Mario Ponce Rodriguez v. United States

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11582
Non-Argument Calendar
____________________
MARIO PONCE RODRIGUEZ,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:15-cv-23835-DMM
____________________
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2 Opinion of the Court 21-11582
Before NEWSOM, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Mario Ponce Rodriguez, 1 appeals the district court’s denial
of his 28 U.S.C. § 2255 motion to vacate his sentence. We granted
Ponce a certificate of appealability (“COA”) on whether the district
court erred by rejecting Ponce’s claim that his trial counsel per-
formed ineffectively without holding an evidentiary hearing.
I.
In October 2015, Ponce, represented by counsel, filed a mo-
tion to vacate his conviction and sentence under 28 U.S.C. § 2255.
In relevant part, he asserted that his trial counsel, Diaz, was ineffec-
tive because he had a conflict of interest. 2 He contended that the
conflict resulted in ineffective representation, specifically, Diaz’s
failure to “fully address and investigate ongoing witness collusion,”
adequately discuss the consequences of Ponce testifying at the trial
or prepare Ponce for testifying. Ponce filed an addendum to his
§ 2255 where he explained that Diaz “was burdened by a direct, per-
sonal conflict of interest arising from the representation of another
1 According to the parties, the appellant goes by “Ponce,” which this opinion
adopts for consistency.
2 On appeal, this Court granted a certificate of appealability (“COA “) only on
one issue: “Whether the district court erred by rejecting Ponce’s Claim 1, that
his trial counsel performed ineffectively, without holding an evidentiary hear-
ing?” Therefore, we do not address the other issues raised by Ponce.
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21-11582 Opinion of the Court 3
defendant in a matter analogous to the matter prosecuted in the
instant case.” Specifically, he asserted that Diaz was the subject of
a criminal investigation in another district, which created a conflict
of interest that Diaz failed to disclose and impacted his representa-
tion of Ponce.
Ponce later amended and consolidated his § 2255 motion,
adding new facts and supporting documentation that he discovered
during the pendency of his § 2255 motion. In relevant part, he con-
tended that the federal criminal investigation into Diaz created an
actual conflict of interest that should have been disclosed to Ponce
and that caused Diaz to provide ineffective assistance of counsel.
Additionally, he claimed that Diaz provided ineffective assistance of
counsel by not adequately informing Ponce about the govern-
ment’s plea offer before it expired; failing to prepare Ponce to tes-
tify at his trial or otherwise discussing the consequences of Ponce
testifying at trial; and failing to use favorable Brady 3 evidence and
cross-examine and impeach government witnesses.
Subsequently, the magistrate judge issued a report and rec-
ommendation (“R&R”) recommending that Ponce’s § 2255 mo-
tion be denied. As to Diaz’s conflict of interest, the R&R stated
that Ponce did not establish an actual conflict of interest and was
not entitled to relief because the Southern District of New York
was investigating Diaz, but Ponce was prosecuted in the Southern
3 Brady v. Maryland, 373 U.S. 83 (1963).
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4 Opinion of the Court 21-11582
District of Florida, so an actual conflict did not exist. The magis-
trate judge highlighted that this issue was not one of first impres-
sion, as the government had asked numerous courts in the South-
ern District of Florida to hold McLain 4 hearings based on Diaz’s in-
vestigation by the Southern District of New York, all of which de-
nied the government’s motions and found that an investigation in
another district did not create an actual conflict that required a
McLain hearing.
Addressing Ponce’s allegations that Diaz failed to call specific
witnesses and present specific evidence demonstrating collusion
among government witnesses, the magistrate judge noted that
Diaz did actually pursue that same theory at Ponce’s trial, and
found Diaz’s decisions about which witnesses to call and what evi-
dence to present were “the epitome of a strategic decision,” and
Ponce failed to establish deficient performance by Diaz. As to
Ponce’s claims that Diaz failed to prepare him to testify, the R&R
indicated that Ponce’s testimony did not indicate that he was un-
prepared to testify, and on the contrary, his responses to Diaz’s
questions were clear and consistent. The magistrate judge also
stated that Diaz’s questions were clear and organized, and Diaz elic-
ited testimony from Ponce that was favorable to their theory of the
case.
Turning to Ponce’s claim that Diaz did not communicate the
government’s plea offer to him before it expired, the magistrate
4 United States v. McLain, 823 F.3d 1457 (11th Cir. 1987).
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21-11582 Opinion of the Court 5
judge concluded that Ponce could not establish prejudice because
the record established that he had reviewed the plea offer and re-
jected it under oath and he had not established that he would have
accepted the offer. Regarding the evidentiary hearing, the magis-
trate judge stated that he had reviewed the parties’ pleadings and
briefs and found that Ponce had not established a need for an evi-
dentiary hearing because he could not show that such a hearing
would demonstrate that he was entitled to relief.
Ponce objected to the R&R. The district court overruled
Ponce’s objections to the R&R, adopted the R&R as supplemented
by its own findings, and denied Ponce’s § 2255 motion and a COA.
