United States v. Carrasco ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 20 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-2053
(D.C. No. CIV-00-995-LH/WWD)
JOSE ANTONIO CARRASCO, (D. N.M.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HENRY and HOLLOWAY , Circuit Judges, and BRORBY , Senior
Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant Jose Antonio Carrasco appeals from an order of the district court
denying his petition seeking relief under 28 U.S.C. § 2255. We affirm.
In 1988, Mr. Carrasco was indicted with six other co- defendants. He was
charged with conspiracy to possess and possession of more than 100 grams of
methamphetamine and more than 500 grams of cocaine with intent to distribute in
violation of 21 U.S.C. §§ 841(a) and 846. All defendants entered guilty pleas.
Mr. Carrasco was sentenced to concurrent terms of 262 and 240 months. He did
not appeal.
Mr. Carrasco, proceeding pro se, then filed this timely § 2255 motion. He
argued that (1) he had received ineffective assistance of counsel, (2) his guilty
plea was improper under Apprendi v. New Jersey, 530 U.S. 466 (2000), and
(3) 21 U.S.C. § 841 is unconstitutional . We granted a certificate of appealability
(COA) on the issue of whether Mr. Carrasco received ineffective assistance of
counsel because counsel simultaneously represented him and one co-defendant,
Javier Lopez-Melgar. 1
In reviewing the district court’s ruling on a § 2255 motion, we may grant
relief only if we determine that “the judgment was rendered without jurisdiction,
or that the sentence imposed was not authorized by law or otherwise open to
1
Mr. Carrasco raises several other ways in which his counsel was
ineffective. We address only the issue on which a COA was granted.
-2-
collateral attack, or that there has been such a denial or infringement of the
constitutional rights of the prisoner as to render the judgment vulnerable to
collateral attack.” 28 U.S.C. § 2255. “In reviewing an ineffective assistance of
counsel claim based upon a conflict of interest, we review the district court’s
determination of whether an actual conflict existed de novo, and we review the
district court’s factual findings under a clearly erroneous standard.” United
States v. Gallegos, 108 F.3d 1272, 1279 (10th Cir. 19 97).
To prevail on an ineffective assistance of counsel claim due to an alleged
conflict of interest, even if the trial court was aware or reasonably should have
known of the potential conflict, the defendant must establish that an actual
conflict of interest adversely affected his counsel’s performance “as opposed to a
mere theoretical division of loyalties.” Mickens v. Taylor, 122 S. Ct. 1237, 1243
(2002); see also Cuyler v. Sullivan, 446 U.S. 335, 350 (1980) (mere possibility of
conflict of interest “is insufficient to impugn a criminal conviction”).
An actual conflict of interest results if counsel was forced to
make choices advancing other interests to the detriment of his client.
Without a showing of inconsistent interests, any alleged conflict
remains hypothetical, and does not constitute ineffective assistance.
Indeed, to demonstrate an actual conflict of interest, the petitioner
must be able to point to specific instances in the record which
suggest an impairment or compromise of his interests for the benefit
of another party.
United States v. Alvarez, 137 F.3d 1249, 1252 (10th Cir. 19 98) (citations and
quotations omitted); see also Cuyler , 446 U.S. at 356 n.3 (Marshall, J., concurring
-3-
in part and dissenting in part) (petitioner can show actual conflict of interest by
establishing that his and his co-defendants’ interests “diverge[d] with respect to a
material factual or legal issue or to a course of action”); United States v Bowie ,
892 F.2d 1494, 1500 (10th Cir. 1990) (“[D]efense counsel’s performance was
adversely affected by an actual conflict of interest if a specific and seemingly
valid or genuine alternative strategy or tactic was available to defense counsel,
but it was inherently in conflict with his duties to others . . . .”).
The same counsel represented both Mr. Carrasco and another co-defendant,
Guadalupe Natividad-Saenz. The court held a hearing pursuant to
Fed. R. Crim. P. 44, and Mr. Carrasco waived the conflict with
Mr. Natividad-Saenz. 2
Mr. Carrasco contends, however, he was not aware that at
one point, his counsel also represented Javier Lopez-Melgar. Mr. Carrasco
maintains he would not have waived the conflict as to Mr. Lopez-Melgar.
Mr. Carrasco states that, due to the conflict, counsel told him not to tell the
government about the other defendants’ roles in the conspiracy , refused to
accompany him to the debriefing session with the government, misadvised him as
to the possible sentence he faced, and did not obtain a plea agreement for him.
2
Mr. Carrasco maintains he was unaware that he waived the conflict. The
record belies this contention.
-4-
Mr. Carrasco’s allegations are purely speculative. No defendant presented
evidence implicating another defendant. Mr. Carrasco has failed to show that
counsel made choices advancing Mr. Lopez-Melgar’s interests to Mr. Carrasco’s
detriment. Mr. Carrasco does not contest the fact that he received the lowest
possible sentence permissible under the guidelines based on the facts he admitted
in entering his plea. Consequently, lacking a showing of specific instances where
counsel’s performance was adversely affected by his representation of both
Mr. Carrasco and Mr. Lopez-Melgar, we hold the district court did not err in
rejecting Mr. Carrasco’s claim of ineffective assistance of counsel based on his
attorney’s representation of Mr. Lopez-Melgar.
Mr. Carrasco urges us to also consider the issues on which a certificate of
appealability was not granted. Even if we were to consider them, they are without
merit. See United States v. Mora , 293 F.3d 1213, 1219 (10th Cir.) ( Apprendi “is
not retroactively applicable to initial habeas petitions”), cert. denied , 123 S. Ct.
388 (2002); United States v. Cernobyl , 255 F.3d 1215, 1218-19 (10th Cir. 2001)
(§ 841(b)(1) not unconstitutional due to Apprendi ).
-5-
The judgment of the United States District Court for the District of New
Mexico is AFFIRMED.
Entered for the Court
William J. Holloway, Jr.
Circuit Judge
-6-