                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 25 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-17485

              Plaintiff - Appellee,              D.C. Nos.    1:12-cv-00062-DAE-
                                                 BMK
  v.                                                          1:08-cr-00223-DAE-1

DAVID OPOLLO ROSS,
                                                 MEMORANDUM*
              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-17486

              Plaintiff - Appellee,              D.C. Nos.    1:12-cv-00086-DAE-
                                                 KSC
  v.                                                          1:08-cr-00223-DAE-2

LEI LAVARIAS ROSS, AKA Lei L
Lavarias, AKA Lei Lopez,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Hawaii
                     David A. Ezra, District Judge, Presiding

                        Argued and Submitted June 11, 2014

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                  Honolulu, Hawaii

Before: W. FLETCHER, IKUTA, and HURWITZ, Circuit Judges.


      David and Lei Ross appeal the district court’s denial of their 28 U.S.C. § 2255

motions attacking their convictions for tax evasion and conspiracy to defraud the

United States. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and affirm.

      David Ross contends that his attorney, Alan Richey, had an actual conflict of

interest because he was a necessary witness for their defense, and otherwise provided

ineffective assistance of counsel.      The district court granted a certificate of

appealability on the actual conflict argument, but denied a certificate of appealability

on three other ineffective assistance claims.

      1.     The district court concluded after a two-day evidentiary hearing that

Richey did not have an actual conflict, as he never advised the Rosses to undertake

illegal activity, and because his testimony would not have supported the defense and

would have likely aided the prosecution. Those factual findings were not clearly

erroneous. United States v. Aguirre–Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010).

      2.     Because the Rosses failed to make “a substantial showing of the denial

of a constitutional right” on their other ineffective assistance claims, we decline to




                                           2
address the issues not covered by the certificate of appealability.   28 U.S.C.

§ 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483 (2000).

AFFIRMED.




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