Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 82 CR 440-1 --John A. Nordberg, Judge.
Before WOOD, JR., and POSNER, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
WOOD, JR., Circuit Judge.
If we accept petitioner Bridges' allegations about his retained trial counsel, J.C.,*fn1 which we do only for the purposes of this case, his trial counsel would appear to be as guilty as Bridges of wrongful acts interrelated with the cocaine charges to which Bridges pleaded guilty. That involvement created a conflict for his lawyer which Bridges argues robbed him of his Sixth Amendment right to the effective assistance of counsel.
Bridges, in November 1982, entered a plea of guilty to an indictment charging him and two codefendants*fn2 with distribution of cocaine in 1982, in violation of 21 U.S.C. § 841(a)(1), and with conspiracy to commit that offense in violation of 21 U.S.C. § 846.*fn3 Bridges' direct appeal to this court, based on a challenge to the constitutionality of the special parole term imposed and on the fact that the district judge had inadequately explained the terms of the special parole provision, was unsuccessful.*fn4 In July 1985, Bridges filed a motion to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255 on the basis that his trial counsel at his change of plea and sentencing proceedings had been disabled by what we trust is a very rare type of conflict of interest. The motion was denied and this appeal followed.
Bridges has had a remarkable record even among seasoned lawbreakers. Some of that history (fifty-nine arrests and fourteen convictions) has a bearing on this case, but it need be recounted only briefly.
The underlying charges to which Bridges pleaded guilty were based on the sale of sixteen ounces of cocaine at a price of $27,500. The transaction involved Bridges, and codefendants Bounos and Barnes, in a cocaine sale to Sergeant P.C., see footnote 1, an undercover police officer assigned to the DEA Task Force in Chicago. The arrests were made immediately upon the closing of the transaction.
Bridges pleaded not guilty, but later, in November 1982, appeared with his trial counsel, J.C., and sought to withdraw his plea of not guilty and enter a plea of guilty. The district judge thoroughly probed the usual circumstances before accepting the guilty plea as being both knowingly and voluntarily made. At the time, Bridges was thirty-five years of age with a high school education. He advised the court under oath that he had discussed the case and his possible defenses with his attorney on several occasions. Bridges assured the court that he was satisfied with his attorney. After the court explained the charges, the possible sentences, and the rights Bridges would be waiving by his guilty plea, Bridges responded that he understood it all. The court then explored the possibility of whether any threats or promises might have induced the change of plea, or whether there might be some understanding or agreement as to the sentence to be imposed. Bridges denied those possibilities. The government then summarized the evidence. Bridges conceded the government's evidentiary recital was accurate, and admitted that he had in fact committed the crimes charged.
Subsequently, at the sentencing proceedings in December 1982, his attorney J.C. urged the court to take into consideration various mitigating factors including Bridges' drug problems and his earnest desire to undergo a drug rehabilitation program, his clean record for the past six years, his minimal intermediary role in the current cocaine charges, his forthright admissions of guilt, his relative youth, and his potential for return to society as a useful member. Bridges, for himself, expressed remorse for his wrongdoing, blaming it on his personal drug problem. The government in response branded Bridges a career criminal without hope of rehabilitation. Sentence was then imposed, the judge commenting that defense counsel had "well stated" the position of his client.
The government's interest in Bridges, however, continued. In April 1985, the government by information charged Bridges with conspiring from 1979 to 1982 to violate federal narcotics laws and with using the telephone for that purpose. A charge of failure to file an income tax return for 1979 was also included. A plea agreement was reached with Bridges which provided, among other things, that Bridges cooperate with the government. Two weeks after sentence was imposed in accordance with the plea agreement Bridges filed a motion pursuant to 28 U.S.C. § 2255 seeking to vacate his 1982 conviction and sentence on the basis that he had been denied the effective assistance of counsel because his attorney at the time, J.C., was laboring under a conflict of interest.
Bridges, in support of his section 2255 motion, alleged the following unsubstantiated story about J.C. and others which must be briefly recounted here. In 1979 Bridges was arrested on charges of murdering a drug dealer and retained J.C. to represent him. Bridges began serving as a bodyguard for Sam Sarcinelli, identified by Bridges as a drug dealer. Bridges advised J.C. of his new employment and the availability his employment provided for receiving cocaine through Sarcinelli. Bridges claims that thereafter he supplied J.C. with cocaine for personal use. In return J.C. referred a cocaine customer, Irving Napue, to Bridges. Bridges later was advised by J.C. that it would take $50,000 "to take care of" his murder charge, one-half of which was to go to the judge. Bridges raised the money by additional drug transactions with his employer and his new customer. Bridges was eventually acquitted of the murder charge at a bench trial.
The defense fund drug transactions gave rise to some state drug charges which were usually based on arrests by Sergeant P.C. J.C. assured Bridges that he would not go to jail because Sergeant P.C. was "under control," and that Sergeant P.C.'s warrants would always have a saving deficiency. But, says Bridges, J.C. colluded with Sergeant P.C. to "set him up," by arranging for his arrest when it was known where he would be when in possession of drugs. J.C. would then exact a substantial fee for Bridges' defense. By 1980 Bridges claims he had discovered the setup and had discontinued letting J.C. know where he was. Nevertheless, Bridges continued to retain J.C. as his attorney in a series of theft and drug charges likely resulting from Sergeant P.C.'s continuing arrests of Bridges.
Sergeant P.C., in respect to one charge against Bridges, offered to "take care of" the case himself for drugs or money, and offered to alert Bridges in advance about new indictments for $25,000. That relationship, according to Bridges, continued to develop. Sergeant P.C. suggested that he and Bridges work together on drug deals, this time by setting others up. Bridges was to arrange the sales and Sergeant P.C. was to make the arrests, seize the drugs, and then Bridges and Sergeant P.C. would split the profits. Sergeant P.C. had assured Bridges that if arrested he would vouch for Bridges as legitimately working with him on drug cases. That partnership did not function as well as Bridges anticipated, particularly when he was arrested on the federal charges underlying this case. J.C., according to Bridges, advised him that the government case ...