*1 626 circum- precise but statements say that no answer (1991). is It namely, Rule of this stances the witness may cross-examine case— prosecutor on whom a witness 804(b)(1) statement stage preliminary At a grand jury.

in the conferred previously has might Government prosecutor investigation, the an I jury. Because grand immunity at the testimony false. use is that unaware be panel intends that the witness, pros- be confident cannot if disbelieves Even he limited, and because thus ruling to be for effective its might lack basis ecutor justification departs without ruling jeopardize might cross-examination and creates a this Circuit law of by cross-examination from the investigation ongoing conflict, respectfully I identity of intercircuit existence needless reveals that this not to rehear decision from the dissent sources. confidential in banc. case apprehends The Government it from to disable apply opinion will panel’s unavailability in

claiming a witness’s the Government contexts, as where such against to be claimed a statement offers 804(b)(3),see United Rule interest under (2d Williams, F.2d 98-99 v. States — U.S. -, S.Ct. denied, Cir.), cert. (1991); United States 116 L.Ed.2d BELLAMY, Petitioner-Appellant, Perry Cir.1978) (2d 92, 95-97 F.2d Lang, 589 v. given to witness (use immunity need not be v. Rule purposes “unavailable” COGDELL, Brooklyn Warden William missing witness 804(b)(3)), or where Detention, Respondent- House of ground that objected to charge is Appellee. to both equally unavailable is

the witness 438, Docket 91-2327. No. Simmons, 663 F.2d sides, v. States United usefully has panel (D.C.Cir.1979). The Appeals, States Court United explic opinion to original make its amended Circuit. Second its considering whether is not it it ap unavailability Argued Oct. 1991. ruling on witness novel 804(b)(1). of Rule the context beyond plies Dec. Decided Salerno, 952 F.2d 623 States United is entitled Cir.1991). But the Government ruling that apprehensive

to be prosecution “available” witness can be conferred immunity because use applied to determine might future in the 804(b)(1). beyond “availability” Rule a new embarks this Circuit Before availability relates witness course to confer opportunity the Government’s fraught seri- with immunity, a course use grand conduct of for the implications ous re- matter should investigations, consideration the careful ceive my majority regret that banc court. ruling to not consider colleagues do Supreme If the rehearing in banc. merit stand, ruling to panel’s permits the Court ruling will hope least may one 804(b)(1) to Rule merely be limited *2 he denied a he added a claim that opportunity litigate his at- and fair

full competence in his state-court hear- torney’s that on the unusual facts ing. We hold precedents, this and under before us our denial of of those rare instances where one presumed as a effective counsel must be law, any showing of without matter Therefore, reverse the deni- prejudice. corpus and remand al of the writ of habeas instructions. with

