United States v. Guadalupe-Quinones

Not for publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-1740
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS GUADALUPE-QUINONES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Selya and Lynch, Circuit Judges,
and Young,* District Judge.
Jason M. Sullivan for appellant.
Thomas F. Klumper, Assistant United States Attorney, with
whom H.S. Garcia, United States Attorney, and Sonia I. Torres,
Assistant United States Attorney, were on brief, for appellee.
May 14, 2003
*
Of the District of Massachusetts, sitting by designation.
YOUNG, District Judge. Defendant-appellant Carlos
Guadalupe-Quinones ("Guadalupe-Quinones") appeals the revocation of
his supervised release and the imposition upon him of a new
sentence of imprisonment. We affirm. The affirmance does not
preclude Guadalupe-Quinones from pursuing an ineffective assistance
claim, if any, under 28 U.S.C. § 2255, nor does it say anything
about the merits of such a claim.
I. BACKGROUND
On April 10, 1991, a federal grand jury indicted
Guadalupe-Quinones on two drug-related counts. Count One of the
indictment charged that on March 30, 1999, Guadalupe-Quinones and
a co-defendant, aiding and abetting each other, knowingly and
intentionally possessed, with the intent to distribute,
approximately forty kilograms of cocaine. Count Two charged that
on March 30, 1999, Guadalupe-Quinones and a co-defendant, aiding
and abetting each other, knowingly and intentionally possessed
forty kilograms of cocaine while aboard an aircraft (American
Airlines Flight 1290, from Puerto Rico to New York). Guadalupe-
Quinones pled not guilty to both counts. The United States
subsequently dismissed Count Two. Guadalupe-Quinones was
ultimately convicted by a jury on Count One.
The district judge initially sentenced Guadalupe-Quinones
to 151 months' imprisonment and a five year term of supervised
release. Guadalupe-Quinones subsequently submitted a motion to
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vacate the sentence under 28 U.S.C. § 2255. The district judge
granted this motion and ordered that Guadalupe-Quinones be produced
for re-sentencing. First Assistant Federal Public Defender
Epifanio Morales-Cruz ("Morales-Cruz") was assigned to represent
Guadalupe-Quinones at the re-sentencing.
On July 8, 1998, the Federal Public Defender, Joseph C.
Laws, Jr. ("Laws"), submitted a motion requesting leave to withdraw
or for continuance of the sentencing hearing (which was scheduled
for July 10). In this motion, Laws explained that Morales-Cruz
(who was apparently the second-in-command in the Federal Public
Defender's office, supervised only by Laws) had been the prosecutor
who handled Guadalupe-Quinones' preliminary hearing. Evidently,
Guadalupe-Quinones had called Morales-Cruz on the morning of July
8 to advise him of the conflict of interest, and to request that
the Federal Public Defender withdraw from representing him. Laws
thus asked the court to permit the Federal Public Defender's office
to withdraw, or in the alternative for a continuance, explaining
that:
Morales Cruz advises that he has no recollection of
participating in Mr. Guadalupe Quinones' case;
nevertheless, any such participation in fact establishes
a conflict in relation to this AFPD's continued
participation, and possibly conflicts out our
appearance by reasons of appearance of impropriety by the
remaining AFPDs in the office, who all work with and for
Mr. Morales Cruz, who supervises them. It should be
noted that AFPD Edgardo Rodriguez Quilichini, who would
eventually be tasked to represent Mr. Guadalupe Quinones
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in his appeal, is directly supervised by AFPD Morales
Cruz.
The district judge, in a margin order, granted the motion
and permitted the Federal Public Defender's office to withdraw. In
that same order, he appointed another counsel for Guadalupe-
Quinones: Raymond Rivera. The sentencing was rescheduled until
August of 1998, at which point the judge sentenced Guadalupe-
Quinones to a 121 month term of imprisonment and five years of
supervised release.
On March 12, 2002, the United States Probation Office
submitted a motion requesting the revocation of Guadalupe-Quinones'
supervised release term. In this motion, the probation officer
stated that Guadalupe-Quinones had violated his standard conditions
of release by committing and being charged with local crimes
involving attempt to commit robbery and possession of a blade
weapon. Guadalupe-Quinones had pled guilty to these two charges,
and had been sentenced by the San Juan Superior Court to four years
for the robbery offense and six months for the weapons offense, to
be served concurrently.
On March 27, 2002, a magistrate judge issued an order
scheduling a show-cause hearing, and appointing the Federal Public
Defender to represent Guadalupe-Quinones. On April 8, 2002, a
preliminary hearing was held; Guadalupe-Quinones was not present,
but an Assistant Federal Public Defender -- Juan Matos -- appeared
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as his counsel. On April 10, 2002, the magistrate judge issued a
Report and Recommendation, concluding that there were grounds to
revoke Guadalupe-Quinones' supervised release, and recommending
that the preliminary hearing be combined with the final revocation
hearing.
A final hearing was then held on May 13, 2002, before the
same district judge who had presided over Guadalupe-Quinones'
sentencing in 1998. Guadalupe-Quinones was present and represented
by another Assistant Federal Public Defender, Maria Arsuaga.
