Appeal from a judgment of the United States District Court for the Southern District of New York entered on February 23, 1979, after an evidentiary hearing before Gerard L. Goettel, Judge, dismissing Colon's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The claim on appeal is that Colon was deprived of his Sixth Amendment right to effective assistance of counsel by the joint representation of himself and a co-defendant at a state trial for violation of the New York narcotics law. Reversed.
Before Lumbard, Mansfield and Gurfein, Circuit Judges.
Victor Colon appeals from a judgment of the United States District Court for the Southern District of New York entered on February 23, 1979, after an evidentiary hearing before Gerard L. Goettel, Judge, dismissing Colon's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Appellant's sole claim on appeal is that he was denied effective assistance of counsel at his state trial because he and his co-defendant were jointly represented by the same counsel. We agree and reverse.
Colon and his co-defendant, Mariano Salomon, were convicted in June, 1974, in New York state court after a jury trial for possession and sale of cocaine. The evidence at trial consisted primarily of the testimony of an undercover police officer. The officer had arranged for the purchase of the cocaine in a series of telephone calls to appellant Colon, some of which were recorded and the tapes admitted into evidence at trial. Colon and the officer then met in a Bronx hardware store and waited for the arrival of Salomon, who eventually appeared carrying a bag containing cocaine. Salomon set the bag down and announced "I have nothing to do with this deal." The officer checked the powder to be sure it was cocaine and weighed it in the hardware store. Then the officer suggested that Colon accompany him to his car to get the money, which Colon did. Colon was arrested after the two men had left the store; Salomon was subsequently arrested in the hardware store.
At trial, both Salomon and Colon were represented by the same retained attorney, who was being paid solely by Salomon. Neither defendant called any witnesses, and defense counsel waived an opening statement. Through cross-examination of the State's witnesses and summation to the jury, defense counsel urged that Colon was acting solely as an agent of the buyer, which under New York law is a valid defense to a charge of the illegal sale of narcotics. See People v. Roche, 45 N.Y.2d 78, 407 N.Y.S.2d 682, 379 N.E.2d 208 (1978); People v. Chong, 45 N.Y.2d 64, 407 N.Y.S.2d 674, 379 N.E.2d 200 (1978); People v. Lindsey, 16 A.D.2d 805, 228 N.Y.S.2d 427 (2d Dept. 1962), Aff'd., 12 N.Y.2d 958, 238 N.Y.S.2d 956, 189 N.E.2d 492 (1963). The defense theory urged on behalf of Salomon was that he was merely an innocent bystander.
The jury found both defendants guilty. Both convictions were affirmed by the Appellate Division without opinion, People v. Salomon, 50 A.D.2d 1103, 377 N.Y.S.2d 347 (1st Dept. 1975); People v. Colon, 51 A.D.2d 1104, 381 N.Y.S.2d 570 (1st Dept. 1965), and both defendants were denied leave to appeal to the New York Court of Appeals.
In early 1976 Salomon filed his pro se petition for a writ of habeas corpus, in the District Court for the Southern District of New York, raising a Sixth Amendment claim along with other issues. In July 1976 his petition was denied, without an evidentiary hearing, by Judge Pollack of that court, who found that Salomon had failed to show any prejudice from the joint representation. Salomon then petitioned this court for a certificate of probable cause under 28 U.S.C. § 2253, for leave to proceed in Forma pauperis on appeal, and for appointment of counsel. In March, 1977, we vacated the judgment of the district court and remanded for consideration of the question of waiver. The district court then appointed counsel for Salomon and held an evidentiary hearing. Judge Pollack again denied the petition for a writ of habeas corpus, finding that Salomon had failed to demonstrate that the joint representation was "conducive to or created or resulted in any conflict of interest or prejudice." Salomon v. LaVallee, 575 F.2d 1051, 1053 (2d Cir. 1978) (quoting from the finding of the district court). The issue of waiver was not reached. On appeal this court held that there was not a sufficient inquiry at the state trial into the joint representation issue and therefore remanded for "a reconsideration of the issue of prejudice, with the burden this time on the state to show its absence and not . . . on (Salomon) to demonstrate its existence." Salomon v. LaVallee, supra, 575 F.2d at 1055.
