Bellamy, 974 F.2d at 307 (quoting Solina, 709 F.2d at 164), or own wrongdoing. The Bellamy court went on to state that, regardless of the facts presented, "application of the per se rule must be justified under one or both of these rationales." Id.
Although petitioner is correct in stating that his retained appellate counsel was under criminal investigation by the U.S. Attorney's Office for the Southern District of New York and that he eventually entered into a cooperation agreement with that office while he handled Foy's appeal, he fails to provide any evidence to suggest that Maloney's representation of him created "an actual conflict of interest [that] adversely affected his lawyer's performance," Cuyler v. Sullivan, 446 U.S. 335, 350, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980), and that would hence give rise to the per se rule.
Maloney's case was handled by a different U.S. Attorney's Office, and the crime for which he was prosecuted concerned false statements in mortgage applications, having nothing whatsoever to do with the narcotics, firearms dealing, and assault crimes for which Foy was on trial. Similar facts were stated in the case of United States v. Aiello, 900 F.2d 528 (2d Cir. 1990), the Court of Appeals upheld the denial, without a hearing, of a claim that defense counsel had a conflict of interest where counsel knew himself to be the target of an unrelated tax investigation that ultimately led to a plea by the lawyer to tax violations. The court noted that, because the lawyer's "purported crimes were totally unrelated to the narcotics and tax crimes for which [the defendant] was being tried," a vigorous defense of the defendant "would not have risked revealing anything about the completely unrelated wrongdoing for which [the lawyer] was under investigation." Id. at 531.
Although petitioner is unable to plead a case of actual conflict of interest, his claim may still be analyzed under the traditional test of ineffective assistance of counsel set out in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), and discussed supra. As stated above, Strickland requires that the defendant establish both that counsel's performance caused the representation afforded to fall below an objective standard of reasonableness and that, but for counsel's errors, there is a reasonable probability that the outcome of the trial would have been different. Petitioner provides no facts whatsoever to show that his appellate counsel's performance was deficient.
Accordingly, petitioner's motion for habeas corpus on the grounds of ineffective assistance of appellate counsel is denied.
Petitioner's remaining claims, such as the alleged "gross violations" of his First, Second, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, and Fourteenth Amendment Rights are either frivolous or set out in such broad conclusory fashion that it is unnecessary to spend further time in their discussion.
For the foregoing reasons, the petition for a writ of habeas corpus is denied.
The Clerk is directed to mail a copy of the within to all parties.
Dated: Brooklyn, New York
November 2, 1993
Charles P. Sifton
United States District Judge