Background 1987, Perry Bellamy January

In went Court, Queens Supreme York trial New York State County, for the murder New year Rooney. Brian One Parole Officer earlier, Bellamy’s mother had retained Mr. At that Sidney her son. J. Guran defend for over a had been retired evident, and, was ill. year as later became approached, trial date Guran’s As the September declined. health Cohen, M.D., doctor, undertook P. Richard neurological of a extensive evaluation an suffering, problem from polyneuropathy as known a condition by peripheral motor weak- “characterized and, ness, feet on his unsteadiness In an times, inability to an concentrate.” Ciaffa, Mineóla, (Meyer, N.Y. A. Michael development, on Octo- counsel), apparently unrelated Klein, P.C., of English & Suozzi to the De- the chief counsel ber petitioner-appellant. for for the Disciplinary Committee partmental Roth, Gardens, N.Y., Asst. Kew Seymour Committee) (the First Judicial (Richard A. Queens County Atty. for Dist. misconduct professional filed Queens County, Brown, Atty. for Dist. against Gu- of funds involving conversion counsel), respondent-appellee. for later, the Commit- than a month Less ran. attorney, Guran’s received a letter from tee OAKES, Judge, Chief Before Baltimore, stating that Guran L. Richard ALTIMARI, Circuit FEINBERG for capable preparing mentally “is not Judges. requesting charges and hearing” on the hearing on that ba- of the FEINBERG, Judge: adjournment Circuit telephone in his added Baltimore sis. Bellamy appeals from a Perry Petitioner “a perceived he with conversations States of the United and order decision amount of disorientation.” certain District Court for Eastern District letter was J., Baltimore’s York, denying his Enclosed with Raggi, Reena New Cohen, physician, Guran’s Dr. corpus and from of habeas letter application for writ 1986, indicating that respondent William dated October judgment to granting cur- Guran’s and treatment Brooklyn House of evaluation Cogdell, Warden “at least take writ, problem medical application for the rent In his Detention. “Mr. Guran to six months” and assistance three Bellamy claimed ineffective during that effectively incapacitated process. To of due will counsel and denial trial sup- Bellamy during making the trial after these statements in ed time.” Based on request adjourn- attempts unsuccessful to have another at- port for an of Guran’s ment, 21,1986 torney him. The commenced assist on November the Committee Division, jury selection on 1987 and petitioned Appellate First De- with suspen- with a verdict of murder partment, indefinite ended *3 sion, simultaneously degree possession second and criminal of a moved for or- 24, weapon January on “suspending respondent from der [Guran] law, immediately of effective Approximately months after the two _” added). return (emphasis The date verdict, 26, 1987, Appellate March on 23, 1986. the motion was December Division, Department, First issued unani- protect public,” in this motion an affida- mous order “to sus- Guran answered attorney pending indefinitely in as an vit sworn to on December that, allega- ground had he admitted that the factual as Guran himself conceded, is, dispute.” in “he at this petition implicitly tions of the “are not practicing allegations physical incapable These included law.” At a sentenc- 1987, ing proceeding April Bellamy in incapacity. mental The affidavit stated after any suspension, work” had learned of Bella- that he had “not taken new my protested rights “being birthday since his 70th in 1984 other than that his were _ case, Bellamy’s which was set for trial violated Mr. Guran was not a fit early following pointed lawyer represent proper- in the month. He to handle and me delayed, ly of his medical health and out could be because other Bellamy “[ujnder he was familiar with that Bella- reasons.” added Amendment, my’s already paid right mother had him and that Fourteenth I have a “strictly I Bellamy only right trusts me.” For counsel and have a to a fair trial _ reasons, requested these that he not I did not have that.” He was [b]ut “I, course, suspended subsequently years and stated that sentenced to 15 to life attempt try myself. prison will not this case in for the murder conviction and five competent attorney, years prison I in weap- will have but to 15 for the criminal possession must be to assist him.” He also conviction. any that he

