did not raise the sentencing issue set forth in the 440 motion as a claim in his habeas corpus Petition. Respondent's other argument is that at no time prior to sentence did the Petitioner seek to have the trial court set aside his guilty plea premised upon any of the grounds raised in the petition. However, as stated, Petitioner, in his direct appeal, both by his counsel's brief, and in his supplemental pro se submission, raised the same grounds as are in his petition, and, therefore, the claims are exhausted for habeas corpus purposes.
In this case, Bello has raised four grounds in his petition, of which two assert that his guilty plea was not voluntarily, knowingly, and intelligently made because of ineffective assistance of counsel, and the other two of which contend that he was denied ineffective assistance of counsel by virtue of counsel's conflict of interest in representing Bello and a prosecution witness. The court notes that, while these two grounds stem from the allegation that a co-defendant "was tampered with by a detective, resulting in the co-defendant becoming a prosecution witness, creating divided loyalties of representation by retained counsel," who also represented the co-defendant, see Ground One of the Petition, at p. 5, Bello's fourth ground relating to this same allegation states that the co-defendant was interrogated by the detective "without the knowledge and consent of said counsel." See Ground Four of the Petition, at p. 6. Respondent argues that Bello waived all claims by entering his guilty plea.
A criminal defendant may waive his right to appeal as a condition of a plea bargain. United States v. Rutan, 956 F.2d 827, 829 (8th Cir. 1992); Magee v. Romano, 799 F. Supp. 296, 299 (E.D.N.Y. 1992). However, while the waiver prevents a criminal defendant from taking a direct appeal on most grounds, it does not preclude challenging the voluntariness of his plea, as such a claim may not be waived. Magee, supra, at 299. Further, a significant factor in determining the voluntariness of a plea is whether the plea was based on the advice of competent counsel. Willbright v. Smith, 745 F.2d 779, 781 (2d Cir. 1984).
The test for determining the validity of a guilty plea is "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31, 27 L. Ed. 2d 162, 91 S. Ct. 160 (1970). To determine the voluntariness of a plea, the court should consider all of the relevant circumstances, including the possibility of a heavier sentence following a guilty verdict after trial, the defendant's previous contact with the criminal justice system, and whether the court addressed the defendant and explained his options. Magee, supra, at 300.
In this case, the court, both during the plea colloquy and at sentencing, explained to Bello his options. The court specifically asked Bello if he was entering the plea so that he could avoid trial and eliminate the possibility of being convicted on a higher degree of crime, if he realized that a plea of guilty was a conviction just as if he had been convicted by a jury, if Bello understood that he was waiving his right to a trial by jury, and if he understood the sentence that he could receive. Bello stated to the judge that he fully understood the consequences of taking the plea. (P. 15-16). Further, no issue was ever raised of Bello as to his competence in taking the plea. As such, the only remaining issue is whether Bello's counsel's advice was so ineffective as to render Bello's plea involuntary.
Where a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice "was within the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. 759, 771, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (1970). A defendant who pleads guilty upon the advice of counsel "may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann." Hill v. Lockhart, 474 U.S. 52, 56-57, 88 L. Ed. 2d 203, 106 S. Ct. 366 (1985) (citing Tollett v. Henderson, 411 U.S. 258, 267, 36 L. Ed. 2d 235, 93 S. Ct. 1602 (1973)).
The Court in Hill v. Lockhart, supra, held that the standard developed in Strickland v. Washington for evaluating claims of ineffective assistance of counsel was applicable to ineffective assistance of counsel claims arising out of the plea process. The standard for evaluating claims of ineffectiveness of counsel, as set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), is whether the attorney provided "reasonably effective assistance" when considering the totality of the circumstances. Strickland developed a two part test to assess the adequacy of counsel's representation under this standard. First, a defendant is required to establish that counsel's performance was deficient, and second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. In order to show a deficient performance by counsel, a defendant must demonstrate that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland, supra, at 687. In relation to the plea process, the second prong of the test "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill, supra, at 59. In order to satisfy this requirement, a defendant must show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, supra, at 59.
In this case, Bello claims that the errors made by counsel were that a waiver of his right to appeal was appended to his guilty plea by the ill advice of his counsel, and that, second, counsel advised him that he should plead guilty or face a significantly greater penal sanction while, at the time of this advice, counsel was simultaneously representing a co-defendant who had become a prosecution witness.
