The opinion of the court was delivered by: LESLIE G. FOSCHIO
REPORT and RECOMMENDATION
Petitioner, Rafael E. Bello, initiated this action requesting habeas corpus relief under 28 U.S.C. § 2254 on February 16, 1993. The matter was referred to the undersigned by the Hon. Richard J. Arcara, on June 8, 1993, for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
Bello was indicted by an Erie County Grand Jury, on May 18, 1990, in a seven-count indictment charging possession and sale of controlled substances. Specifically, Bello was charged with a co-defendant, Edelmira Lugo, with criminal possession of a controlled substance in the fourth degree (cocaine), criminal possession of marijuana in the fourth degree, criminal possession of a controlled substance in the seventh degree (diazepam), and criminally using drug paraphernalia in the second degree. Bello alone was charged with criminal possession of a controlled substance in the first degree (cocaine), criminal possession of a controlled substance in the third degree (cocaine), and criminal sale of a controlled substance in the third degree (cocaine). Bello was arraigned before New York State Supreme Court Justice Frederick M. Marshall on June 1, 1990, pleading not guilty to all counts. Bello was represented by retained counsel, Thomas Eoannou, of counsel to Nicholas Costantino.
Prior to trial, on September 25, 1990, Bello appeared before Erie County Court Judge Timothy J. Drury, with counsel Nicholas Costantino, and pled guilty to criminal possession of a controlled substance in the second degree, under count five of the indictment, as a lesser included offense. Thereafter, on November 16, 1990, Bello was sentenced by Judge Drury to a minimum of five years and a maximum of life imprisonment.
Bello, then represented by the Legal Aid Bureau of Buffalo, appealed his conviction to the Appellate Division, New York State Supreme Court, Fourth Department. He initially raised two grounds for reversal: (1) that he did not waive his right to appeal when he entered a guilty plea, and (2) that his sentence should be modified by the court in the interest of justice.
Bello also submitted a pro se supplemental brief arguing that he was denied effective assistance of counsel. The Appellate Division unanimously affirmed the conviction on November 18, 1992. People v. Bello, 187 A.D.2d 1035, 593 N.Y.S.2d 480 (App. Div. 4th Dep't. 1992). Leave to appeal to the New York State Court of Appeals was denied on February 2, 1993. People v. Bello, 81 N.Y.2d 837, 611 N.E.2d 775, 595 N.Y.S.2d 736 (N.Y. 1993).
While his direct appeal was pending, Bello brought a motion, pursuant to New York Criminal Procedure Law § 440.20 to set aside his sentence on the ground that it was excessive. The motion was denied by Judge Drury on February 10, 1992. Bello did not appeal the denial.
On February 16, 1993, Bello filed, pursuant to 28 U.S.C. § 2254, a petition for a writ of habeas corpus in this court alleging four grounds for relief, including ineffective assistance of counsel, violation of his right to due process based on the fact that he did not voluntarily, knowingly, and intelligently waive his right to appeal his conviction, violation of his right to due process based on the fact that his guilty plea was not knowing, intelligent, or voluntary because of ineffective assistance of counsel, and misconduct of a police officer by interrogating a codefendant without knowledge or consent of counsel compromising the effective assistance of counsel because of a resulting conflict of interest.
On December 14, 1993, Respondent filed a motion for summary judgment on the ground that there was no genuine issue of material fact present, and that the Respondent was entitled to judgment as a matter of law.
Petitioner responded to the motion for summary judgment on December 30, 1993, arguing that it was clear that he had been denied his rights under the Sixth and Fourteenth Amendments to the United States Constitution by having counsel who had a conflict of interest.
Based on a review of the papers submitted in this matter, along with the state court record, the petition should be DISMISSED. Accordingly, the court finds that Respondent's motion for summary judgment is moot.
Bello was indicted, with another co-defendant, Edelmira Lugo, his fiancee, on May 18, 1990, with possession of cocaine, marijuana, and diazepam, with the use of drug paraphernalia, and with the sale of cocaine. Bello retained counsel, and Thomas Eoannou, along with Nicholas Costantino, represented both Bello and Lugo.
During the plea colloquy, and prior to the entrance of the plea, the prosecutor, Glenn Pincus, asked the court to raise two issues in his discussion with Bello and Lugo. (P. 3). First, he requested that the court advise Bello and Lugo that, by entering a plea, they would be waiving their right to appeal the pleas. (P. 3). Second, Mr. Pincus asked that the court advise Bello and Lugo that, as they were both represented by the same attorney, there was a potential conflict of interest. (P. 3-4). Mr. Pincus further requested that their understanding of this potential conflict and their right to separate counsel be placed on the record. (P. 3). Judge Drury then related to Bello and Lugo the potential conflict of interest by their both being represented by the same counsel. He stated that he could not "turn a blind eye to the fact that Mr. Eoannou has also conferred with you, as well as Mr. Costantino," and that Mr. Eoannou had also represented one Laima Trincus who would have been one of the main witnesses against both Bello and Lugo had the case gone to trial. (P. 4-5). Judge Drury emphasized that by Mr. Eoannou assisting Mr. Costantino in his representation of Bello and Lugo, while at the same time representing the individual who would be the chief witness against Bello and Lugo, a conflict of interest existed. (P. 5). Judge Drury then went on to state that Bello and Lugo could waive the conflict, but that he was advising them that this conflict existed, and that they were entitled to separate attorneys. (P. 5-6).
Mr. Eoannou clarified the conflict for the court. According to Mr. Eoannou, initially he and Mr. Costantino represented Bello, Lugo, and Laima Trincus in a joint defense effort against a search warrant at issue in the case. (P. 6). During the pendency of this effort, police officer Roger Masters, unbeknownst to either Mr. Eoannou or Mr. Costantino, allegedly approached Laima Trincus to privately negotiate a "deal for a dismissal," (P. 6), which Eoannou learned of after the fact. (P. 6). Apparently, Laima Trincus discussed this offer with both Bello and Lugo, and the three defendants requested that Mr. Eoannou continue his representation and advice relative to a challenge as to the search warrant at issue. (P. 7). Mr. Eoannou further stated that there was never any time he believed that Laima Trincus was going to be testifying against Bello and Lugo, and that he was never ...