indicated take counsel, Represented by pro bono Bella- cases. 1987, my pursuant in moved June to CPL 440, subsequently setting wrote to the trial for an order aside his convic- § J., judge, Gallagher, advising grounds John T. him tion on that he was not afford- generally disciplinary charges ed assistance of effective counsel and was 30, against explanation process his ac- July his denied due of law. On charged, request in the matters Gallagher tions his Justice denied the motion adjournment However, hearing summarily argument. for an of the on those after oral charges, Bellamy’s request motion Committee’s to sus- for reconsidera- tion, pend immediately judge him and his intentions to vacated his denial and set help attorney enlist the of another at Bella- the matter hearing. down for a Before the my’s held, trial. hearing Gallagher Justice denied Bellamy’s motion compel Guran’s testi- undisputed It is that at the time of mony hearing. at the Bellamy nothing knew about the against attorney, attorney’s his his The hearing place separate admis- took on three incapacity 1988; testified, attorney’s repre- days sion of or his in several witnesses Thereafter, attempt try including sentation that he would not Guran’s doctor. Bellamy the case alone. has sworn in an memorandum decision dated affidavit that he Gallagher would not have allowed Justice denied Guran to him at trial had he motion to vacate Justice his conviction. above, Gallagher known facts stated and that was “men- concluded that Guran disputed. undisput- tally physically capable try contention is not Also the de- Guran, alone, represent- competent ed is the fact that fendant’s case and did so Strickland, U.S. it had unreliable. also held that judge The manner.” In a small class at 2064. inquire 104 S.Ct. necessary at trial either to not been however, cases, apply do not Strick- Bellamy “was aware as to whether of ineffective two-pronged test as- grounds land’s facing suspension on presume there has sistance but instead require Guran to obtain or to incapacity” Supreme prejudice. Court been the case. Justice trying assistance it spoke of such cases when Bellamy Strickland finally Gallagher concluded Amend- certain Sixth asserted “[i]n denied effective was not contexts, presumed. prejudice is Ac- ment hearing. suppression during the denial of the assistance tual or constructive ap- sought permission to duly legally presumed altogether is of counsel motion; in denial of CPL peal the prejudice.” 466 U.S. at to result *4 denied Appellate Division May at 104 S.Ct. appeal. leave to Strickland, and since Both before we peti- Bellamy filed In December rep that a defendant was have held where for writ District a in the Eastern tion who, by attorney resented an unbeknown district in corpus. He raised habeas defendant, prac not licensed to to the was in presented earlier issues same court the law, defendant has been tice denied motion, and 440 in the CPL state court In right to counsel. the constitutional Sali fair had a full and he had not added that (2d States, 709 F.2d 160 Cir. na v. United because develop his claims opportunity to 1983), thorough opinion by in a typically to Gallagher had denied his motion Justice Judge Friendly, we so held even where the testimony at the earlier compel Guran’s law, in representative was trained where hearing. apparently representative furnished memoranda, legal After submission competent representation and reasonably petition denied court district against the defendant where evidence evidentiary an June 1991 without merits in overwhelming that he would almost sowas thorough opin and hearing. In a reasoned regardless certainly have been convicted Bellamy had ion, Raggi ruled that Judge held that a represented him. We who had remedies, court his state exhausted right to Sixth Amendment defendant’s as had not been denied effective Bellamy where, without de counsel is violated counsel, per rule or under sistance representative knowledge, “his fendant’s in set forth Strickland under the standard any practice to lav/ was not authorized S.Ct. Washington, 466 U.S. 104 v. state, lack of authorization and the such (1984), that the 674 80 L.Ed.2d its to seek it or from stemmed from failure to take action judge’s trial failure state ability, going legal to for a reason denial pending learning inquiry after make examination, pass a bar to such as failure deprive character_” suspend did not motion 709 F.2d or want of moral fol process. This appeal of due “[ajpplica concluded at 167. We there lowed. appears to us to se rule tion of a by teachings in a like this required case Discussion _” Supreme Court at out, directly point turn consideration careful how 168. We were We jus simply merits, ever, was intimate that since the district court that we did not holding have in the licensed status any that state remedies technical