                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                    PUBLISH
                                                                       MAR 3 1998
                    UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                                                                            Clerk
                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

 v.                                                   No. 96-2173

 ADOLFO ALVAREZ,

             Defendant-Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW MEXICO
                      (D.C. No. CIV-96-320-BB)


Submitted on the briefs:

John J. Kelly, United States Attorney, and David N. Williams, Assistant United
States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.

Adolfo Alvarez, pro se.


Before PORFILIO, KELLY, and HENRY, Circuit Judges.


KELLY, Circuit Judge.
      Adolfo Alvarez appeals from the district court’s order denying his motion

for post-conviction relief filed pursuant to 28 U.S.C. § 2255. 1 Our jurisdiction

arises from 28 U.S.C. § 2253(a). 2 We review the district court’s legal rulings de

novo and its factual findings for clear error. See United States v. Blackwell, 127

F.3d 947, 950 (10th Cir. 1997).

      Mr. Alvarez and two codefendants were tried and convicted for possession

with intent to distribute more than fifty kilograms of cocaine. The convictions

were affirmed on direct appeal. Mr. Alvarez filed a § 2255 motion asserting

ineffective assistance of counsel. On appeal, as before the district court, Mr.

Alvarez contends that his attorney was ineffective because he had a conflict of


      1
             After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The
case is therefore ordered submitted without oral argument.

      2
              At the time Mr. Alvarez took his appeal, decisions of this court had
applied the § 2253(c) certificate of appealability requirements from the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to cases filed
prior to AEDPA’s effective date. Accordingly, Mr. Alvarez filed a motion for a
certificate of appealability and the government filed a motion to dismiss the
appeal for lack of jurisdiction. Since that time, in light of the Supreme Court’s
opinion in Lindh v. Murphy, 117 S. Ct. 2059 (1997), we have held that § 2255
movants who filed their applications with the district court prior to AEDPA’s
effective date need not obtain a certificate of appealability to proceed in this
court. See United States v. Kunzman, 125 F.3d 1363, 1364 n.2 (10th Cir. 1997).
Because Mr. Alvarez filed his § 2255 motion prior to AEDPA’s effective date, we
need not address his motion for a certificate of appealability or the government’s
motion to dismiss for lack of jurisdiction.

                                         -2-
interest which affected his representation, and because counsel failed to seek a

separate trial for Mr. Alvarez. 3 In support of his conflict of interest claim, Mr.

Alvarez avers that the attorneys who represented him and his codefendants were

partners in the same law firm, and that his attorney was paid by his codefendants.

He contends that the result of the conflicts created by this arrangement was that

his counsel was not working on his behalf, but on behalf of codefendant Mario

Israel Gastelum-Murguia.

      It is evident from our review of the district court’s ruling that the court did

not address these factual averments. The court simply concluded that no conflict

of interest existed after reciting that “different, independent retained attorneys”

had entered their appearances for Mr. Alvarez and his codefendants. Rec. Vol. I,

doc. 10, at 4. The court appeared not to recognize the potential conflicts of

interest that could arise from the facts as asserted by Mr. Alvarez. See Wood v.

Georgia, 450 U.S. 261, 268-69 (1981) (“Courts and commentators have

recognized the inherent dangers that arise when a criminal defendant is

represented by a lawyer hired and paid by a third party, particularly when the

third party is the operator of the alleged criminal enterprise.”); United States v.


      3
              In his reply brief, Mr. Alvarez also challenges the district court’s
ruling on his claim that counsel was ineffective in failing to seek a plea
agreement. This issue was not raised in Mr. Alvarez’s opening brief and,
therefore, is waived. See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984
n.7 (10th Cir. 1994).

                                          -3-
Gallegos, 975 F.2d 710, 713 (10th Cir. 1992) (discussing possible conflict arising

from multiple representation and “[a]ssuming without deciding that law partners

should be considered as one lawyer”); United States v. Allen, 831 F.2d 1487,

1497 (9th Cir. 1987) (“No one should be represented by an attorney who is

making him the ‘fall guy’ by design.”) (quotation omitted). Further, the

government did not contradict Mr. Alvarez’s allegations relating to conflicts of

interest, conceding for purposes of responding to the § 2255 motion that Mr.

Alvarez’s “claims are factually accurate.” Rec. Vol. I, doc. 5, at 4.

      Under these circumstances, we ordinarily would conclude that the case

must be remanded for further proceedings. However, “[w]e are free to affirm a

district court decision on any grounds for which there is a record sufficient to

permit conclusions of law, even grounds not relied upon by the district court.”

United States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994) (quotations

omitted). In this case, even were we to assume, as the government did before the

district court, that Mr. Alvarez’s claims were factually true, we conclude that he

has not met the applicable standard for determining whether a potential conflict of

interest constitutes ineffective assistance of counsel.

      As the district court properly noted, a two-part test governs this claim:

      In the context of a conflict of interest claim where there was no
      objection at trial . . . the client must demonstrate an actual conflict of
      interest which adversely affected his lawyer’s performance. United
      States v. Bowie, 892 F.2d 1494, 1500 (10th Cir. 1990). If the client

                                          -4-
         can establish the conflict actually affected the adequacy of his
         representation, prejudice is presumed. Cuyler v. Sullivan, 446 U.S.
         335, 350 (1980). The client has the burden of showing specific
         instances to support his contentions of an actual conflict adverse to
         his interests. United States v. Martin, 965 F.2d 839 (10th Cir. 1992).

Rec. Vol. I, doc. 10 at 3-4. The government’s contention on appeal, that Mr.

Alvarez must show prejudice resulting from the alleged conflict of interest, See

Appellee’s Br. at 11, is wrong. See Thomas v. Foltz, 818 F.2d 476, 482 (6th Cir.

1987).

         Accordingly, Mr. