United States v. Stephen Ewing

Case: 11-10176 Document: 00511864677 Page: 1 Date Filed: 05/23/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 23, 2012
No. 11-10176
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
STEPHEN MICHAEL EWING, also known as Stephen Michaels,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:10-CV-457
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Stephen Michael Ewing, federal prisoner # 22018-077, appeals the district
court’s denial of his 28 U.S.C. § 2255 motion, which challenged his convictions
for conspiracy to defraud the Internal Revenue Service, multiple counts of tax
evasion, multiple counts of mail fraud, multiple counts of making a false
statement to a government agency, and multiple counts of making false
statements in relation to health care matters. In his § 2255 motion, Ewing
argued that attorney Scott Brown, who allegedly participated in the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-10176 Document: 00511864677 Page: 2 Date Filed: 05/23/2012
No. 11-10176
representation of Ewing prior to his indictment, subsequently represented one
of Ewing’s co-defendants. Ewing argued that, as a result of his representation
of Ewing, Brown had obtained confidential information that he later used to
orchestrate the co-defendant’s testimony against Ewing and to obtain a more
favorable plea agreement for this co-defendant. This court granted a certificate
of appealability to address whether the district court erred in failing to find that
Brown had represented Ewing and whether any dual representation was a
conflict of interest that adversely affected the representation.
We review the district court’s factual findings underlying the denial of a
§ 2255 motion for clear error and its conclusions of law de novo. United States
v. Stricklin, 290 F.3d 748, 750 (5th Cir. 2002).
To prevail on an ineffective-assistance-of-counsel claim based on an alleged
conflict of interest, the movant “must show that his trial attorney was acting
under the influence of an actual conflict of interest that adversely affected his
performance at trial.” United States v. Infante, 404 F.3d 376, 390-91 (5th Cir.
2005) (citing Cuyler v. Sullivan, 446 U.S. 335 (1980)). If the movant
demonstrates an actual conflict that adversely affected counsel’s performance,
then prejudice is presumed. Id. at 391.
Assuming that Brown did represent both Ewing and his co-defendant,
Ewing still must show that this had some adverse effect. However, Ewing has
not alleged what confidential information Brown learned during his
representation, what confidential information Brown passed on or used to
benefit the co-defendant, what confidential information was presented by the co-
defendant in his testimony at Ewing’s trial, or how the use of confidential
information resulted in Ewing’s conviction. We have long held that “speculative
and conclusory allegations . . . are insufficient to raise a constitutional issue.”
United States v. Hall, 455 F.3d 508, 522 (5th Cir. 2006) (internal quotation
marks and citation omitted).
MOTION TO FILE REPLY BRIEF GRANTED; AFFIRMED.
2