tified in defect exhausted, appellee representative Warden of a been defendant’s contrary. Amend to the of the Sixth makes no claim amount to violation gave several ment, we at F.2d circumstances, when most Under examples. of inef defendant raises a claim criminal v. later, counsel, years in United States Seven assistance of defendant fective Cir.1990), (2d Novak, we repre both unreasonable must demonstrate subject. thoroughly canvassed again attorney and by the sufficient sentation (Joel B. case Stein- attorney in that the result of the prejudice to render concession, is, berg), although implicit law “he at this licensed during had fraudu- incapable practicing the defendant’s law.” We think it lently opinion his license. promise obtained is clear that but for the Kearse, reaffirmed hold- by Judge Appellate help to secure the of a Division representa- ing in and held that the Solina competent attorney promise that Guran —a at trial constituted se ineffective tion keep not that he did did or could counsel, prejudice lack of not- assistance convey judge to the trial sus- —Guran’s withstanding. reasoning again Our pension certainly taken would almost have “mere technical defects need not re- place prior Bellamy’s only trial. It was 'per se Sixth Amendment violations” sult that was not fulfilled that “serious substantive defects” do. but attorney in this case remained pointed F.2d at 888. We out that in licensed for the duration of the trial. there had been “a demonstrated Solina applied We have also se rule inability to meet the criteria of threshold Cancilla, 725 F.2d 867 United States (as competence in the law Solina’s coun- Cir.1984). In that ” examination) failure of the bar sel’s .... had, defendant, par- issue unknown to the Similarly, Id. defect in “[t]he ticipated in criminal conduct related to the Steinberg’s simply licensure was not tech- conduct for which defendant convicted. *5 nical but was instead serious and substan- Despite proof prejudice the lack of of to the At tive. the time of his admission to the defendant, partic- we held there that such bar, Steinberg had not met the State’s nor- ipation created a conflict of interest requirements mal substantive for admis- right denied defendant his to counsel at sion to the New York State Bar. His com- agree respondent trial. We with Warden petence practice law had never been present that the ease does not raise a sim- tested, bypass and he was not entitled to However, problem. ilar conflict of interest testing.” such 903 F.2d at 890. se denial of effective assistance does us, attorney In the case before whose only not arise where there a conflict of is issue, Mr. assistance at has been attorney interest between an and client. suspended indefinitely practice from the contrary, presume On the the reason we Disciplinary proceedings law. started prejudice in such instances is that the con- hearing October on those may prevent attorney vigor- flict from charges was noticed for December client, ously representing the for fear of November, attorney 1986. In sent being Cancilla, discovered. 725 F.2d at Departmental Disciplinary a letter to the perhaps 870. We have no less—and Committee, stating that Guran was “not inadequate represen- more—reason to fear mentally capable preparing for the hear- is, attorney tation where the as Guran has ing” requesting adjournment be, mentally incapable conceded himself to quickly that basis. The Committee moved preparing simple disciplinary for a hear- immediately suspending for an order Gu- ing if than we would be there were a practicing ran from law and noticed a re- conflict of interest. prior turn date to the date when The Warden claims that this case resem- begin. response In to that mo- Rodriguez, bles v. 848 F.2d Waterhouse tion, only in an affidavit sworn to about (2d Cir.1988), in which a criminal de- three weeks before the scheduled com- attorney undergoing disciplinary fense was trial, mencement of the Guran admitted proceedings representing client while allegations incapacity factual hearing to determine whether his client’s dispute not in Appel- were and swore to the voluntary. confession was held that late Division that he We would “of course” not pendency disciplinary try Bellamy’s proceed- case alone. Guran substan- ings, though tially repeated promise they even ended in disbar- to Justice ment, Gallagher trigger presump- in a did not alone letter. When Guran was finally suspended prejudice. analogy after tion of The between ground suspension by for was that his own and the case is flawed. Waterhouse de- that the client has been facts unusual disbarred Waterhouse, In assistance of counsel and for the effective funds nied client misappropriating for accepting by the Constitu- guaranteed a defendant clients failing to of these 378. Neither F.2d at tion. fees. 848 question into called of disbarment

