U.S. ex rel. Tonaldi v. Elrod

• Citation: 716 F.2d 431
• Decision Date: 14 September 1983
• Docket Number: No. 82-2063,82-2063
• Parties: UNITED STATES of America, ex rel. Ronald TONALDI, Petitioner-Appellee, v. Richard J. ELROD and Tyrone C. Fahner, Respondents-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 431

716 F.2d 431

UNITED STATES of America, ex rel. Ronald TONALDI, Petitioner-Appellee, v. Richard J. ELROD and Tyrone C. Fahner, Respondents-Appellants.

No. 82-2063.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 8, 1983.

Decided Aug. 19, 1983.

Rehearing Denied Sept. 14, 1983.

Julius Lucius Echeles, Chicago, Ill., for petitioner-appellee.

Kenneth A. Fedinets, Chicago, Ill., for respondents-appellants.

Before CUMMINGS, Chief Judge, WOOD and ESCHBACH, Circuit Judges.

ESCHBACH, Circuit Judge.

The question in this case is whether the petitioner knowingly and intelligently waived his Sixth Amendment right to counsel free from a conflict of interest. The district court answered the question in the negative and ordered the petitioner released from custody. Noting jurisdiction under 28 U.S.C. Sec. 2253, we reverse.

I.

In 1979, the petitioner's car was stopped for proceeding through a red light. A police officer approached the car, which contained the petitioner and two passengers, and viewed a dark-colored vinyl bag on the front seat. The officer also saw a clear-plastic bag of white powder protruding from the dark bag. After the powder was analyzed, all three persons in the car were indicted for the unlawful possession of cocaine.

The petitioner and his two co-defendants all retained the same counsel. Given the nature of the case and certain evidence introduced at the preliminary hearing, the assistant State's attorney doubted whether one attorney could adequately represent all three defendants. Before the trial began, therefore, the assistant State's attorney initiated a colloquy with the court, the defense attorney, and the defendants. The relevant portions of that exchange are:

[ASSISTANT STATE'S ATTORNEY]: Your Honor, in ... the Preliminary Hearing we feel that the testimony of the passengers is different from the driver's, and because of that--

THE COURT: Different in what sense, so [the defense attorney] will know what we're talking about.

[ASSISTANT STATE'S ATTORNEY]: Well, your Honor, with respect to the knowledge of contraband, how it got there in the car, and we feel that to protect the record they should be made aware that there's, what the State feels is a possible conflict for their own interests, and if they want to waive having separate attorneys we feel it's required to protect the record.

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THE COURT: Well, I'm aware of the fact that if there is a conflict the defendants are entitled to separate counsel, and it's up to them to--it's really up to their attorney to be able to determine whether or not there's some conflict. I really don't know.

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You see, I can't tell them that there may be a possible conflict without knowing what it is. In other words, they don't know what they're waiving.

[ASSISTANT STATE'S ATTORNEY]: Your Honor, that their testimony in some ways might conflict one another and might bring harm to their interest.

THE COURT: Well, that would be to their disadvantage, no doubt about that.

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THE COURT: It certainly is a serious problem when defendants are represented by a single lawyer who is torn between his obligation to those defendants by evidence that might--coming from one defendant that might harm the other's position here .... Well, do you have any objection if I make inquiry of your clients?

[DEFENSE ATTORNEY]: No.

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THE COURT: Mr. Tonaldi [the petitioner]--and I speak to you first because the procedure followed in all cases, whether criminal or civil, whoever is named first in the pleading he goes first, so that is why I speak to you first. And it's not that I regard you as any less important or more important than any other of the defendants.

Mr. Tonaldi, the State is genuinely concerned because it would be unfair to you and your co-defendants that there might be some conflict between the three of you that would make it improper for you to have one lawyer.

In other words, your attorney has to be concerned with your interest exclusively, and it would be very difficult for your attorney if he represents two defendants where the defense might be inconsistent and I don't know whether anybody is going to testify here, because you don't have to testify, but if some defendants or all defendants should testify and say something that was harmful to the other defendant that would be a conflict in the testimony probably, and it would be difficult for one lawyer to fairly represent all defendants when that occurs.

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Knowing that do you have any objection to Mr. Solomon [the defense attorney] representing you and the other two defendants at the same time?

DEFENDANT TONALDI: No sir.