Guadalupe-Quinones was advised of his rights, and was also informed
that the probation officer had a copy of the judgment against him
for the state offenses. Id. at 5-6. Neither the prosecutor nor
Guadalupe-Quinones' counsel -- nor Guadalupe-Quinones himself --
reminded the district judge of the prior conflict with the Federal
Public Defender's office nearly four years earlier, and the
district judge did not inquire into it. Guadalupe-Quinones waived
the hearing, admitted to having committed the state offenses, and
was sentenced to 60 months imprisonment to run consecutively with
the state court sentence.
Guadalupe-Quinones now appeals this disposition, arguing
that his Sixth Amendment right to effective assistance of counsel
was violated by his counsel's (alleged) conflict of interest in
representing him.
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II. DISCUSSION
Guadalupe-Quinones argues that, having been advised of
his conflict with the Federal Public Defender's office in July
1998, the district judge should have inquired into the nature and
extent of that conflict when Guadalupe-Quinones appeared before him
-- represented by another member of the Federal Public Defender's
office -- during the supervised release revocation proceedings
nearly four years later in May 2002. He argues that as a result of
the judge's failure to do so, he received ineffective assistance of
counsel, in violation of the Sixth Amendment. Even assuming, for
argument's sake, that the district judge was indeed on inquiry
notice -- an assumption that would require us to conclude that a
busy trial judge, unprompted, should have recalled a not-
particularly-memorable incident that had transpired nearly four
years earlier -- this argument fails.
It is true that under Sullivan v. Cuyler, 446 U.S. 335,
347 (1980), and Wood v. Georgia, 450 U.S. 261, 272 (1981), a trial
court that knows or reasonably should know that a particular
conflict of interest exists on the part of a criminal defendant's
counsel -- definitely with respect to counsel's concurrent
representation of competing interests, and perhaps with respect to
other brands of conflicts as well -- is under the duty to inquire
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into the conflict.1 Under the Supreme Court's recent holding in
Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237 (2002), however,
a trial judge's failure to make this mandated inquiry will not,
without more, require automatic reversal. On the contrary,
automatic reversal is required "only where defense counsel is
forced to represent codefendants over his timely objection, unless
the trial court has determined there is no conflict." Mickens, 122
S.Ct. at 1242. In other circumstances, it is "at least necessary,
to void the [disposition], for [the defendant] to establish that
the conflict of interest adversely affected his counsel's
performance." Id. at 1245.
Despite Guadalupe-Quinones' arguments to the contrary,
his claim that a reversal is required merely because the district
judge failed to inquire into a conflict about which he knew or
should have known is foreclosed by Mickens. Only by establishing
that the alleged conflict of interest adversely affected his
counsel's performance can Guadalupe-Quinones prevail in his attempt
to set aside the result of this proceeding. See United States v.
1
Sullivan and Wood both arose within the context of a conflict
relating to defense counsel's concurrent representation of
competing interests. See Sullivan, 446 U.S. at 337; Wood, 450 U.S.
at 266-67. In Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237,
1245-46 (2002), the Supreme Court noted that "the Federal Rules of
Criminal Procedure treat concurrent representation and prior
representation differently," and stated that the extent to which
there is a duty to inquire with respect to conflicts arising from
circumstances other than concurrent representation is "an open
question."
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Newton, F.3d , 2003 WL 1826135, *9 (1st Cir. 2003) (stating
that in Mickens, "the Supreme Court expressly rejected a rule of
automatic reversal in cases where a defense attorney's conflict of
interest does not adversely affect counsel's performance").
No facts have been developed as to whether there was any
adverse effect. The Supreme Court has recently affirmed the wisdom
of this circuit's rule that where facts need to be developed on a
claim of ineffective assistance of counsel, the claim should be
brought by petition for post-conviction relief and the facts should
be developed by the trial judge. See Massaro v. United States, No.
01-1559, 2003 WL 1916677 (April 23, 2003).
Accordingly, we affirm the judgment below. Guadalupe-
Quinones is not, however, precluded from pursuing an ineffective
assistance claim under 28 U.S.C. § 2255, and we do not speak to the
merits of any such claim. If Guadalupe-Quinones does pursue such
a claim, and demonstrates his indigence, we direct the district
court to appoint counsel for him. See 18 U.S.C. § 3006A(a)(2)(B)
(stating that if "the interests of justice so require,
representation may be provided [under the Criminal Justice Act] for
any financially eligible person who . . . is seeking relief under
section . . . 2255 of Title 28"); see also United States v. Mala,
7 F.3d 1058, 1063-64 (1st Cir. 1993) (holding that because
appellant had presented a colorable claim that was factually
complex and legally intricate, and was severely hampered in his
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ability to investigate the undeveloped facts, the interests of
justice supported the appointment of counsel if Section 2255 relief
was pursued). As in Mala, we conclude that the interests of
justice militate in favor of appointing counsel for appellant
should he pursue habeas relief, given the colorability of his
claim, its heavily fact-specific nature, and his inability to
investigate those facts while in prison.
III. CONCLUSION
Accordingly, we affirm the judgment below, without
prejudice to Guadalupe-Quinones' right to raise his ineffective
assistance of counsel claim in a proceeding brought under 28 U.S.C.
§ 2255. Should he pursue this course, the district court is
instructed to appoint counsel for him, subject to the strictures of
the Criminal Justice Act.
SO ORDERED.
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