As explained in the 2013 Appellate Court case of Burgos-Torres v. Commissioner of Correction, where a habeas petitioner claims ineffective assistance of counsel based on a claimed conflict of interest, the petitioner “must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer’s performance….” Damon Bigelow, charged in multiple criminal and motor vehicle matters, was offered a plea bargain to resolve all pending charges for a total effective sentence of 40 years’ incarceration, execution suspended after 15 years with five years of probation. He then was arrested with a large quantity of heroin in his condominium. His brother, Byron, arrived during the condominium search and was found to possess marijuana. For his drug charges, Damon Bigelow faced 46 years of mandatory minimum incarceration with a maximum sentence of life. He retained Attorney Eugene Zingaro, who was successful in restoring the original 40 year plea offer. Bigelow entered his plea and was sentenced accordingly. He filed an amended petition for a writ of habeas corpus alleging ineffective assistance of counsel. The habeas court denied the petition but, granted certification to appeal. Bigelow appealed, claiming that the habeas court improperly denied his petition because Zingaro was burdened by an actual conflict of interest. The Appellate Court disagreed and affirmed the judgment. The basis for the claim was Zingaro’s representation of the petitioner’s brother, Byron Bigelow. Byron represented himself on the marijuana possession charges and was placed in a diversionary drug program. Zingaro met Byron during one of the petitioner’s court appearances and became Byron’s mentor. Zingaro visited Byron in lockup after a second arrest, counseling him not to follow in his brother’s footsteps. Eventually, Zingaro represented Byron. The Appellate Court agreed with the habeas court that there was no simultaneous representation of both brothers. The petitioner failed to establish that the habeas court’s findings were clearly erroneous that Zingaro acted as mentor, not lawyer, when visiting Byron in lockup and that their personal relationship did not begin until after the petitioner’s case was resolved. Even if the petitioner could establish that the finding was clearly erroneous, the claim still failed because the petitioner did not set forth a plausible alternative defense strategy that might have been pursued in his case.

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