U.S. v. Novak
| Decision Date | 14 May 1990 |
| Docket Number | D,No. 671,671 |
| Parties | UNITED STATES of America, Respondent-Appellee, v. John NOVAK, Petitioner-Appellant. ocket 89-1437. |
| Court | U.S. Court of Appeals — Second Circuit |
George J. Terwilliger, III, U.S. Atty., D. Vt., Burlington, Vt. (David V. Kirby, Chief, Crim. Div., R. Jeffrey Behm, Asst. U.S. Atty., Burlington, Vt., of counsel), for respondent-appellee.
Joseph K. Garneau, West Hempstead, N.Y., for petitioner-appellant.
Before OAKES, Chief Judge, and KEARSE, and FLETCHER, * Circuit Judges.
Petitioner John Novak appeals from a judgment of the United States District Court for the District of Vermont, James S. Holden, Judge, dismissing his petition pursuant to 28 U.S.C. Sec. 2255 (1982) for vacation of his conviction in that court of narcotics offenses on the ground that his Sixth Amendment right to the effective assistance of counsel was violated because his now-disbarred trial attorney, Joel Barnet Steinberg, had obtained admission to the New York State Bar through fraudulent means. The district court dismissed the petition, ruling that Novak's Sixth Amendment right was not violated because Steinberg had in fact been admitted as an attorney and because, in any event, Novak had also been represented in the criminal proceeding by local counsel. For the reasons below, we conclude that representation by Steinberg was per se insufficient to satisfy the Sixth Amendment requirement, and we reverse and remand for vacation of the judgment of conviction.
In 1981-82, Novak was prosecuted in the district court in Vermont on a six-count indictment charging him with, inter alia, importation of marijuana, possession with intent to distribute marijuana, and conspiracy to violate the federal narcotics laws. He was found guilty on all counts and was sentenced to five years' imprisonment, to be followed by a five-year term of special parole, and assessed a total of $60,000 in fines. His conviction was affirmed by this Court in United States v. Ames, 729 F.2d 1440 (2d Cir.1983). As discussed below, he was represented by Steinberg at trial.
In anticipation of his arrest and indictment on the above charges, Novak, on the recommendation of his wife's employer, retained New York-based Joel Steinberg as his attorney. When Novak was arraigned, Norman Blais, a member of the Vermont bar and the Vermont district court, moved for Steinberg's admission to the district court in Vermont pursuant to the local court rules governing the temporary admission of nonresident attorneys. Those rules allowed attorneys admitted to the bar of, inter alia, any district court within the Second Circuit, "whose professional character is good," to practice in the district court in Vermont upon motion of an attorney of the court and upon taking the proper oath. Steinberg represented that he had been duly admitted to, inter alia, the New York Court of Appeals, the federal district courts for the Southern and Eastern Districts of New York, the Court of Appeals for the Second Circuit, and the Supreme Court of the United States. The motion for his temporary admission to the district court in Vermont to represent Novak was granted.
Steinberg represented Novak at his arraignment. Both Blais and Steinberg appeared on Novak's behalf at several pretrial hearings and at the jury selection. After the jury was empaneled, Blais was excused from daily attendance. Steinberg represented Novak at trial.
Following the verdicts, but before sentencing, Blais and Steinberg filed motions At sentencing, Novak was represented only by Blais. Blais was appointed under the Criminal Justice Act to represent Novak on his appeal to this Court. Thereafter, Novak, represented by Blais, filed his first Sec. 2255 petition, claiming a denial of effective assistance of counsel on the ground that Steinberg should have initiated plea negotiations after the trial evidence against Novak appeared to be strong. That petition was denied in an Opinion and Order dated July 7, 1983 ("July 1983 Opinion").
for a judgment of acquittal and a new trial. Shortly thereafter, Novak sought the removal of Blais and Steinberg as his attorneys. He later rescinded this request and continued to be represented by both attorneys on the posttrial motions. These motions marked Steinberg's final actions on behalf of Novak.
In general, a person gains admission to practice law in the State of New York by graduating from law school, passing a bar examination, and withstanding scrutiny for moral fitness. In 1970, the New York Board of Law Examiners was permitted to grant a certificate allowing an applicant who had graduated from an approved law school to dispense with the bar examination if,
after January 1, 1963, and after completing in an approved law school two-thirds of the requirements for graduation and for a first degree in law, his course of law school study was interrupted by active service in the armed forces for not less than twelve months.
Steinberg was admitted to the practice of law in New York in July 1970. He did not take the bar examination but instead obtained a certificate of dispensation, apparently on the representation that his law school education had been interrupted by his service in the armed forces. In fact, however, he did not meet all of the pertinent criteria. Steinberg attended New York University School of Law ("NYUSL") for two years, leaving in May 1964 without graduating. He did not enter the armed forces until April 1965. And when Steinberg left NYUSL in May 1964, he did so because he was " 'dropped for poor scholarship.' " In re Steinberg, 137 A.D.2d 110, 112, 528 N.Y.S.2d 375, 376 (1st Dep't) (per curiam) (quoting certificate of NYUSL Acting Associate Dean), app. denied, 72 N.Y.2d 807, 533 N.Y.S.2d 56, 529 N.E.2d 424 (1988). Thus, his studies were not interrupted by his military service.
Even if military service had caused the 1964 interruption, Steinberg did not come within the above rule. When he left law school in 1964, though he had enrolled in 57 of the 80 course hours required for graduation, he had failed 6 of those hours and received unsatisfactory grades in an additional 22 hours. He was allowed to return to law school in 1968 on the condition that he repeat those 28 hours of courses. Thus, when his law school career was interrupted, he had not successfully completed 2/3 of his course work. Upon his representations, however, Steinberg was admitted to practice without being required to take the bar examination.
In November 1987, following Steinberg's arrest on highly publicized charges of child abuse, a proceeding was commenced in the New York Supreme Court, Appellate Division, seeking Steinberg's disbarment pursuant to N.Y.Jud.Law Sec. 90(2) (McKinney 1983) on account of the misrepresentations made in connection with his application for admission to practice. In that proceeding, Steinberg did not deny the allegation that he had been ineligible for waiver of the bar examination requirement, but he opposed disbarment on the ground, inter alia, that the proceeding had been instituted only because he had been charged with a notorious crime.
In April 1989, Novak filed his present Sec. 2255 petition, again contending that his right to the effective assistance of counsel had been violated. This petition alleged that Novak had retained Steinberg on the strength of Steinberg's representation that he was a duly licensed attorney, and that Steinberg "was never in fact an 'attorney' " because he had obtained admission to the bar under false pretenses.
In an Opinion and Order dated August 22, 1989 ("August 1989 Opinion"), the district court dismissed the petition on the ground that Steinberg had in fact "been admitted and was enrolled as an attorney in New York." Id. at 6. The court also stated that Novak was "represented throughout by competent associate counsel." Id. at 7. The court concluded that
[a]ny adverse presumption that may develop from the undiscovered deception of Steinberg in the procurement of his admission to practice in the courts of New York in 1970 is relieved by the proposition that the courts "may assume with confidence that most counsel, whether retained or appointed will protect the rights of the accused."
Id. at 8-9 (quoting Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980)). This appeal followed.
On appeal, Novak contends that his conviction should be vacated on the authority of Solina v. United States, 709 F.2d 160 (2d Cir.1983). Though Solina differs somewhat from the present case, in that Solina was represented by a person who had never been licensed to practice, we agree that, under Solina 's analysis, Steinberg's representation of Novak could not...
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