The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
On January 18, 1982, Ronald Tonaldi ("Tonaldi") filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
seeking review in this Court of his state conviction
for possession of more than 30 grams of cocaine. The conviction
was affirmed by the Appellate Court of Illinois in People v.
Tonaldi, 98 Ill.App.3d 528, 54 Ill. Dec. 297, 424 N.E.2d 1200
(1st Dist. 1981), and the Illinois Supreme Court has denied
leave to appeal.*fn1 Presently before the Court are the
parties' cross-motions for summary judgment on Tonaldi's
underlying claim that he was denied the effective assistance of
counsel when his lawyer jointly represented several
co-defendants at trial.*fn2 The Court has held an evidentiary
hearing to determine whether Tonaldi's purported waiver of his
right to a separate attorney was knowing, intelligent and
voluntary. Having carefully considered the evidence adduced at
that hearing and the evidence contained in the record, the
Court will grant Tonaldi's motion for summary judgment and deny
The parties do not dispute that the trial testimony of one
of petitioner's co-defendants, Carol Masorlian ("Masorlian"),
also represented by Tonaldi's attorney, was in conflict with
Tonaldi's defense. Specifically, Masorlian testified that she
saw a bag, later discovered to contain cocaine, on the floor
of Tonaldi's car when he picked her up at her home on April
12, 1979. This testimony, exculpatory as to Masorlian but
inculpatory as to Tonaldi, was relied upon by the trial judge
when he found Tonaldi guilty of constructively possessing the
cocaine discovered in the bag.*fn3 In light of this
inculpatory testimony from his co-defendant, Tonaldi now
claims that his lawyer's joint representation of Miss
Masorlian and himself violated his sixth amendment right to
effective assistance of counsel.
As a general matter, factual determinations made by state
trial and appellate courts enjoy a "presumption of
correctness" in the context of a federal petition for a writ
of habeas corpus. 28 U.S.C. § 2254(d) (1976). Sumner v. Mata,
449 U.S. 539, 550, 101 S.Ct. 764, 771, 66 L.Ed.2d 722 (1981).
That presumption does not, however, attach to state court
determinations involving mixed questions of fact and law or to
determinations of law as applied to facts found by the state
court. Cuyler v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct.
1708, 1714-15, 64 L.Ed.2d 333 (1980); Townsend v. Sain,
372 U.S. 293, 309 n. 6, 83 S.Ct. 745, 755 n. 6, 9 L.Ed.2d 770 (1963);
United States ex rel. Veal v. Wolff, 529 F. Supp. 713, 723-24
(N.D.Ill. 1981). The Appellate Court's conclusion in this case
regarding the knowing and intelligent character of Tonaldi's
acquiescence in his counsel's joint representation falls within
this latter category. That conclusion is not the kind of
"basic, primary or historical" fact due a presumption of
correctness in this context. Cuyler, supra, 446 U.S. at 342,
100 S.Ct. at 1714. Accordingly, pursuant to our earlier opinion
on Tonaldi's petition, this Court conducted an evidentiary
hearing*fn5 to determine whether petitioner's response to the
trial court's admonishment constituted a knowing and
intelligent waiver of his right to separate counsel.
Tonaldi testified at the hearing that, despite the trial
court's warning, he acquiesced in the joint representation in
reliance on his attorney's advice.*fn6 Tonaldi also testified
that, at the time he was admonished by the trial court, he
"couldn't imagine" any harmful testimony coming from his
co-defendants and that he did not understand how any
conflicting testimony from those defendants would impair his
As discussed more fully in our prior opinion, the sixth
amendment right to effective assistance of counsel necessarily
encompasses the right to representation by an attorney who
does not owe conflicting duties to other defendants.
Holloway v. Arkansas, 435 U.S. 475, 484, 98 S.Ct. 1173, 1178,
55 L.Ed.2d 426 (1978). To be effective, the waiver of that
right must be knowing and intelligent. Id. at 483 n. 5, 98 S.Ct.
at 1178 n. 5; Glasser v. United States, 315 U.S. 60, 70, 62
S.Ct. 457, 465, 86 L.Ed. 680 (1942). The fundamental importance
of a defendant's sixth amendment rights dictates that the Court
indulge in all reasonable presumptions against a waiver of
rights. United States v. Davis, 604 F.2d 474, 482 (7th Cir.