As to the first issue, there is no evidence that Bello's counsel insisted that a waiver of his right to appeal become a part of Bello's guilty plea, rather, according to the record, this was simply part of the plea offered to Bello, which Bello fully understood, and agreed to accept at the time of the entrance of his guilty plea. As a criminal defendant may waive his right to appeal as a condition of a plea bargain, see Magee, supra, the fact that Bello did so does not set forth a constitutional violation. As noted, there is no evidence in the record that such a decision was based on advice of his counsel.
Nor does the court find merit as to Bello's claim that he did not voluntarily plead guilty because his advice from counsel was given while counsel was allegedly representing a prosecution witness. In order to establish a claim of ineffective assistance of counsel based on a conflict of interest, a petitioner who entered a guilty plea must establish, (1) that there was an actual conflict of interest, and (2) that the conflict adversely affected the voluntary nature of the guilty plea entered by the defendant. Thomas v. Foltz, 818 F.2d 476, 480 (6th Cir.), cert. denied, 484 U.S. 870, 98 L. Ed. 2d 149, 108 S. Ct. 198 (1987). In this case, during the plea colloquy, Mr. Eoannou represented to the court that he and Mr. Costantino had originally represented Bello, Lugo, and their co-defendant Laima Trincus in the matter. While preparing a suppression motion relative to the search warrant used in the case, according to Mr. Eoannou, Laima Trincus was approached by Officer Masters, without the knowledge or consent of counsel, to privately negotiate a dismissal. Mr. Eoannou learned of the meeting after the fact. After the meeting with Officer Masters, Laima Trincus spoke to both Bello and Lugo, and Bello and Lugo then asked Mr. Eoannou to continue in his representation of them and to give them advice relative to a plea.
There is no evidence that, once Laima Trincus negotiated a deal with the prosecution, Mr. Eoannou continued in his representation of Laima Trincus. Rather, according to Mr. Eoannou, "there was never a time when I [Mr. Eoannou] advised my client or was aware that she [Laima Trincus] would be testifying against these two [Bello and Lugo]." (P. 7). As such, the court does not find that an actual conflict of interest existed at the time of the plea, and, accordingly, the court does not find that there was ineffective assistance of counsel in relation to the guilty plea entered by Bello. Further, even if there was an actual conflict of interest, the court does not conclude that the conflict adversely affected the voluntary nature of the guilty plea entered by Bello, as full disclosure was made in court, prior to entry of Bello's plea, of the relationship between Mr. Eoannou, Laima Trincus, and Bello. The trial court also expressly asked Bello if he understood the potential conflict, and Bello indicated that he did. Finally, the court informed Bello that if he entered a guilty plea he would be waiving any claim as related to Officer Masters' approach of Laima Trincus. Bello stated that he fully understood the conflict, and that he was prepared to plead guilty. As such, there is nothing in the record that could support a finding that the alleged conflict adversely affected the voluntary nature of the plea. See Jackson v. Burt, 877 F. Supp. 389, 1995 WL 100343 at *4 (E.D. Mich. 1995) (in order to prevail on conflict of interest claim in habeas corpus petition, "petitioner must show inconsistent interests between the codefendants, and that the attorney made a choice between alternative courses of action the result being helpful to one client and harmful to the other").
Moreover, there is no claim by Bello, Or indication in the record, that Eoannou in any way facilitated the deal for Trincus so as to constitute an undisclosed breach of loyalty to Bello. The potential conflict, if any, would therefore not have materialized until Bello had decided to reject the plea and proceed to trial. At that point, Eoannou's representation of either Trincus or Bello would arguably have had to end absent a further waiver from both defendants, assuming the trial court permitted such joint representation. This analysis clearly demonstrates that, at the time of Bello's plea, no disqualifying conflict had actually occurred. Assuming, arguendo, a disqualification barring Eoannou's further participation, this record supports Judge Drury's finding that Bello voluntarily and intelligently waived the potential disqualification. See Wheat v. United States, 486 U.S. 153, 100 L. Ed. 2d 140, 108 S. Ct. 1692 (1988).
Bello's remaining two grounds for relief also relate to his claim that he did not have effective assistance of counsel because of the alleged conflict of interest. As stated above, the court does not find that there was ineffective assistance of counsel in relation to the guilty plea entered by Bello based on an actual conflict of interest, or by such conflict adversely affecting the voluntariness of the plea. As such, these grounds also do not support valid claims for relief.
Based on the above discussion, Petitioner's habeas corpus petition should be DISMISSED. Further, Respondent's motion for summary judgment should be DISMISSED as moot.
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: April 20th, 1995
Buffalo, New York
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 30(a).
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the Petitioner and Respondent.
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: April 20th, 1995
Buffalo, New York