APPEAL FROM THE DENIAL OF RELIEF UNDER 28 U.S.C. § 2255, IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Crim. No. 79-72)
Before Hunter, Weis and Higginbotham, Circuit Judges.
Gabriel Briguglio, convicted of federal criminal charges in 1979, petitioned the district court for a new trial under 28 U.S.C. § 2255. The district court denied Briguglio habeas corpus relief*fn1 without affording him an evidentiary hearing on his claims. Because we conclude that Briguglio was entitled to the hearing he requested, we will remand.
During the trial of the charges against Briguglio, Briguglio's trial counsel (he has new counsel on appeal) was under investigation by the same United States Attorney's Office that was prosecuting the case against Briguglio. Counsel was advised that he was under investigation. Briguglio was not made aware of the situation until after the jury hearing his case found him guilty. Briguglio's counsel was later indicted on, and plead guilty to, a criminal charge before the United States District Court for the District of New Jersey.
Briguglio argues that he is entitled to a new trial because his counsel labored under an actual conflict of interest in at least the following particulars:
1. Counsel's personal anxiety prevented him from zealously pursuing Briguglio's defense.
2. Briguglio's "name was mentioned" (Petitioner-Appellant's Brief at 10) at the trial of counsel's co-defendants.
3. The United States Attorney's Office would not discuss a plea agreement on Briguglio's case with Briguglio's counsel while Briguglio's counsel was under investigation, because "there might (later) be a question as to the validity of the plea." (Affidavit of Jeffrey Speiser, Assistant United States Attorney).
We cannot determine from the present record whether Briguglio's counsel labored under an actual conflict of interest, whether any such conflict may have affected the adequacy of his representation, or whether Briguglio's defense was prejudiced by his counsel's difficulties.
28 U.S.C. § 2255 provides in part:
Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States Attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto ....
In Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S. Ct. 1708, 1718, 64 L. Ed. 2d 333 (1980), the Supreme Court enunciated the principle that "In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance" (footnote omitted). Moreover, "a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief." 446 U.S. at 349-50, 100 S. Ct. at 1718-19.
In Wood v. Georgia, 450 U.S. 261, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981), a case involving multiple representation, the Court remanded for evidentiary development in the state courts because the appellate record showed the possibility of a conflict of interest on counsel's part and the absence of opportunity at trial ...