The district court found that, as to Ponce’s ineffective assistance of
counsel claim, a conflict did not exist based on the Southern Dis-
trict of New York’s investigation into Diaz based on McLain and the
decisions of other district courts. Likewise, it found that Ponce was
aware of the government’s plea offer and decided to go to trial in-
stead. Generally, the court found that “Diaz zealously advocated”
on Ponce’s behalf, he extensively, effectively, and vigorously
cross-examined witnesses, and Ponce’s testimony was not ill-pre-
pared, but rather, was incredible. As to the evidentiary hearing, the
court stated that the record of the case conclusively demonstrated
that Ponce was not entitled to relief and an evidentiary hearing was
not necessary.
II.
When reviewing the district court’s denial of a motion to
vacate, we review questions of law de novo and findings of fact for
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6 Opinion of the Court 21-11582
clear error. Thomas v. United States, 572 F.3d 1300, 1303 (11th Cir.
2009). “We review the district court’s denial of an evidentiary hear-
ing in a § 2255 proceeding for abuse of discretion.” Winthrop-Redin
v. United States, 767 F.3d 1210, 1215 (11th Cir. 2014). “The scope of
our review of an unsuccessful § 2255 motion is limited to the issues
enumerated in the COA.” McKay v. United States, 657 F.3d 1190,
1195 (11th Cir. 2011).
A district court is required to hold an evidentiary hearing on
a motion to vacate “[u]nless the motion and the files and records of
the case conclusively show that the prisoner is entitled to no relief.”
28 U.S.C. § 2255(b); Anderson v. United States, 948 F.2d 704, 706 (11th
Cir. 1991). Thus, if a movant “alleges facts that, if true, would en-
title him to relief, then the district court should order an eviden-
tiary hearing.” Aron v. United States, 291 F.3d 708, 714-15 (11th Cir.
2002) (quotation marks omitted). However, such a hearing is not
required where a movant’s claims are patently frivolous, based
upon unsupported generalizations, or affirmatively contradicted
by the record. Id.A petitioner alleging that he received ineffective assistance
of counsel in violation of the Sixth Amendment must establish two
elements. Strickland v. Washington, 466 U.S. 668, 687 (1984). “First,
the defendant must show that counsel’s performance was defi-
cient.” Id. Review of counsel’s actions is “highly deferential” and
“a court must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.”
Id. at 689. Additionally, “every effort [must] be made to eliminate
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21-11582 Opinion of the Court 7
the distorting effects of hindsight, to reconstruct the circumstances
of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Id. “The widespread use of the
tactic of attacking trial counsel by showing what ‘might have been’
proves that nothing is clearer than hindsight-except perhaps the
rule that we will not judge trial counsel’s performance through
hindsight.” Waters v. Thomas, 46 F.3d 1506, 1514 (11th Cir. 1995).
Thus, the petitioner must show “that counsel made errors so seri-
ous that counsel was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment.” Strickland, 466 U.S. at
687.
“Second, the defendant must show that the deficient perfor-
mance prejudiced the defense.” Id. Prejudice occurs when there is
a reasonable probability that “but for counsel’s unprofessional er-
rors, the result of the proceeding would have been different.” Id. at
694. “The likelihood of a different result must be substantial, not
just conceivable.” Harrington v. Richter, 562 U.S. at 112.
A. Conflict
To obtain relief on a claim of ineffective assistance of coun-
sel based on conflict of interest, a defendant 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) (citing Freund v. Butter-
worth, 165 F.3d 839, 858 (11th Cir. 1999)). In order to establish a
violation of the Sixth Amendment, a defendant “must demonstrate
that an actual conflict of interest adversely affected his lawyer’s
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8 Opinion of the Court 21-11582
performance.” Cuyler v. Sullivan, 446 U.S. 335, 350 (1981). A § 2255
petitioner must show “‘inconsistent interests and must demon-
strate that the attorney made a choice between possible alternative
courses of action.’” McConico v. Alabama, 919 F.2d 1543, 1546 (11th
Cir. 1990) (quoting Smith v. White, 815 F.2d 1401, 1404 (11th
Cir.1987)). “To prove adverse effect, a defendant needs to demon-
strate: (a) that the defense attorney could have pursued a plausible
alternative strategy, (b) that this alternative strategy was reasona-
ble, and (c) that the alternative strategy was not followed because
it conflicted with the attorney’s external loyalties.” Reynolds v.
Chapman, 253 F.3d 1337, 1343 (11th Cir. 2001). In United States v.
McLain, 823 F.2d 1457 (11th Cir. 1987), unbeknownst to the trial
court or the defendant, defense counsel was under criminal inves-
tigation by the same United States Attorney’s office that was trying
the defendant. The court held the conflict created ineffective assis-
tance of counsel but also stated that the defendant could have
waived the conflict if he had known about it prior to trial. Id. at
1464 & n. 11.
Here, the district court properly determined that Ponce
failed to establish an actual conflict of interest because Diaz was
under investigation by the Government in a different district. See
McLain, 823 F.2d at 1464; Reynolds, 253 F.3d at 1342. Although
Ponce argues that Diaz was being investigated for his role in “an
analogous case,” Ponce did not explain how that investigation im-
pacted this case, in a different district. Therefore, he has not shown
an actual conflict of interest that adversely affected his case. Ponce
is not entitled to a hearing on this claim.