At trial, the difficult situation that the court discussed did transpire. One of the petitioner's co-defendants testified that she first saw the dark vinyl bag "on the floor of the front of the car" when the petitioner, then alone in the car, picked her up at her home. The trial judge, who sat as the trier-of-fact, credited this testimony and found only the petitioner guilty of possessing cocaine.

On appeal the petitioner contended that a conflict of interest rendered his attorney's assistance constitutionally defective. The conflict of interest manifested itself, according to the petitioner, when the defense attorney called the petitioner's co-defendant to the stand and elicited testimony inculpating the petitioner. See generally Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980) (a person who did not object to joint representation must establish that an actual conflict adversely affected his lawyer's performance). The State countered this argument by asserting that the petitioner knowingly and intelligently waived his right to counsel unhindered by a conflict of interest. See generally Holloway v. Arkansas, 435 U.S. 475, 483 n. 5, 98 S.Ct. 1173, 1178 n. 5, 55 L.Ed.2d 426 (1978) (right to counsel free from conflict of interest may be waived).

The Appellate Court of Illinois agreed with the petitioner that "an actual conflict did manifest itself at trial." People v. Tonaldi, 98 Ill.App.3d 528, 531, 54 Ill.Dec. 297, 300, 424 N.E.2d 1200, 1203 (1981). However, after reviewing the colloquy reprinted above, the court held "that under the circumstances surrounding this case defendant made an intelligent and knowing waiver of his right to separate counsel." See id. Accordingly the petitioner's conviction was affirmed.

Unsatisfied with the disposition of his constitutional claim, the petitioner brought this action seeking a writ of habeas corpus. The petitioner claimed, as he did in the Appellate Court of Illinois, that he was denied his Sixth Amendment right to counsel untrammeled by a conflict of interest. Anticipating that the respondents would assert waiver as a defense, the petition stated that the trial court's "inquiry was couched in vague generalities and was insufficient to allow petitioner to make a knowing and intelligent waiver of his 6th amendment right to separate counsel."

The respondents did, in fact, move for summary judgment on the ground that the petitioner waived his right to an attorney unaffected by a conflict of interest. The district court denied the motion because it could not "conclude as a matter of law that the trial court's warnings and [the petitioner's] acquiescence constitute a valid waiver of the right to effective assistance of counsel." 537 F.Supp. 1229, 1231 (1982). The district court therefore held an evidentiary hearing where the petitioner testified that he relied on his attorney's advice in not seeking separate counsel. Moreover, the petitioner testified that he "really didn't understand" the state trial court's admonition and question concerning a possible conflict of interest.

The district court subsequently entered judgment in favor of the petitioner and ordered his release from custody. In his thoughtful Memorandum Opinion the district judge wrote:

Although the trial court attempted to explain to [the petitioner] the danger of joint representation, this explanation was constitutionally defective because the court itself was not in a position to know the specific dangers and could not reasonably predict them so as to intelligently advise the petitioner .... The abstract and hypothetical admonishment delivered to [the petitioner] in this case was simply insufficient to inform him of the fundamental nature of the right he was purporting to waive.

... [I]t may very well be the better procedure for a court to err on the side of precluding joint representation rather than be vulnerable on review to the kind of contentions raised by petitioner in this case.

541 F.Supp. 608, 612-13 (1982). Finding the state trial court's statements to be inadequate and discerning no other source of advice, the district judge concluded that the petitioner was not given sufficient information to render his waiver knowing and intelligent.

II.

Although the respondents, in their motion for summary judgment, stated that the petitioner's Sixth Amendment claim was "raised, argued extensively, and disposed of in the state court system," they have changed their position and now contend that the petition should have been dismissed as unexhausted. A petition for a writ of habeas corpus must be dismissed as unexhausted, of course, if there exists a meaningful and presently available state court remedy. See 28 U.S.C. Sec. 2254(b). The respondents contend that pursuant to the Illinois post-conviction statute, Ill.Rev.Stat. ch. 38, Sec. 122-1, the petitioner may take his constitutional claim to a state court for a ruling on the merits.

As we have noted on several occasions, however, post-conviction relief is not available in Illinois with respect to claims made on direct appeal. See Perry v. Fairman, 702 F.2d 119, 121 (7th Cir.1983); People v. James, 46 Ill.2d 71, 263 N.E.2d 5 (1970). In this case the petitioner argued before the Appellate Court of Illinois that a conflict of...