Eisemann v. Herbert

• Decision Date: 11 March 2005
• Docket Number: Docket No. 03-2582.
• Parties: Robert EISEMANN, Petitioner-Appellee, v. Victor HERBERT, Superintendent, Collins Correctional Facility, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

401 F.3d 102

Robert EISEMANN, Petitioner-Appellee, v. Victor HERBERT, Superintendent, Collins Correctional Facility, Respondent-Appellant.

Docket No. 03-2582.

United States Court of Appeals, Second Circuit.

Argued: October 22, 2004.

Decided: March 11, 2005.

COPYRIGHT MATERIAL OMITTED

Karen W. Weiss, Asst. District Atty., Mineola, N.Y. (Denis Dillon, Nassau County District Atty., Peter A. Weinstein, Edward Miller, Asst. District Attys., Mineola, N.Y., on the brief), for Respondent-Appellant.

William D. Wexler, North Babylon, N.Y., for Petitioner-Appellee.

Before: NEWMAN, SACK, and B.D. PARKER, Circuit Judges.

JON O. NEWMAN, Circuit Judge.

This appeal concerns a claim of ineffective assistance of counsel based on an alleged conflict of interest. The claim, arising out of a bizarre factual context, was the basis for the August 5, 2003, judgment of the District Court for the Eastern District of New York (Jack B. Weinstein, District Judge), granting a petition for a writ of habeas corpus brought by Petitioner-Appellee Robert Eisemann to challenge his New York State sodomy conviction. See Eisemann v. Herbert, 274 F.Supp.2d 283 (E.D.N.Y.2003). Although the ineffective assistance claim is of arguable concern, we conclude that it is ultimately without merit and that the New York courts did not make "an unreasonable application of[ ] clearly established Federal law, as determined by the Supreme Court," the threshold for habeas corpus relief established by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254(d)(1). We therefore reverse.

Background

Demonstrating that truth is often far stranger than fiction, this case involves a father and a son who sodomized the same victim, a trial lawyer who represented both the father and the son, and the disbarment for fraud convictions of both the trial lawyer and the son's state court appellate lawyer.

Robert Eisemann ("Robert") was charged with sodomizing a seven-year-old girl on five occasions between 1983 and 1985. Robert was in a long-term relationship with the girl's mother. He was arrested on August 8, 1985, and interrogated by two police detectives after being read his Miranda rights. He then signed a statement admitting to sodomy on at least one occasion and to have committed sodomy-type acts with the victim in his sleep.

On the same day that Robert was arrested, police also arrested his father, Henry Eisemann ("Henry"), for sodomizing the same victim and her brother. Henry also made an incriminating statement. Both father and son were indicted on December 9, 1985. Henry was accused of twenty-three counts of sodomy and/or sexual abuse, one count involving the same victim as in Robert's case and the rest involving her twin brother. Robert was indicted on five sodomy counts, all involving the same victim.

Henry and Robert engaged Harold Holtman to represent them, although Holtman was paid by Henry and his wife. Holtman turned out to be a poor choice as he was later convicted of fraud and disbarred. See In re Harold Holtman, 152 A.D.2d 15, 547 N.Y.S.2d 335 (2d Dep't 1989).

In December 1985, Henry pled guilty to attempted sodomy and received a sentence of three-to-nine years.

Robert was represented by both Holtman and his associate, Victor Regan. At the pretrial hearing in August 1986 on the admissibility of Robert's inculpatory statement, Regan conducted the defense. Robert was tried in October 1986. Regan appears to have conducted almost all of the defense, although Holtman attended much, if not all, of the proceedings.

During the trial, the child victim testified against Robert, doing so with her face turned away from him. The police detectives and the victim's mother also testified.

The jury found Robert guilty on three of the five sodomy counts. By the time the verdict was rendered, Robert had disappeared. The District Court found that Holtman had instructed Robert to flee. Robert was sentenced in absentia to a minimum of eight and one-third years and a maximum of twenty-five years.¹

In February 1990, the Appellate Division affirmed Robert's conviction, rejecting his challenges to the sufficiency of the evidence and the admission of his inculpatory statement, but making no mention of a claim of ineffective assistance of trial counsel. People v. Eis[e]mann, 158 A.D.2d 537, 537-38, 551 N.Y.S.2d 304, 304-05 (2d Dep't 1990). However, the Appellate Division subsequently granted a writ of coram nobis, vacating its own decision on the ground of ineffective assistance of Robert's appellate counsel, Marvin E. Basson. See People v. Eisemann, 242 A.D.2d 581, 582, 664 N.Y.S.2d 732 (2d Dep't 1997). Basson later resigned from the bar following his conviction for fraud. See In re Marvin E. Basson, 214 A.D.2d 106, 631 N.Y.S.2d 535 (2d Dep't 1995).

