Opinion
98-CIV-6391 (KMW)(THK)
February 2, 2001
OPINION ORDER
Pro se petitioner seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his state court conviction of conspiracy in the second degree, for his involvement in a crack cocaine operation. In a Report and Recommendation dated February 8, 2000, Magistrate Judge Theodore H. Katz recommended that the Court grant petitioner's request on the ground that he was denied effective assistance of counsel because the trial court failed to make any inquiry into defense counsel's possible conflict of interest. For the reasons stated below, the Court accepts Magistrate Judge Katz's recommendation, over respondent's objections, and grants the habeas petition.
I. Discussion
Petitioner raises three grounds for habeas relief: (1) that he was denied effective assistance of counsel because his trial counsel suffered from a conflict of interest; (2) that the trial court improperly admitted evidence of a prior uncharged crime; and (3) that the trial court improperly questioned witnesses and made sarcastic comments during the trial. The Court grants the petition on the first ground. The Court therefore does not reach the merits of the second and third grounds of the petition.
A. Ineffective Assistance of Counsel
The Court adopts the Report's thorough and reasoned recommendation that petitioner's application for a writ of habeas corpus be granted because the state trial judge had knowledge that defense counsel suffered from a possible conflict of interest, namely that counsel had represented one of the lead prosecution witnesses in prior criminal proceedings, and yet the trial judge failed to make an inquiry into the possible conflict or to obtain petitioner's consent to the representation notwithstanding the conflict.
Petitioner asserts correctly that the state court adjudication of his criminal case resulted in a decision that was contrary to clearly established Supreme Court law. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d)(1), states that the Court may grant habeas relief to state prisoners in cases where the state court adjudication resulted in a decision that was either: (a) contrary to, or (b) involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court. See Williams v. Taylor, 120 S.Ct. 1495, 1516 (2000) (O'Connor, J., concurring). The "contrary to" prong applies when: (a) the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law; or (b) the state court confronts facts that are materially indistinguishable from relevant Supreme Court precedent and arrives at an opposite result. See id. at 1519; Lurie v. Wittner, 228 F.3d 113, 127 (2d Cir. 2000) (citations omitted).
The Court notes that the Supreme Court decision in Williams supersedes respondent's analysis of the "contrary to" and "unreasonable application of" prongs of AEDPA. See Respondent Strack's Objections to Magistrate Judge Katz's Report and Recommendation ["Resp.'s Objections"], dated March 2000, at 6-9.
The Court agrees with the Report's conclusion that the failure to make an inquiry into defense counsel's known potential conflict of interest was contrary to clearly established Supreme Court law. The Sixth Amendment guarantees the right to representation free from conflicts of interest. See Wood v. Georgia, 101 S.Ct. 1097, 1103 (1981) (citing Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708 (1980); Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173 (1978)); United States v. Levy, 25 F.3d 146, 152 (2d Cir. 1994) (citation omitted). Based on this right, trial courts have a threshold obligation to inquire into possible conflicts whenever the trial court knows or reasonably should know of the possibility of a conflict. See Wood, 101 S.Ct. at 1104; Cuyler, 100 S.Ct. at 1717; Ciak v. United States, 59 F.3d 296, 302 (2d Cir. 1995); Levy, 25 F.3d at 153. The trial court must investigate the facts and details of the attorney's possible interests to determine whether there is an actual conflict, a potential conflict, or no conflict. See Levy, 25 F.3d at 153 (citation omitted). When a court is sufficiently apprised of even the possibility of a conflict of interest and fails to conduct an inquiry, Supreme Court law "mandates a reversal." Wood, 101 S.Ct. at 1104 1104 n. 18, 21; Levy, 25 F.3d at 153-54 (citing Cuyler, 100 S.Ct. at 1717-18; Holloway, 98 S.Ct. at 1180-81); Ciak, 59 F.3d at 302 (2d Cir. 1995) (citing Wood, 101 S.Ct. at 1104 n. 18). This automatic reversal rule applies both on direct appeal and in habeas cases. See Ciak, 59 F.3d at 302.
