Appeal from order denying petition for writ of habeas corpus based on claimed denial of Sixth Amendment rights, Milton Pollack, J., United States District Court for the Southern District of New York.
Feinberg, Mansfield and Oakes, Circuit Judges. Mansfield, Circuit Judge (concurring in part and dissenting in part).
FEINBERG, Circuit Judge :
Mariano Salomon appeals from an order of the United States District Court for the Southern District of New York, Milton Pollack, J., denying his petition for a writ of habeas corpus. Salomon, along with co-defendant Victor Colon, was convicted in the state courts in June 1974 of possession and sale of approximately one pound of cocaine, for which he received concurrent sentences of 20 years to life.*fn1 Salomon claims that his Sixth Amendment right to counsel was infringed at his trial because his lawyer also represented Colon. Because the district judge applied an incorrect burden of proof in reaching his decision, we conclude that we must remand the case for further proceedings.
This appeal has had an extended procedural history. In April 1976, Salomon filed in the federal district court his pro se petition for a writ of habeas corpus, raising the Sixth Amendment claim now before us, along with other issues not now relevant. Judge Pollack denied the writ in July 1976 without an evidentiary hearing, finding that Salomon had failed to show any prejudice arising from the joint representation at the state trial. Salomon thereafter petitioned this court for a certificate of probable cause under 28 U.S.C. § 2253, for leave to proceed in forma pauperis on that appeal, and for assignment of counsel. In March 1977, a panel of this court vacated the judgment of the district court and "remanded for consideration of the question of waiver."
Upon remand, the judge appointed counsel for appellant and held an evidentiary hearing, at which three witnesses testified: Salomon, his trial counsel, and the latter's brother, who had also represented petitioner. In June 1977, Judge Pollack once more denied the writ, finding that
petitioner has failed to demonstrate that the joint representation or his lawyer's trial strategy was conducive to or created or resulted in any conflict of interest or prejudice.
Consequently, the question of waiver . . . is not and need not be reached in the circumstances of this case.
Once again appellant moved for a certificate of probable cause, leave to proceed in forma pauperis and assignment of counsel. This relief was granted by the same panel that had earlier remanded the case to the district court, and this appeal followed.
In this court, appellant argues principally that his trial counsel's strategy in representing co-defendant Colon prevented development of a credible defense for appellant, who was thus deprived of his Sixth Amendment right to effective assistance of counsel. To state the argument fully, it is necessary to describe briefly the evidence at the state court trial. The prosecutor introduced proof that an undercover officer arranged the purchase of cocaine in a number of telephone conversations with Colon. The officer then met Colon in a Bronx hardware store, where they waited for appellant, who eventually appeared with a paper bag containing the cocaine. Appellant placed the bag on a stack of boxes and said, "I have nothing to do with this deal. It's just [between] you and him." Colon and the officer then left the store to complete the transaction, and Colon was arrested. Other officers subsequently arrested Salomon in the store.
At trial, neither Colon nor appellant offered any evidence. By cross-examination and summation to the jury, their counsel argued that Colon should be acquitted because he had acted solely as an agent for the undercover officer, who wanted to buy cocaine.*fn2 The thrust of the defense offered for appellant was that he was an innocent bystander. Counsel stressed appellant's oral disassociation of himself from the deal, his failure to accompany Colon outside to consummate the transaction and his presence in the store, despite an opportunity to flee, when the ...