Appellant Colon filed his pro se petition for a writ of habeas corpus in October, 1976, while Salomon's first appeal to this court was still pending.*fn1 Colon did not expressly assert a claim that the joint representation had denied him effective assistance of counsel. Judge Goettel appointed counsel for Colon, and on August 5, 1977, with the State's express consent, an amended petition on behalf of Colon was filed clearly asserting the claim now before us on appeal. Judge Goettel held Colon's amended petition in abeyance since at that time Salomon's second appeal to this court was pending. Following our second remand, the Salomon and Colon petitions were joined for an evidentiary hearing before Judge Goettel.
At the evidentiary hearing, the State called former Assistant District Attorney Scotto (the prosecutor at the original trial), A. Matthew Broughton (an associate of the defense counsel at trial), Colon and Salomon. In addition, the State submitted an affidavit from the state trial judge, transcripts of the pre-trial proceedings in the state court, and the testimony of the defense counsel as given at the initial evidentiary hearing held before Judge Pollack on Salomon's petition. The State argued that Colon and Salomon had waived the joint representation claim prior to trial and that there had been no prejudice to either petitioner from the joint representation. After the evidentiary hearing had concluded, in October 1978 the State moved to dismiss Colon's petition for failure to exhaust state remedies on the claim of ineffective assistance of counsel.
Judge Goettel denied the State's motion to dismiss, which he noted was made "somewhat incredibly after over two years of reluctant litigation." Colon had not explicitly raised the ineffective assistance of counsel claim in his state appeal, although he had challenged his joint trial on constitutional grounds. However, co-defendant Salomon, whose state appeal had been decided first, had explicitly raised the joint representation issue in his state appeal, and the Appellate Division had affirmed his conviction without opinion. Judge Goettel concluded that "there is no reason to expect that the state courts would have altered their view of the case for Colon's benefit." In addition, Judge Goettel found that "the State's extensive delay in asserting the exhaustion ground would itself be sufficient to support a discretionary decision not to dismiss on that ground." Judge Goettel concluded that in light of the State's prior consent to the amendment of Colon's petition to assert the ineffective assistance of counsel claim, "the State's motion must be considered close to frivolous."
On the issue of waiver, Judge Goettel noted that this court had already held in Salomon v. LaVallee, supra, 575 F.2d at 1055, that there had been no inquiry by the state trial judge of Salomon himself on the issue of joint representation or on the risk of a conflict of interest, and that this represented the law of the case as to Salomon. "(Based) on the evidence presented in this proceeding," Judge Goettel found that there was not a showing "that each of the petitioners was advised explicitly of the inherent potential for conflict and of the possibility that separate counsel could be appointed, or that they, with this knowledge, willingly consented to be jointly represented." The burden was therefore on the State to show a lack of prejudice from the joint representation. Judge Goettel concluded that the State had met that burden and that there was no "real, specific or material prejudice" from the joint representation. Colon and Salomon have separately appealed. Only Colon's appeal is before this court at the present time.*fn2
We agree with the district court that appellee's motion to dismiss Colon's petition for failure to exhaust state remedies, an argument also pressed before this court, is "close to frivolous." The summary rejection of co-defendant Salomon's identical ineffective assistance of counsel claim by the Appellate Division prior to Colon's state appeal demonstrates that it would have been futile for Colon to have raised the claim on his direct appeal, which relieved him of the necessity of pursuing state remedies. Stubbs v. Smith, 533 F.2d 64, 68-69 (2d Cir. 1976). In addition, the State consented to the amendment of the petition to add a claim of ineffective assistance of counsel and did not raise the exhaustion issue until after the evidentiary hearing and some fourteen months after the amendment of the petition. Cf. United States ex rel. Graham v. Mancusi, 457 F.2d 463, 467-68 (2d Cir. 1972).
Judge Goettel's finding that Colon and Salomon were not explicitly and directly advised by the state trial judge of the inherent potential for conflict in joint representation and of the possibility of appointment of separate counsel, and that therefore neither defendant knowingly consented to joint representation, is adequately supported by the record. Although it appears that the state trial judge did discuss the possibility of a conflict of interest in the joint representation with an associate of defense counsel, there was conflicting evidence on whether the potential hazards were ever discussed with Colon and Salomon personally. Judge ...