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B. Plea Agreement
Ponce argues that Diaz provided ineffective assistance of
counsel when he did not present Ponce with the plea agreement
during its pendency. He further argues that he would have ac-
cepted the plea agreement had he known of it when it was viable.
However, Ponce cannot demonstrate prejudice under the Strick-
land standard. At the April 5, 2012, Colloquy on the plea offer,
Ponce stated that he wished to go to trial and rejected the plea offer
several times. Further, at that same hearing, Diaz used the present
tense to describe the plea offer such that if Ponce were only learn-
ing of the plea agreement at that time, and its favorable sentencing
recommendations, Ponce would have thought that the plea offer
was still open and yet he still rejected it. Finally, if indeed Ponce
only learned about the plea agreement on April 5, 5 and had wanted
to accept it as he now asserts, he would have raised this issue with
counsel after trial in his motion for a new trial, his direct appeal, or
in his initial § 2255 petition, but he did not. Because he cannot thus
show prejudice, he cannot show that he is entitled to a hearing on
this claim.
C. Trial Testimony
Next, Ponce argues that Diaz provided ineffective assistance
of counsel when he failed to prepare Ponce for testifying at trial.
Like his plea offer claim, this claim also fails under Strickland.
5 To the extent that Ponce now argues that he only learned in 2019 of the plea
offer, that claim is belied by his testimony at the April 5 Colloquy.
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10 Opinion of the Court 21-11582
Between the time Ponce arrived at the local prison and trial, Diaz
visited Ponce 15 times. His associate, a Honduran attorney, visited
Ponce for two hours the day before the Ponce’s testimony. At trial
Diaz questioned Ponce over two days and his questions, and
Ponce’s answers, were coherent and well-organized. For instance,
Diaz asked Ponce extensively and knowledgeably about his busi-
ness holdings and had photographic exhibits of those holdings to
support his line of questioning. Ponce’s answers do not reflect any
lack of familiarity with what was expected of him or surprise. Sim-
ilarly, Diaz’s questioning of Ponce after the Government’s cross-
examination was thorough and addressed the Government’s ques-
tioning. There simply was nothing in Ponce’s testimony that sug-
gests that he was not prepared. Because there is no evidence that
evens suggests “that that counsel made errors so serious that coun-
sel was not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment,” Ponce was not entitled to an evidentiary
hearing on this issue.6 Strickland, 466 U.S. at 687.
D. Impeachment Evidence
Ponce argues that Diaz’s impeachment of the Government’s
witnesses was deficient and cites a number of pieces of evidence
that he argues Diaz should have used to undermine the credibility
of the Government’s witnesses. We agree with the magistrate
judge that, at the trial, Diaz did actually pursue this very strategy,
6 To the extent that the district court commented that Ponce’s testimony did
not assist him, that statement appears to have been based on credibility, not
content.
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21-11582 Opinion of the Court 11
and was not deficient in that regard. Diaz began his defense of
Ponce with statements in his opening argument about the Govern-
ment’s witnesses’ lack of credibility, questioned the witnesses
about what they would be receiving for their testimony, and reit-
erated, in depth, their credibility issues in closing arguments. Fur-
thermore, we rejected as cumulative similar evidence that Ponce
raised in his motion for a new trial, including his new argument
that the witnesses colluded. United States v. Rodriguez, 703 F. App’x
784, 786 (11th Cir. 2017). Diaz exerted extensive energy and time
to attacking the Government’s witnesses’ credibility. “The mere
fact that other witnesses might have been available or that other
testimony might have been elicited from those who testified is not
a sufficient ground to prove ineffectiveness of counsel.” Foster v.
Dugger, 823 F.2d 402, 406 (11th Cir. 1987). We cannot say that his
failure to use several other pieces of evidence rises to the level of
ineffective assistance.
E. Other Trial Errors
Finally, Ponce points to several other trial errors that he as-
serts Diaz made. Specifically, he points to several witnesses that he
argues Diaz should have called and argues Diaz should have intro-
duced Ponce’s passport or INS records of Ponce’s travels to the
United States. However some of the identified omissions—like
failing to call ex-DEA agent Michael Levine, who would have tes-
tified that payment for drugs in dollars did not establish that the
drugs were being shipped to the United States—made perfect stra-
tegic sense because the defense strategy was that Ponce was not
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involved in the drug trade. Other evidence, like Wayne Morris’s
testimony that the helicopter Ponce used did not test positive for
cocaine, was brought up in another way and thus would be cumu-
lative. Again, like the impeachment testimony, we cannot fault
Diaz for not calling some available witnesses or not introducing
certain evidence when overall, he provided competent counsel.
These omissions were not “errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687.
Because Ponce has failed to show that his claims are not
claims that are patently frivolous, based upon unsupported gener-
alizations, or affirmatively contradicted by the record, the district
court did not err when it failed to hold an evidentiary hearing.
AFFIRMED.