On a subsequent appeal after new counsel was appointed, the Appellate Division vacated Robert's conviction on one of the sodomy counts, but affirmed the remaining counts. People v. Eisemann, 248 A.D.2d 484, 670 N.Y.S.2d 39 (2d Dep't 1998). The Appellate Division found Robert's claim of ineffective assistance of trial counsel to be without merit. Id. at 484, 670 N.Y.S.2d at 41. Leave to appeal was denied by the Court of Appeals. People v. Eisemann, 92 N.Y.2d 851, 677 N.Y.S.2d 82, 699 N.E.2d 442 (1998) (table).

Robert sought relief through habeas corpus on three grounds: first, that Holtman's representation of Henry in general deprived Robert of effective assistance of counsel and that Holtman's many violations of professional responsibility rules, especially his representation of Robert's father, created a conflict that specifically prevented Holtman from providing effective assistance; second, that Robert's counsel provided ineffective assistance by failing to properly object to the confession and alleged trial errors; and third, that Robert was deprived of his rights under the Confrontation Clause because the child victim testified facing away from him at trial.

The District Court determined that the Confrontation Clause claim was not properly preserved for review and that the lack of proper preservation did not result from ineffective assistance of counsel. See Eisemann, 274 F.Supp.2d at 306-07. The District Court also ruled that the claims of ineffective assistance unrelated to Holtman's conflict of interest provided no basis for relief. See id. at 306. The District Court denied a certificate of appealability with regard to these two claims, see id. at 308, and Robert has not challenged either of these rulings in this Court.

With respect to the claim of ineffective assistance due to a conflict of interest arising from Holtman's representation of Robert's father, the District Court ruled that state remedies regarding this claim were properly exhausted. See id. at 298. On the merits, the District Court determined that Holtman's representation of Robert and his father created a conflict of interest and that this conflict "adversely affected [Holtman's] performance," Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), by causing Holtman to forgo three defense strategies that were "viable and reasonable," Eisemann, 274 F.Supp.2d at 302. These were (1) calling Henry as a witness, (2) contending that Henry's confession was coerced, and (3) encouraging Robert to accept a plea in exchange for testifying against Henry. See id. at 302-04. Judge Weinstein also concluded that Holtman had a conflict of interest arising from his fraudulent conduct with respect to the Eisemann family, that a claim of ineffective assistance because of this conflict "should be deemed exhausted," id. at 306, and that "Holtman's interest in concealing his massive wrongdoing eclipsed his interest in zealously safeguarding his client's rights," id. at 305.

Judge Weinstein granted relief solely because of the adverse affect of Holtman's representation of both father and son, and required Robert to be released unless the state retried him within 60 days or took other appropriate action. See id. at 307. The judgment was stayed pending this appeal.

Discussion

The State raises four principal arguments on appeal: first, that the New York courts did not reach a determination that "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1); second, that Robert's representation was not adversely affected by Holtman's representation of Robert's father; third, that the alternative defense strategies suggested by Judge Weinstein were not reasonable or even plausible; and fourth, that Holtman's financial misdeeds did not result in a conflict that adversely affected Robert's representation.

I. Conflicts of Interest and Ineffective Assistance of Counsel

"A defendant's Sixth Amendment right to effective assistance of counsel includes the right to representation by conflict-free counsel." United States v. Blau, 159 F.3d 68, 74 (2d Cir.1998). In the absence of a conflict of interest, a defendant claiming ineffective assistance of counsel must demonstrate that the lawyer's representation "fell below an objective standard of reasonableness," Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that counsel's deficiency was "prejudicial" to the defense, id. at 692, 104 S.Ct. 2052. However, "[p]rejudice is presumed ... if the defendant demonstrates that counsel `actively represented conflicting interests' and that `an actual conflict of interest adversely affected his lawyer's performance.' Cuyler [446 U.S.] at 350, 348, 100 S.Ct. 1708 (footnote omitted)." Id. These components are considered in a single, integrated inquiry. "[T]he [Cuyler v.] Sullivan standard is not properly read as requiring inquiry into actual conflict as something separate and apart from adverse effect. An `actual conflict,' for Sixth Amendment purposes, is a conflict of...