446 F2d 53 Peterson v. W J Estelle

446 F.2d 53

Jack Martin PETERSON, Petitioner-Appellee,
v.
W. J. ESTELLE, Warden of the Montana State Penitentiary,
Respondent-Appellant.

No. 26491.

United States Court of Appeals, Ninth Circuit.

June 10, 1971.

Robert L. Woodhall, Atty. Gen. of Montana; J. C. Weingartner, Asst. Atty. Gen., Helena, Mont., for appellant.

Pedersen & Herndon, Billings, Mont., for appellee.

Before DUNIWAY and WRIGHT, Circuit Judges, and McNICHOLS, District judge.1

PER CURIAM:

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1

The district court granted Peterson's petition for a writ of habeas corpus. Estelle, the warden of the Montana State Penitentiary, appeals.

2

Peterson and Evans were jointly tried in the Montana court for burglary. A single counsel was appointed to represent both. There was no direct evidence connecting Peterson to the burglary. However, a prosecution witness attributed to Evans an exculpatory statement that inculpated Peterson. Neither Peterson nor Evans took the stand. The district court found that the statement created a conflict of interests between counsel's duties to each of the codefendants, and issued the writ.

3

Whether a conflict of interests existed is a question of fact. The district court's finding was not clearly erroneous, and it therefore must stand. Moss v. Craven, 9 Cir., 1970, 427 F.2d 139, 140; Knowles v. Gladden, 9 Cir., 1967, 378 F.2d 761, 766-767. The district court properly applied the law in concluding that the conflict of interests denied Peterson the right to effective representation of counsel. See Glasser v. United States, 1942, 315 U.S. 60, 75-76, 62 S.Ct. 457, 86 L.Ed. 680.

4

Affirmed.