bases that there was have found Because we law practice competence attorney’s counsel, ineffective assistance per se Water- representing he was at the time raised reach the other claims do of his solely reflections They were house. of the district judgment The appellant. to re- ethical entitlement honesty and his case is remanded is reversed and the court As we stated the bar. member of main a corpus grant of the writ habeas for underlying his disbar- there, “the appropriate conditions. under to his unrelated ment were It at 383. ....” of Waterhouse ALTIMARI, Judge, dissenting: Circuit pertinent not considered was therefore the con- representation at defendant’s of this majority finds that the facts attorney was dis- hearing that fession violation of the constitute a ease barred. This right to counsel. Amendment Sixth such se violations has found States Circuit also relies on United The Warden where, Cir.1990). un (2d limited circumstances: only two Aiello, F.2d 528 v. defendant, his or her counsel attorney representing known investigation (1) duly li was, under at the time of trial defendant criminal for Strike Force Organized Crime of a failure law because by the censed York before requirements District New the Eastern meet the substantive ever de- against the during proceedings law, see United States practice of Waterhouse, at- Cir.1990) But as “[the fendant. *6 totally un- were crimes purported torney’s] fraudulently procured license (counsel for which the ... crimes [the related to a was entitled misrepresenting that he 900 F.2d at being tried.” was examination); defendant] from bar dispensation the that similarly no evidence There was 160, States, F.2d 167 709 v. United Solina practice incompetent to attorney was the Cir.1983) (counsel repeatedly failed (2d law. exam) (2) implicated in the defen bar v. Can crimes. States See United Water- dant’s in contrast to both In our Cir.1984). (2d Even cilla, 870 led to Aiello, the defect house occasions, applied we have serious sub- these was “a suspension Guran’s United flaw, a demonstrated enthusiam.” ... rule “without se stantive [such as] Aiello, threshold criteria meet the inability States F.2d Cir.1990). law.” competence solely suspended been Had Guran at 888. fall simply does not case brought originally financial for the underlying rationale of facts or within the him, authority of Water- against was cases. Guran category of narrow upheld Bella- might well have we house I of trial at the time duly licensed attorney is But when my’s conviction. attempt majority’s to the subscribe cannot for a preparing incapable of admittedly him if he were reality as and treat recast or two before held a week hearing to be allegation that no Similarly, there is not. incapacity is trial, that when criminal in the misdeeds involved was Guran short- practice suspension from ground for addition, of this the facts Bellamy. suspension trial, when that ly after that developed, demonstrate case, fully prior occurred certainly almost have completely trial, was time of an unfulfilled trial but for criminal Bellamy. defend mentally competent to coun- by competent to be assisted promise con- implicitly Moreover, majority attor- and when during the sel that establish Bellamy this, cannot that cedes ignorant of all ney’s client un- ineffective on such to hold obligated by our cases feel conversations with Guran in which he der the standard set forth Strickland v. 104 S.Ct. “a certain amount of Washington, U.S. found disorientation” (1984). Indeed, letter, 29, 1986, 80 L.Ed.2d 674 and on a dated October called nu- physician, the record reflects that Guran Dr. P. from Guran’s Richard Co- (all prepared merous well to tes- witnesses hen. cogent tify) vigorous and mounted Cohen, According to Dr. Guran suffered defense, highlighted by the that de- fact ailments, variety physiological from spite overwhelming against evidence including recently diagnosed polyneuro- Bellamy, days for five deliberated pathy, by periph- a condition “characterized convicting him. before eral motor weakness unsteadiness” [and] provided Because consti- treating feet. Dr. on one’s Cohen had been tutionally representation, and effective be- preceding for that condition for the majority’s application cause the time, During six weeks. as a result of rule this case is an facts of “physical and emotional stress” associ- departure prior from deci- unwarranted recently ated with Guran’s discovered ill- Court, respectfully sions of this dissent. medications, ness and of certain Guran had “virtually incapacitated.” been Dr. Cohen indicates, majority underlying As the condition, noted that as a also result petitioner action in this case stemmed from inability Guran “at times” had “an to con- Perry Bellamy’s participation in the brutal prognosis centrate.” The for Guran’s new- murder of Parole Brian State Officer Roo- ly condition discovered was uncertain at Nichols, ney. Lorenzo “Fat a notori- Cat” “anticipated” but Dr. Cohen Queens dealer, drug Rooney’s ous ordered polyneuro- evaluation and treatment of the jail murder from Nichols’ cell. This “hit” pathy months, would take three to six revenge killing Rooney’s role in “effectively incapaci- Guran would be placing Nichols behind bars. Over one during tated that time.” year prior the start Rooney’s 1987 for his role in mur- communications, Based on these and on der, Bellamy’s Attorney contacted mother underlying charges, Disciplinary Sidney represent Bellamy. Guran to Al- petitioned Committee the First though living Florida, he was retired and on November 1986 for Guran’s immedi- represented Bellamy Guran had several ate, indefinite, suspension from the *7 past agreed times in the and to response, of law. Guran submitted an again. him At that Guran was seven- Department affidavit to the First on De-

