Olshen v. McMann, 398
| Decision Date | 09 June 1967 |
| Docket Number | No. 398,Docket 29385.,398 |
| Citation | 378 F.2d 993 |
| Parties | Isadore OLSHEN, Petitioner-Appellant, v. Daniel McMANN, as Warden of Clinton Prison, Dannemora, New York, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Nathan Kestnbaum, New York City, for petitioner-appellant.
Barry Mahoney, Norman M. Beck, Asst. Attys. Gen., Louis J. Lefkowitz, Atty. Gen. of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., for respondent-appellee.
Before WATERMAN, FRIENDLY and ANDERSON, Circuit Judges.
This is an appeal by an incarcerated New York State prisoner from the dismissal by Judge Port of the United States District Court for the Northern District of New York of his petition for a writ of habeas corpus. Thirteen years after his 1948 conviction for attempted robbery had been affirmed, People v. Olshen, 276 App.Div. 781, 93 N.Y.S.2d 300 (2d Dept. 1949) appellant sought a writ of error coram nobis from the Kings County Court in order to vacate his conviction. In this request for collateral relief, appellant claimed he had been denied his right to the effective assistance of counsel in that his retained trial counsel, one Leon Fischbein had simultaneously, without appellant's knowledge, represented one Samuel Blumstein who had been the key prosecution witness at Olshen's trial. The Kings County Court, Barshay, J., conducted a full evidentiary hearing at which both appellant and Fischbein testified. The judge concluded, inter alia, that appellant had failed to establish (1) that Fischbein ever represented Blumstein and appellant simultaneously, (2) that any conflict of interest arose as a result of Fischbein's prior representation of Blumstein on an unrelated charge, or (3) that appellant was prejudiced by Fischbein's acting as his counsel. The court further concluded that Fischbein had skillfully cross-examined Blumstein and had generally conducted appellant's defense with great ability and that appellant knew at the time of his sentencing of his counsel's prior relationship with Blumstein. The application was denied, 30 Misc.2d 1078, 220 N.Y.S.2d 430 (1961), aff'd, 17 App. Div.2d 971, 233 N.Y.S.2d 1023 (2d Dep't 1962), motion for leave to appeal denied by Fuld, J. (Jan. 4, 1963), cert. denied, 374 U.S. 846, 83 S.Ct. 1903, 10 L.Ed.2d 1065 (1963). The issue in the state coram nobis proceedings was the sole ground relied upon in the petition for habeas corpus brought to the federal district court below. The correctness of the denial of that petition is the only question presented upon this appeal.
The court below found, and this finding is presently uncontested, that appellant "received a full and fair state court evidentiary hearing resulting in reliable findings." As we must also consider the case in the light of the state court findings, Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), which findings we have summarized above, we find that there is no ground for reversal and affirm the judgment below.
Unlike the situation in Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942) appellant's counsel here did not simultaneously represent at trial codefendants with competing interests. Nor was a conflict of interest created here, as in United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952), through counsel's simultaneous representation of an accused standing trial and a principal witness for the prosecution who had been convicted on a related charge and was awaiting sentence thereon. Where, as here, the possible conflict arises from a prior representation of a prosecution witness, the primary, if not the only, factor which might deter counsel from staging an effective defense would be his reluctance to divulge or to make use of the knowledge derived from the confidential communications of his former client. As much as we disapprove of counsel's undertaking and proceeding with a defense without informing his client and the trial court of facts underlying a possible conflict of interest,1 the problem presented by an attorney's potential professional reluctance to develop from a witness facts the attorney had obtained as a result of confidential communications need not presently concern us; the record amply demonstrates that as Blumstein had disclosed to state officers his participation in the robbery prior to appellant's trial and therefore had waived the attorney-client privilege there was no reason why his former attorney should not have felt entirely free to examine him. Moreover, any inference of prejudice to appellant is forcefully negated by Fischbein's vigorous cross-examination of Blumstein and his exhaustive attack on Blumstein's credibility. Compare Tucker v. United States, 235 F.2d 238 (9 Cir. 1956).
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Moseley v. Scully
...Moseley argues that "the rule ... has origins that pre-date its crystal clear enunciation by the Supreme Court," citing Olshen v. McMann, 378 F.2d 993 (2d Cir.), cert. denied, 389 U.S. 874, 88 S.Ct. 165, 19 L.Ed.2d 157 (1967), and Lollar v. United States, 376 F.2d 243 (D.C.Cir.1967). Id. Th......
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...ex rel. Kachinski v. Cavell, 453 F.2d 581 (3rd Cir. 1971); Harrison v. United States, 387 F.2d 614 (5th Cir. 1968); Olshen v. McMann, 378 F.2d 993 (2d Cir. 1967), cert. denied, 389 U.S. 874, 88 S.Ct. 165, 19 L.Ed.2d 157; Commonwealth v. Smith, 291 N.E.2d 607 (Mass.1973).15 This type of conc......
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