the course of his duties as an officer, Petitioner had occasion to investigate and arrest one Joseph Melino and members of Mr. Melino's family for various illegal acts. Petitioner arrested Melino's wife and was subsequently sued by the Melino family. According to Petitioner's memorandum, however, that suit was eventually dismissed. Petitioner was the arresting officer in a case against Melino's daughter and Petitioner was present when a fellow officer arrested Melino himself.

 Subsequent to these arrests, Melino retained a private investigation firm to determine why he was the target of what he believed to be police harassment, and what information had been learned about him and his family (Petitioner's memorandum; reports of private investigator attached as Exhibit A). Petitioner contends that this investigation firm was also hired to collect derogatory information concerning certain members of the Hudson Police Department, including the Petitioner. Although Respondent disputes this allegation (Respondent's memorandum at pg. 8), the reports of ...


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