(DOWNLOAD) "Olshen v. Mcmann" by United States Court of Appeals for the Second Circuit ~ eBook PDF Kindle ePub Free

July 11, 2021

eBook details

Title: Olshen v. Mcmann
Author : United States Court of Appeals for the Second Circuit
Release Date : January 09, 1967
Genre: Law,Books,Professional & Technical,
Pages : * pages
Size : 54 KB

Description

WATERMAN, Circuit Judge. This is an appeal by an incarcerated New York State prisoner from the dismissal by Judge Port of the United States District Court for the Northern District of New York of his petition for a writ of habeas corpus. Thirteen years after his 1948 conviction for attempted robbery had been affirmed, People v. Olshen, 276 App.Div. 781, 93 N.Y.S.2d 300 (2d Dept. 1949) appellant sought a writ of error coram nobis from the Kings County Court in order to vacate his conviction. In this request for collateral relief, appellant claimed he had been denied his right to the effective assistance of counsel in that his retained trial counsel, one Leon Fischbein had simultaneously, without appellant's knowledge, represented one Samuel Blumstein who had been the key prosecution witness at Olshen's trial. The Kings County Court, Barshay, J., conducted a full evidentiary hearing at which both appellant and Fischbein testified. The judge concluded, inter alia, that appellant had failed to establish (1) that Fischbein ever represented Blumstein and appellant simultaneously, (2) that any conflict of interest arose as a result of Fischbein's prior representation of Blumstein on an unrelated charge, or (3) that appellant was prejudiced by Fischbein's acting as his counsel. The court further concluded that Fischbein had skillfully cross-examined Blumstein and had generally conducted appellant's defense with great ability and that appellant knew at the time of his sentencing of his counsel's prior relationship with Blumstein. The application was denied, 30 Misc.2d 1078, 220 N.Y.S.2d 430 (1961), aff'd, 17 App.Div.2d 971, 233 N.Y.S.2d 1023 (2d Dep't 1962), motion for leave to appeal denied by Fuld, J. (Jan. 4, 1963), cert. denied, 374 U.S. 846, 83 S. Ct. 1903, 10 L. Ed. 2d 1065 (1963). The issue in the state coram nobis proceedings was the sole ground relied upon in the petition for habeas corpus brought to the federal district court below. The correctness of the denial of that petition is the only question presented upon this appeal.