Before STALEY, GIBBONS and ROSEN,*fn* Circuit Judges.
Submitted on Briefs Jan. 31, 1973.
Before STALEY, ALDISERT and GIBBONS, Circuit Judges.
This is an appeal from the denial of a petition for habeas corpus challenging a New Jersey sentence. Appellant Hart was convicted of unlawful possession of lottery slips, N.J.Stat.Ann. § 2A:121-3(b), working for a lottery operation, N.J.Stat.Ann. § 2A:121-3(a), and bookmaking, N.J.Stat.Ann. § 2A:112-3. The district court denied the petition on the basis of the State court record, without an evidentiary hearing, but, pursuant to 28 U.S.C. § 2253, granted a certificate of probable cause for appeal. Two issues, as to both of which State remedies have been exhausted, are raised by the petition. Hart contends, first, that he was deprived of the effective assistance of counsel in his criminal trial because in that trial a single defense attorney, retained by his codefendant employers, represented him, the two employers, and three other codefendants. His second contention is that in the criminal trial the State introduced evidence obtained in violation of the fourth amendment. Since no timely motion to suppress was made on his behalf, the second contention is closely related to the effective assistance of counsel argument.
Hart and five others were indicted for gambling offenses alleged to have been committed at Whitey's Bar and Grill in Paterson. That business was owned by the codefendants John and Grace Battersby. Hart was employed by them as a bartender. The Battersbys lived in an apartment above the business premise. Hart and the Battersbys were charged with maintaining a gambling resort, N.J.Stat.Ann. § 2A:112-3, bookmaking, N.J.Stat.Ann. § 2A:112-3, possession of lottery slips, N.J.Stat.Ann. § 2A:121-3(b), and working for a lottery, N.J.Stat.Ann. § 2A:121-3(a). Three patrons of the bar, Wolcott, Stewart, and Chambliss, were charged with possession of lottery slips. All six were represented by the same retained attorney and were tried together. No pretrial motions for severance or for suppression of evidence were made on behalf of any defendant. The record discloses no inquiry from the State trial court either to counsel or to the defendants as to any possible conflict of interest among the defendants. See Government of the Virgin Islands v. Hernandez, 476 F.2d 791 (3d Cir., 1973); Government of the Virgin Islands v. John, 447 F.2d 69, 74-75 (3d Cir. 1971).
At the end of the State's case it consented to the dismissal of the charge that Hart had maintained a gambling resort. N.J.Stat.Ann. § 2A:112-3. All other charges went to the jury. In the defense case Wolcott, Stewart, Chambliss, and John Battersby took the stand. Hart and Mrs. Battersby did not. Wolcott and Stewart were acquitted. Chambliss was convicted of possession of lottery slips, but did not appeal. The Battersbys and Hart were convicted on all counts except the one charge against Hart which had been dismissed. Following the conviction Hart arranged for separate representation by the New Jersey Public Defender. An appeal on his behalf raising the same issues presented here resulted in an affirmance by the Appellate Division. State v. Hart, No. A-935-69 (N.J.Super., App.Div., Mar. 26, 1971). The New Jersey Supreme Court denied certification. State v. Hart, 58 N.J. 339, 277 A.2d 396 (1971). A separate appeal by the Battersbys resulted in an affirmance, and the denial of certification. State v. Battersby, 57 N.J. 140, 270 A.2d 42 (1970).
The indictments were the result of a raid conducted by the anti-gambling squad of the Paterson Police Department on March 18, 1969, in execution of a search warrant. Hart asserted on appeal that despite the failure of the common counsel to make a suppression motion admission of evidence seized in the raid should have been noticed as plain error. In rejecting this contention the Appellate Division, quoting from the disposition of the Battersbys' appeal, State v. Battersby, No. A-891-69 (N.J.Super., App.Div., July 2, 1970), said:
"This point lacks substantial merit. This is not a situation where a defendant may have suffered a manifest denial of justice by reason of some palpably inept performance by an assigned attorney. The present case involves a hind-sight attack upon the professional handling of the defense by an attorney of one's own choosing. There is nothing in the record to support the conclusion that a pretrial motion to suppress the incriminating evidence found upon defendants' premises by the police in their execution of a search warrant, obtained upon the basis of a supporting affidavit, would have been granted."
There was in the record, however, the affidavit upon which the search warrant issued, which in relevant part reads:
"3. That the facts tending to establish the ground for this application and the probable cause of my belief as aforesaid, are as follows:
Tues. March 11, 1969 received from a confidtential informant, information regarding taveren in question that there was a bartender by the name of George taking horse and number action in the taveren and turning it over to owner who reside upstairs over the taveren with his wife.
Tues. 10:45 A.M. till 1:35 P.M. stood in area of taveren and went in there for lunch and then returned to office. All the time this date I observed from my private car eleven men run in and run right out none of above stood in for any legth of time. Plus when I was in ther having lunch I observed two men come into establishment and talk to George and then he went upstairs at which time owners wife was downstairs with patrons. On this date I was ...