1979); Day v. United States, 357 F.2d 907, 909 (7th Cir. 1966).
Accordingly, Tonaldi's inability to appreciate the consequences
of his attorney's joint representation, if true, vitiates the
constitutional effectiveness of his purported waiver of the
right to separate counsel. Tonaldi, supra, 537 F. Supp. at 1232.
See Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463,
1468, 25 L.Ed.2d 747 (1970).
Respondents attempt to demonstrate on two levels that
Tonaldi understood the nature and significance of the right to
separate counsel he purportedly waived before the trial judge.
First, they point out that Tonaldi was present at the
preliminary hearing during which his co-defendant Masorlian
testified to the same effect as she testified at trial.*fn7
Respondents argue, therefore, that Tonaldi had notice of the
existence of a conflict between co-defendants before he was
asked to waive his right to separate counsel. According to
this theory, Tonaldi should have had an independent basis from
which to evaluate the worth of his counsel's advice and the
significance of the trial court's admonishment.
Respondents' thesis does not establish the knowing and
intelligent nature of Tonaldi's purported waiver. That
Masorlian testified at the preliminary hearing to the same
effect as she testified at trial did not put Tonaldi on notice
of the incriminating implication attributed to that testimony
by the trial judge. On its face, Masorlian's former testimony
does not appear to incriminate Tonaldi. Even Tonaldi's
counsel, who participated in the preliminary hearing, failed
to perceive the existence of a conflict of interest between
co-defendants as the result of Masorlian's testimony.*fn8 We
can hardly hold that Tonaldi understood the legal implications
of Masorlian's former testimony when the record makes clear
that his own attorney failed to appreciate those implications.
Moreover, even if petitioner recognized a conflict between
Masorlian's former testimony and his own defense, there is no
evidence to rebut Tonaldi's testimony that, at the time of
trial, he failed to understand how such conflicting testimony
would impair his lawyer's effectiveness.*fn9
Respondents also attempt to establish the knowing and
intelligent nature of Tonaldi's purported waiver by offering
general evidence of his level of competence in business
affairs and his experience in the criminal justice system.
Tonaldi owns two commercial properties in the Chicago area and
a private residence in Wainesville, Illinois. He has obtained
loans totalling over $150,000 for the acquisition, maintenance
and rehabilitation of these properties. Tonaldi's criminal
record reflects that he pleaded guilty to a charge of criminal
trespass to a vehicle in 1963 and was sentenced to one year
Taken together, these facts do not establish that Tonaldi
knowingly and intelligently waived his right to separate
counsel. As indicated in our prior opinion, the rights
endangered by an attorney's joint representation of criminal
defendants are subtle, yet fundamental. A defendant's relative
success in business affairs or his non-trial exposure to the
criminal justice system almost two decades ago does not
evidence his ability to appreciate the special problems raised
by joint representation.
Tonaldi's general level of competence and exposure to some
of the harsh realities of life might well have been sufficient
to establish a knowing and intelligent waiver if the
petitioner had been warned, either by his own attorney or the
trial court, of the specific nature of the conflict and the
implications of that conflict on his attorney's effectiveness.
This record, however, does not reflect such a warning.
Although the trial court attempted to explain to Tonaldi 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.*fn11 Cf. United States v. Agosto, 528 F. Supp. 1300,
1306-10 (D.Minn. 1981). United States v. Garafola,
428 F. Supp. 620, 623-24 (D.N.J. 1977), aff'd sub nom, United States
v. Dolan, 570 F.2d 1177 (3d Cir. 1978). The abstract and
hypothetical admonishment delivered to Tonaldi in this case was
simply insufficient to inform him of the fundamental nature of
the right he was purporting to waive.
As the Supreme Court made clear in Glasser, supra, "[t]he
right to have the assistance of counsel is too fundamental and
absolute to allow courts to indulge in nice calculations as to
the amount of prejudice arising from its denial." 315 U.S. at
76, 62 S.Ct. at 467. "[U]nconstitutional multiple
representation is never harmless error." Cuyler, supra, 446
U.S. at 349-50, 100 S.Ct. at 1719. For purposes of this
petition, therefore, our inquiry ends upon finding that Tonaldi
was denied his right to effective ...