The record here reveals that the trial court was aware of the possibility of a conflict of interest. On two occasions, the court was informed that defense counsel had previously represented one of the main prosecution witnesses. First, the prosecutor made a statement on the record prior to the witness' testimony that defense counsel had represented the witness on prior occasions and that the witness consented to the cross-examination. See Trial Transcript New York v. Sutton ["Tr."], Sept. 30, 1991, at 1015:7-14. Second, the witness made an inadvertent disclosure during cross examination that he had been represented previously by defense counsel. See Tr. at 1194:12-13. Based on these statements by the prosecutor and the prosecution witness, the Court concludes that the trial court certainly had knowledge of the fact that defense counsel had previously represented the prosecution witness.
In addition, the court made statements that indicated that it was aware of the prior representation of the prosecution witness by defense counsel. See Tr. 1201:11-1202:6.
In addition, the Court adopts the Report's conclusion that the limited evidence about counsel's prior representation indicated the possibility of a conflict of interest. District courts typically hold that defense counsel's prior representation of a prosecution witness represents a conflict of interest. See United States v. Locasio, 6 F.3d 924, 931 (2d Cir. 1993) (citation omitted); see also Ciak, 59 F.3d at 304-05 (possible conflict of interest where government witness was a recent client of petitioner's counsel). The trial court should have inquired, but did not inquire, into the fact that defense counsel had represented the prosecution witness on charges that arose during the time frame of the conspiracy for which petitioner was charged and that the witness was awaiting sentencing at the time of his testimony at petitioner's trial. Given that the witness' cooperation and testimony at petitioner's trial would have an impact on the witness' sentencing, the trial judge certainly needed to inquire into whether or not defense counsel represented the witness in the case awaiting sentencing in order to determine whether a conflict could affect defense counsel's cross-examination of his former client.
In its objection, respondent argues that Second Circuit law holds that there is no need for a conflict inquiry where a witness who was previously represented by defense counsel waives his or her continuing attorney-client privilege. See Resp.'s Objections at 15. The Court notes that the case law cited by respondent does not support respondent's position. Respondent relies on United States v. Leslie, 103 F.3d 1093 (2d Cir. 1997). However, the Leslie decision states clearly that a trial court has an obligation to explore possible conflicts. Id. at 1098. Respondent also relies on United States v. Lussier, 71 F.3d 456 (2d Cir. 1995). This decision states that a waiver by the witness as to privileged matters removes one of the primary sources of conflict that arises when a defense counsel cross-examines a former client who now sits as a prosecution witness. See id. at 462. However, the Lussier decision does not state that such a waiver removes all possible sources of conflict. Therefore, the Court rejects respondent's argument that the trial court's knowledge that the witness consented to cross examination by his former counsel relieves that state court of its duty to inquire.
Yet, despite this knowledge, the Court made no inquiry into the possible conflict. Specifically, the record reveals that the court made no inquiry into any of the following: the prior relationship between counsel and witness, whether counsel believed there to be a conflict, and whether counsel had informed petitioner of the possibility of a conflict. The Court therefore finds that the state court adjudication resulted in a decision that was contrary to the clearly established federal requirement that the trial court make an inquiry into a possible conflict of interest.
Respondent argues that the Court may not grant relief under AEDPA because the state trial judge's failure to conduct an inquiry was not contrary to, nor was it an unreasonable application of, existing Supreme Court precedent. See Resp.'s Objections at 5-6. Respondent points to a number of circuit courts, other than the Second Circuit, that refuse to apply the automatic reversal rule. This Court notes this disagreement among the circuits but relies, as it must, on the Second Circuit's statements of what constitutes clearly established Supreme Court law. The Second Circuit firmly holds that the automatic reversal rule, as relied on in this Order, represents clearly established Supreme Court precedent as set forth in Wood, Cuyler, and Holloway. See, e.g., Levy, 25 F.3d at 153-54 (citing Cuyler and Holloway for the proposition that reversal is automatic when a possible conflict has been entirely ignored); Ciak, 59 F.3d at 303 (stating that "Cuyler . . . require[s] reversal of a defendant's conviction where the trial court violates its duty of inquiry"). Therefore, this Court concludes that the trial court's failure to conduct a conflicts inquiry was contrary to clearly established federal law, as determined by the Supreme Court.
B. Additional Grounds
Petitioner also claims that he was denied a fair trial because the state trial judge improperly admitted evidence of a prior uncharged crime and improperly questioned witnesses and made sarcastic comments during the trial. Since the Court hereby grants the habeas petition on the first ground, the Court does not find it necessary to reach the other grounds for the petition.
II. Conclusion
For the reason stated above, the Court grants petitioner's motion for a writ of habeas corpus and vacates the conviction.
SO ORDERED