Gustavo Aguilar-Garcia v. United States , 517 F. App'x 880 ( 2013 )

Case: 12-11643 Date Filed: 04/26/2013 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-11643
Non-Argument Calendar
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D.C. Docket Nos. 1:11-cv-01740-CC; 1:07-cr-00123-CC-LTW-1
GUSTAVO AGUILAR-GARCIA,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
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(April 26, 2013)
Before BARKETT, MARCUS and KRAVITCH , Circuit Judges.
PER CURIAM:
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Gustavo Aguilar-Garcia, a federal prisoner represented by counsel, appeals
the district court’s dismissal of his motion to vacate under 28 U.S.C. § 2255. He
argues that his trial counsel labored under an actual conflict of interest that
adversely affected her performance in plea negotiations and in sentencing. He
asserts that his counsel had shared office space with and accepted referrals from a
target of the same government investigation that had given rise to the charges
against him. Aguilar-Garcia argues that his counsel’s relationship with this
person, whom he identifies only as “Hector”, tainted the entirety of his counsel’s
representation, and resulted in him receiving a harsh sentence.
In a 28 U.S.C. § 2255 proceeding, we review legal issues de novo and
factual findings for clear error. Thomas v. United States, 572 F.3d 1300, 1303
(11th Cir. 2009). Claims involving a counsel’s conflict of interest present mixed
questions of law and fact, and are reviewed de novo. Reynolds v. Chapman, 253
F.3d 1337, 1342 (11th Cir. 2001).
Generally, to demonstrate that trial counsel’s performance was so defective
that it was constitutionally deficient and requires reversal, a defendant must allege
facts showing: (1) that his counsel “made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed by the Sixth Amendment;” and (2) “that
the deficient performance prejudiced the defense.” Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
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Where an ineffective assistance claim is based on a conflict of interest, a
petitioner “must show first, that his attorney had an actual conflict of interest, and
second, that the conflict adversely affected counsel’s performance.” Pegg v.
United States, 253 F.3d 1274, 1277 (11th Cir. 2001); see also Cuyler v. Sullivan,
446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980). Thus, a
defendant who shows that a conflict of interest actually affected his representation
need not demonstrate prejudice in order to obtain relief. Cuyler, 446 U.S. at
349-50, 100 S.Ct. at 1719. However “the possibility of conflict is insufficient to
impugn a criminal conviction,” and absent a showing of actual conflict and adverse
effect, a petitioner is not entitled to relief. Id.“An ‘actual conflict’ of interest occurs when a lawyer has ‘inconsistent
interests.’” Freund v. Butterworth, 165 F.3d 839, 859 (11th Cir. 1999) (en banc)
(citation omitted). The inquiry into the existence of an actual conflict is “fact-
specific.” United States v. Novaton, 271 F.3d 968, 1011 (11th Cir. 2001). The
petitioner must show an “actual conflict,” because a speculative or merely
hypothetical conflict of interest does not yield a Sixth Amendment violation.
Reynolds, 253 F.3d at 1242-43. To prove adverse effect, a petitioner must
demonstrate three elements: (1) “that the defense attorney could have pursued a
plausible alternative strategy”; (2) “that this alternative was reasonable”; and
(3) “that the alternative strategy was not followed because it conflicted with the
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attorney’s external loyalties.” Id. at 1343. “If there is a guilty plea involved, this
Court looks at whether the attorney’s actual conflict adversely affected the
defendant’s decision to plead guilty.” Pegg, 253 F.3d at 1278.
The district court did not err in denying Aguilar-Garcia’s § 2255 motion
because his allegations, taken as true, do not demonstrate that his counsel operated
under an actual conflict of interest. Aguilar-Garcia did not allege any facts
showing how counsel’s relationship with Hector conflicted with his interests. The
“speculative or merely hypothetical” conflict is insufficient to show inconsistent
interests. Reynolds, 253 F.3d at 1242-43.
AFFIRMED.
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