The opinion of the court was delivered by: DITTER
Presently before the court is the Section 2255 petition of Darrell Anthony Jackson, to vacate the sentence of fifteen years imprisonment imposed by this court following his conviction by a jury of bank robbery. The sole ground of the petition is that Jackson was denied the effective assistance of counsel in violation of the fifth and sixth amendments. In order to understand the theory on which petitioner proceeds, it is necessary to present a brief chronology of the circumstances surrounding his conviction.
Petitioner and co-defendants, Claude Lorenzo Corbitt and Harry Mims, were indicted on May 27, 1971, for the February 23, 1971, armed robbery of the Southeast National Bank, Exton, Pennsylvania. They were convicted on July 31, 1972.
A fourth man, John Clark, had previously been charged in a separate indictment with bank robbery stemming from the same incident. Clark was tried separately and convicted August 6, 1971, almost a year prior to the commencement of the trial of Corbitt, Mims, and Jackson. However, an appeal of Clark's conviction was pending at the time of the trial of the latter three defendants. Both Clark and petitioner were represented by the same attorney, Nino V. Tinari, Esquire.
Petitioner contends that he was denied the effective assistance of counsel because a conflict of interest existed in Tinari's representing him at trial while at the same time prosecuting Clark's appeal.
Specifically, petitioner claims that Mr. Tinari may have foregone exploring the possibility of a negotiated guilty plea out of fear that, as a part of such agreement, the Government might demand that Jackson agree to testify against Clark if his conviction was reversed and a new trial granted by the Court of Appeals.
At least since Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942), it has been clear that joint representation of co-defendants by a single attorney may amount to a denial of the right to the effective assistance of counsel in violation of the sixth amendment if a conflict of interest is thereby created. Glasser, however, did not satisfactorily resolve the question of whether an actual conflict of interest or prejudice must be shown. In reversing Glasser's conviction and ordering a new trial, the Supreme Court stated:
To determine the precise degree of prejudice sustained by Glasser as a result of the court's appointment of Stewart as counsel for Kretske [in addition to Glasser] is at once difficult and unnecessary. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.
Id. at 75-76, 62 S. Ct. at 467. This language suggested that no showing of an actual conflict of interest or prejudice need be made. Yet at the same time the Court refused to order a new trial for co-defendant Kretske since it found that he had suffered no prejudice from the joint representation. Id. at 76-77, 62 S. Ct. at 468. Thus, the problem faced by lower courts since Glasser has been to determine the extent of the showing that must be made by one seeking relief on these grounds. In response to this problem, the Court of Appeals for the Third Circuit adopted the position that:
There must be some showing of a possible conflict of interest or prejudice, however remote, before a reviewing court will find the dual representation constitutionally defective.
Moreover, there are several other factors which reveal the completely speculative nature of petitioner's claim. First, in his post-trial motions and appeal, Clark's major contention was that his second trial constituted double jeopardy in light of the circumstances under which his first trial had been terminated. United States v. Clark, 346 F. Supp. 428 (E.D.Pa.1972), aff'd (by judgment order) 475 F.2d 1396 (3d Cir. 1973). Had the Court of Appeals reversed Clark's conviction on this ground, no new trial would have resulted.
Hence, the Government would have had no reason to seek petitioner's testimony as part of a plea agreement. Second, nothing in the circumstances of this case indicates that the Government might have viewed petitioner as more deserving of leniency than Clark or the other defendants, or have been willing to make any charge concession or to recommend sentence reduction for petitioner in return for his testimony against Clark. See United States ex rel. Small v. Rundle, 442 F.2d 235, 238 (3d Cir.1971).
Furthermore, it must be remembered that:
The Walker test of possible conflict of interest or prejudice however remote, must be applied . . . in light of the normal competency standard for adequacy of representation by counsel adopted in this circuit. United States ex rel. Green v. Rundle, 434 F.2d 1112 ...