ty-one years old and had been successful 12, 1986, cember in which he admitted his fifty years. member of the for almost bar problems, suspen- medical but stated that a sion, with stigma, its attendant was unnec- preceding during In the months Bel- essary. According to he had been lamy’s subject Guran was the of disci- 1984, essentially retired having since taken plinary proceedings Depart- in the First on except no new work for case. 1986, Departmental ment. In October the prior Because of his representation of Bel- Disciplinary alleged that Guran Committee lamy and familiarity because of his with had converted client funds in 1976 and had case, the requested per- Guran that he be negligently handled a real estate transac- represent Bellamy, stating: mitted to in tion 1977. The Committee scheduled a hearing 11, I, course, for December attempt try will not to this 1986. by myself. competent On November Guran’s at- case I will have a Baltimore, Jr., torney, requested attorney, Richard L. I but must be to assist hearing adjourned because Bellamy only be him. relies on and trusts compile more time was needed to doc- me paid and his mother has me. It hearing complete uments for the and because Guran would be a disservice to this mentally capable prepar- jeopardize right was “not defendant and his to a [then] ing hearing.” permitted for the Baltimore if I based his fair trial were not to assist capacity phone evaluation of Guran’s in his trial and defense. 1983), judgment his of convic- to vacate ney nor the Disciplinary Committee

