case applying actual conflict standard; no "real conflict" where single counsel represented petitioner and co-defendant who later testified against petitioner, because petitioner failed to show that counsel was limited in cross-examination of co-defendant, that cross-examination was inadequate (3 transcript pages), or that counsel had continuing relationship with co-defendant).
Turchi also claims ineffective assistance of counsel based upon Vernile's alleged incompetence in two respects: the failure to discuss with Turchi his non-trial options, and the failure to call possible witnesses. In order to prove a sixth amendment claim on the basis of incompetence, Turchi must prove that, considering all of the circumstances, these omissions were objectively unreasonable at the time, that is, that they were "outside the wide range of professional competent assistance." "Judicial scrutiny of counsel's performance must be highly deferential" and "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Turchi must also show that the omissions were prejudicial. To establish prejudice, relator must show that there is a reasonable probability - which is a probability sufficient to undermine confidence in the outcome - that but for counsel's unprofessional conduct, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2064-69, 80 L. Ed. 2d 674 (1984). Both of relator's claims of incompetence must fail.
A. Guilty Plea
As previously noted, it may be said with the wisdom of hindsight that perhaps Vernile should have met privately with Turchi. Whether Vernile should have suggested such a meeting or initiated a discussion about a plea of guilty is another matter, and I can not conclude that this omission was outside of the wide range of competent, professional assistance. An attorney is not obligated to initiate plea discussions with the government in every case. See Hawkman v. Parratt, 661 F.2d 1161, 1171 (8th Cir. 1981). It follows he is not required to initiate plea discussions with his client in every case. Moreover, these facts are distinguished from Caruso v. Zelinsky, 689 F.2d 435, 437-38 (3d Cir. 1982), where the attorney rejected the government's proffered plea agreement without consulting the defendant and the court held that in the ordinary case counsel has a duty to inform defendant of such an offer. Cf. Johnson v. Duckworth, 793 F.2d 898, 899-902 (7th Cir. 1986) (noting difference between failing to communicate a plea agreement and advising defendant to plead guilty and holding that counsel acted reasonably in rejecting plea agreement from prosecutor without defendant's consent because of defendant's age, confusion and perceived incompetence). This case is also distinguished from Hawkman, at 1170-71, where "counsel's failure to consider the possibility of plea negotiations despite the patently duplicitous nature of the four felony counts and despite having that possibility pointed out by the state court sentencing judge constituted ineffective assistance of counsel."
In this case, Turchi maintained his innocence. At trial Turchi expressly denied involvement in any of the crimes charged in the indictment, although he admitted having participated with Coppola in one arson for which he could no longer be tried because of state law and collateral estoppel. Much was made of the honesty of his admission because, it was argued, this made the denial of his own (and the other defendants') involvement in these crimes all the more credible. See United States v. Morrone, 502 F. Supp. 983, 988-89 (E.D. Pa. 1980) (citing Commonwealth v. Grazier, 481 Pa. 622, 393 A.2d 335 (1978): state law and collateral estoppel doctrine bar state arson charge where defendant acquitted of federal mail fraud charges in connection with same arson scheme), aff'd, 672 F.2d 904 (1981), cert. denied, 455 U.S. 941, 102 S. Ct. 1433, 71 L. Ed. 2d 652 (1982). Furthermore, Vernile believed that Turchi was innocent. In this situation there is at least some question as to an attorney's proper role in plea discussions. Accord North Carolina v. Alford, 400 U.S. 25, 38, 27 L. Ed. 2d 162, 91 S. Ct. 160 n.10 (1970) (guilty pleas coupled with claims of innocence should not be accepted unless there is a factual basis for the plea); United States v. Hecht, 638 F.2d 651, 653 (3d Cir. 1981) (acceptance of guilty plea when defendant's guilt is equivocal and a sufficient factual basis for plea is lacking would be constitutional error).
Moreover, Vernile believed that the government's chief witness, Richard Coppola, was not telling the truth, that Vernile would be able to demonstrate this, that the jury would find Coppola incredible and believe that it was instead he who had committed the arsons, and that the government's case was weak and would be unsuccessful. In these circumstances, Vernile's pursuit of a common defense and failure to recommend a guilty plea was professionally reasonable at the time and is entitled to deference. The fact, gained through hindsight, that Vernile's trial strategy did not yield an acquittal, does not mean that Vernile should have doubted the sincerity of Turchi's protestations of innocence under oath, nor does it render incompetent the decision to pursue that strategy rather than a guilty plea.
Additionally, relator can not show that he suffered any prejudice from counsel's failure to discuss non-trial options. Obviously, if Turchi knew of the various options that were his, Vernile's failure to initiate a discussion concerning them is irrelevant. In this regard, Turchi does not claim that he was unaware of the commonly known (but for many reasons not always attractive) possibility of pleading guilty and cooperating with the government. He does not say he wanted to plead guilty, that there was a reasonable probability that he would have pleaded guilty, or that if granted a new trial there is a reasonable probability that he will plead guilty. He only testified that he would have considered a guilty plea and claims that counsel was incompetent for failing to suggest it.
This evidence falls short of proving a reasonable probability that but for counsel's omission Turchi would have pleaded guilty or the government would have entered into a plea agreement. See e.g. Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 369-71, 88 L. Ed. 2d 203 (1985) (held Strickland standard applies to plea process; no prejudice shown where defendant pleaded guilty upon counsel's erroneous advice because defendant did not show reasonable probability that but for counsel's error he would not have pleaded guilty and insisted on going to trial); Johnson v. Duckworth, at 902 n.3 (citing Hill, court expressed serious doubt as to whether petitioner's after-the-fact testimony regarding his desire to plead guilty by itself would be sufficient to establish that prior to trial, but for attorney's actions, there was reasonable probability petitioner would have pleaded guilty); United States v. Fisher, 772 F.2d 371, 373-74 (7th Cir. 1985) (incompetence argument rejected where defendant could not show that counsel's failure to advise as to the possibility of a conditional guilty plea caused him any prejudice: it did not preclude him from pleading not guilty and proceeding to trial and it did not prevent him from striking a better plea agreement with the government).
B. Defense Witnesses
Vernile's failure to call the owners of Archway Tavern, or Ronald Essner, the owner of the building in which Archway was located, was neither professionally unreasonable nor prejudicial. Turchi, charged with committing arson had little to gain by putting the owners of the burned property on the stand. At best these witnesses purportedly would have testified that they did not know Turchi, that they did not hire him to burn their property, and that they did not know who burned it.
Because the predicate offenses were arson, and not arson for hire, and because there is no reason to expect an arson victim to know the identity of the arsonist, the relevancy and importance of this evidence is questionable.
At worst, Turchi risked the possibility that the government would elicit damaging evidence from these witnesses on cross-examination.
The Archway owners, having already been the focus of some suspicion, were investigated but not charged with involvement in the arson. Turchi would hardly want to accentuate this fact, or invite their participation, in a trial which included the other owners of burned property as co-defendants, only to obtain their (not surprising) testimony that they did not hire Turchi to burn their business.
In sum, relator has failed to prove a violation of his sixth amendment right to effective assistance of counsel based upon either a conflict of interest or incompetence. He has also failed to prove a violation of his fifth amendment right to fundamental fairness under the due process clause. Accordingly, his petition for habeas corpus must be denied.
An order follows.
AND NOW, this 17th day of September, 1986, it is hereby ordered that the habeas corpus petitioner of Ronald Turchi is denied for the reasons set forth in the accompanying memorandum.