the United States Probation Department in its preparation of the presentence report are vague and conclusory. At sentencing, the record clearly shows that the government took no position as to what Carpenter's sentence should be. The government opposed Carpenter's post-sentencing motion, pursuant to Fed. R. Crim. P. 35, but, by doing so, it did not breach the plea agreement -- i.e., the opposition urged that the sentence imposed be upheld and did not constitute the taking of a position as to what the sentence should be.
4. Voluntariness of the Guilty Plea
Carpenter's fourth claim alleges that his guilty plea was not voluntarily and intelligently made. Carpenter has not raised this issue on appeal and is therefore barred from raising it on collateral attack unless he shows "cause" and "actual prejudice." Carpenter has made no showing as to "cause." Even if "cause" for his failure to appeal could be established, Carpenter has not demonstrated that "actual prejudice."
A guilty plea is invalid, and subject to collateral habeas attack, where it is involuntary or where it does not represent an intelligent choice among alternative courses available to the defendant. North Carolina v. Alford, 400 U.S. 25, 31, 27 L. Ed. 2d 162, 91 S. Ct. 160 (1970). It is "constitutional error for a trial judge to accept a defendant's guilty plea 'without an affirmative showing that it was intelligent and voluntary.'" Oppel v. Meachum, 851 F.2d 34, 37 (2d Cir. 1988) (quoting Boykin v. Alabama, 395 U.S. 238, 242, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969)). However, where a guilty plea is entered by a defendant who is "fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, [it] must stand unless induced by threats . . . [or] misrepresentation." Brady v. United States, 397 U.S. 742, 755, 25 L. Ed. 2d 747, 90 S. Ct. 1463 (1970); see also United States ex rel. Hogan v. Bara, 578 F. Supp. 1075, 1079 (E.D.N.Y. 1984). "[A] defendant's mistaken subjective impressions gained from conferences with his legal counsel, in the absence of substantial objective proof showing that they were reasonably justified, do not provide sufficient grounds upon which to set aside his guilty plea." United States ex rel. Curtis v. Zelker, 466 F.2d 1092, 1098 (2d Cir. 1972), cert. denied, 410 U.S. 945, 35 L. Ed. 2d 612, 93 S. Ct. 1405 (1973).
Carpenter argues that he entered into the plea agreement, even though he did not understand the law as it applied to the facts of his case, because his attorney mistakenly advised and pressured him to do so. Carpenter has not identified what mistaken impression of the law he had much less come forward with "substantial objective proof" showing that the mistaken impression was reasonably justified. There being no indication in the record that Carpenter's plea was anything less than voluntary and intelligent, Carpenter was not prejudiced by his failure to raise this argument on appeal.
5. Ineffective Assistance of Counsel/Conflict of Interest
In his fifth claim, Carpenter alleges the following: that prior to trial his attorney applied for employment with the United States Attorney; that, because his attorney was anxious to undertake employment with the United States Attorney, he exerted pressure on Carpenter to enter a guilty plea prior to trial and during trial; that the prospect of employment "hindered [his attorney's] performance at trial" to the extent that Carpenter's representation was constitutionally ineffective; and that Carpenter's attorney did in fact undertake employment with the United States Attorney soon after Carpenter entered his guilty plea. This claim is not procedurally barred, even though it was not raised on appeal. See Ciak v. United States, 59 F.3d 296, 1995 U.S. App. LEXIS 13046, 1995 WL 368699, at *7-8 (2d. Cir. 1995).
The right to counsel under the Sixth Amendment entails "a correlative right to representation that is free from conflicts of interest." Wood v. Georgia, 450 U.S. 261, 271, 67 L. Ed. 2d 220, 101 S. Ct. 1097 (1981) (citing Cuyler v. Sullivan, 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980) and Holloway v. Arkansas, 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173 (1978)). Where a district court has been "sufficiently appraised of even the possibility of a conflict of interest . . . . [it] must investigate the facts and details of the attorney's interests to determine whether the attorney in fact suffers from an actual conflict, a potential conflict, or no genuine conflict at all." United States v. Levy, 25 F.3d 146, 153 (2d. Cir. 1994) (citations omitted). Where the district court finds that "the attorney suffers from a severe conflict -- such that no rational defendant would knowingly and intelligently desire the conflicted lawyer's representation -- the court is obligated to disqualify the attorney." Id. (citation omitted). Where the district court finds a conflict of lesser severity, the court must obtain from the defendant "a valid waiver of his right to a non-conflicted lawyer" before allowing the representation to continue. Id. (citation omitted). A valid waiver may be obtained by following the procedures set forth in United States v. Curcio, 680 F.2d 881, 888-890 (2d. Cir. 1982). Id.
The record in the instant case indicates that the Court was appraised prior to trial of the employment application made by Carpenter's counsel. At that time, the Court determined that there was a potential conflict of interest, but not one that was so severe as to require immediate disqualification. As such, on March 3, 1990, before the scheduled jury selection, the Court held a hearing to determine whether the representation could continue. The following colloquy took place:
CARPENTER'S ATTORNEY: I currently have an application pending for an appointment as an Assistant United States Attorney for the Eastern District. I have informed my client, Mr. Carpenter, of this, and asked him if he has any objections [to me] representing him at the trial. He indicates that he does not and [wants] to proceed with me as his counsel. Is that correct, Mr. Carpenter?