Neither based, things, among on Guran’s other af- tion Guran’s to responded First to serve as counsel alleged incapacity fidavit. on those subsequent suspension his 1986, ad- 11, also Guran December On Bellamy requested Alternatively, grounds. Gallagher, in T. John judge, the trial vised to determine Gu- hearing held submission, pending about parte an ex Gallagher Judge competency. denied ran’s motion to charges and sus- disciplinary request for and his Bellamy’s 440 motion § recovery from health pending pend him part that: observing pertinent hearing, in things, in- Among problems. trying job He did an excellent Gallagher: Judge formed any mistakes that I know case. don’t Dr. had a remember might You case. trying he made Hospital at N.Y. ... at appointment [sic] diagnosis of Further, Appellate tentative respect time a [a with as Lou commonly known polio Division, me Mr. came to before form Needing was made. he Gehrig’s He told me that this case. he started Disease] disciplinary hear- prepare Appel- to pending time matter before [for had a 11, 1986], for ing December the First scheduled This was with Division. late discouraged, I miserable, feeling Depart- the First Department. [and] I called my and, through lawyer, home returned that Mr. I told them ment and statement my medical copy sent he had a matter my court was they Immediately Committee. appro- it was I asked try here and if my recov- me suspend pending moved to permit try him priate me ery. ... per- it me that was they told have secured better and and that’s feeling me to do that I am missible for Esq. Skeledsky, D. no of Marvin so there’s [to services I did .... what exactly trial], (emphasis add- Mr. respect with Guran’s assist me with impropriety ed). the case.... how he tried conduct added). (emphasis began on Bellamy’s trial Jury selection Skeledsky 6, Because was January for reconsidera- Bellamy’s motion Upon at occupied another case with unexpectedly hearing to deter- tion, court ordered Bellamy represented time, Guran Nei- trial counsel. competency of mine the Bellamy informed At no time alone. Bellamy testified at nor ther Guran problems. health disciplinary or of Guran’s witness hearing. principal days of five On Dr. hearing Dr. Cohen. Cohen deliberations, convicted authorship testified about first degree second murder and degree second letter, at Guran’s written October weapon. possession of a criminal Depart- the First sent to that was request, to se- efforts support ment over two months March On *8 disciplinary adjournment of conviction, De- the First cure an Bellamy’s let- regard to the October hearing. hearing suspended With partment — —without essentially that: ter, testified practice of law. Dr. Cohen further from the Guran suspend to Department First chose The letter in the October opinion [H]is repre- 1986 on his December based re- incapacitated” “virtually mentally he was then inability sentation that to patient’s to his lated primarily disciplinary preparing for capable of his home frequently between travel determined First hearing. The York, he understood as New and Florida “implicitly representation, that Guran’s in the participate required to time, incapable is, he at this concedes ex- the doctor hearing. As disciplinary law.” practicing of gave him ailments plained, made him sus- poor balance sense had been sus- Having that Guran learned height- travel Frequent falls. 1987, ceptible to pur- June Bellamy moved in pended, explained that risk. ... He (McKin- ened this to N.Y.Crim.Proc.L. § suant engaged in inability noted in his letter at 167 or is the defendant’s to concentrate primarily difficulty per- Cancilla, to he related misdeeds. 725 F.2d at 870. Fur- focusing on ther, observed, ceived Guran would have as the district court if other matters he were a situation applying advanced two rationales for have keep him where it was difficult for his per “jurisdiction- se rule. The first is balance. applies al” and cases where the duly is not licensed. It stems from the (E.D.N.Y. Bellamy Cogdell, v. No. 90-4225 Supreme 28, (found Court’s decision Johnson v. 1991) Appendix, at Joint June Zerbst, 566-67). 304 U.S. 58 S.Ct. pp. Significantly, on a fol- based (1948), on 82 L.Ed. 1461 that the failure low-up examination conducted day Bellamy’s provide 1987—the trial com- a criminal with coun- defendant menced and over two months after the jurisdictional sel created “a bar to a valid letter was written —Dr. Cohen fur- Solina, October 709 F.2d at 168- conviction.” See placed ther that he had no restric- testified (discerning meaningful no distinction be- and, of law more tions Guran’s representation tween total absence importantly, unequivocally stated that Gu- counsel). by unlicensed physical problems ran’s had no effect on second rationale is based on notions of con- i.e., capacities, his mental there was noth- interest, applies in cases both flict ing wrong mentally with at the time licensed, lawyer duly is not where see evidentiary trial. After the Novak, 890; Solina, 903 F.2d at 709 F.2d again hearing, the trial court denied Bella- lawyer implicated at 164 and where the conviction, my’s motion to vacate his con- Cancilla, in the crimes of his client. See cluding that at the time [Guran] 725 F.2d at 870. Under these circum- mentally physically capable try “was stances, necessarily compro- the defense is compe- the defendant’s case and in a did so mised because the advocate “cannot be People tent manner.” Bellamy, v. Ind. wholly might hap- free from fear of what (Queens Co.Sup.Ct. No. 5382-85 Jan. pen vigorous if a defense should lead the 1989). prosecutor judge inquire or the trial into remedies, exhausting After state court background and discover his” [or her] petition filed a for a writ of habe- Solina, wrongdoing. or her own 709 F.2d corpus as in the United States District at 164. Court for Eastern District of New rationale, plain Under either it is that for York, claiming, among things, claim, prevail per a defendant to on a se he was denied effective assistance of coun- the defendant must show that his or her sel under the se rule. The district attorney had an actual substantive defect court, opinion, rejected in a well-reasoned or an licensure actual conflict of interest claim, holding that the rule did se See, e.g., that existed at the time trial. apply under the facts of this case. 890; Solina, 903 F.2d at record, thoroughly reviewing After 164; Cancilla, 870; 725 F.2d at see also court, court, agreeing district with the trial Aiello, United States 531- found that there was “no evidence ... of (2d Cir.1990) (“theoretical merely any infirmity” mental of Guran at the time speculative conflict never invokes impeded ability trial that rule”). defense, and that Guran in fact conducted vigorous agree defense. with the dis- light principles, majority’s these *9 trict court that the facts of this case are application of per the se rule to the facts of simply outside the ambit of this Court’s wholly this case is Neither unwarranted. jurisprudence. se Sixth Amendment applies. rationale for our Gu- se cases duly ran was above, licensed and admitted to the

As applied discussed we have the trial, cases, thereby precluding bar at the time of rule in a limited number when, namely defendant, application “jurisdictional” unknown to the rationale. licensed, duly pendancy disciplinary charges his or her is not The mere see Novak, 890; Solina, 903 F.2d at during Bellamy’s 709 F.2d trial is an insufficient ba- addition, representation to the Guran’s not licensed if he were Guran as sis to treat regarding the use of co- Department First Rodri- time. See Waterhouse that at approach type of “in- does not the counsel Cir.1988). 375, 383 F.2d guez, court No- fraud on the stitutional” clearly had no conflict Moreover, Guran apparently did not Although Guran vak. have trial that would time of at the interest promise to secure trial court of his tell the Bellamy’s advocacy on vigorous prevented co-counsel, made no the services behalf. pend- the his attempt to conceal from court two advances majority nonetheless The hearing possible or his sus- ing disciplinary per se applying the for grounds related To the con- for health reasons. pension case to the First, analogizing this rule. fully informed the court of his trary, Guran Novak, the license fraudulently procured including planned collabo- predicament, for Guran’s unful- that but majority finds Indeed, Attorney Skeledsky. ration with at Bella- co-counsel to have promise filled Depart- contacted the First court certainly” trial, would Guran “almost my’s whether Guran could ment to determine the trial. Sec- suspended before been have Bellamy. Under these circum- that Guran’s ond, majority contends stances, con- said Guran’s it cannot be that incapacity made of mental statements deceptive egregious approached duct postpone his efforts to with his connection Solina, or present in Novak or behavior ultimately were hearing, which disciplinary “attorneys” like Novak sus- Department to by the First relied Solina, providing precluded from “per- are in late March pend Guran some- he had vigorous defense because repre- inadequate fear haps more reason to Aiello, at 531- thing to hide. See had a conflict inter- than if he sentation” Waterhouse, 32; at ground that either I do not believe est. state- are the Slightly more troublesome to this extending per se rule justifies in Dr. Cohen’s October ments contained case. in his own letter and Guran’s statements is mis- on Novak majority’s regarding reliance his inabili- 12 affidavit December hearing, or “attorney” disciplinary for his placed. ty prepare Unlike to matter, suspen- “attorney” in for the basis of Guran’s Solina formed However, above, fully li- was, in March 1987. as discussed sion late conducting a Department duly admitted to First had been censed —without compe- hearing determine Guran’s fifty years almost at York bar New ultimately suspended Guran based Also, whereas Bellamy’s trial. time of tence— on statements months ear- made over three have certainly would attorney Novak health, then-existing lier as to his state practice with- licensed and allowed been upon which simply insufficient basis is misrepresentation, fraudulent out competent that Guran was to conclude of Guran’s First effect of trial. time Bellamy at the to defend far less is secure co-counsel promise to observed, court As the district clear. Indeed, adduced the evidence admission’ is no 'conditional testimony there of Dr. “[sjince hearing through the York, this in New court practice law Cohen examination on an Cohen—based Bellamy’s trial speculate ... would day [Guran] cannot on Guran the conducted represen- that Gu- suspended for his clearly but demonstrated been have commenced— ran had no time of the assistance at the incapacity he secure mental tation but- particularly so This is evidence counsel.” medical trial. This favorable judge’s failure re- own Department’s the trial given the First tressed mental regarding to take action to Guran’s affidavit observations spond during the physical trial. condition acuity until against him well evidence, district to treat simply justification trial. Given no There finding the trial court’s fully agreed with court if he not admitted as were mo- relevant time of Bel- that at the the time of practice law at licensed *10 certainly inquiry, ment lamy’s trial. competent spirited defense. finding import of

This factual —the wholly ignored by majority amply is —is record, supported by the is therefore not erroneous,” “clearly see 28 U.S.C. 2254(d), application precludes of the ;per se rule this case. sum, lawyer duly In licensed at when trial, disciplinary proceed- the time of when ings against lawyer have not resulted ruling,

in an adverse when medical judge evidence and observations of the trial trial, establish that at time of law- yer mentally competent defendant, application rule finding

is unwarranted. se viola- record, majority unjustifi- tion on this ably opens gates se Sixth challenges Amendment whenever a defen- perhaps dant can show before sometime after the defendant’s lawyer had an illness that the defendant contrary to the evidence—ren-

contends— dered the attorney incompetent at the time of trial.

Accordingly, I would affirm the district Bellamy’s petition court’s denial of for a corpus. writ of habeas CORPORATION, TEXTILE MONICA Plaintiff-Appellant, TANA, boilers, etc., engines, S.S. her Bar- Lines, ber West Africa Barber Steam- Lines, ship Inc., Steamship Barber (N.A.), Inc., Sekihyo Lines Line (Panama), S.A., Defendants-Appellees.

No. Docket 91-7635. Appeals, United States Court of Second Circuit. Argued Oct. 1991. Decided Dec.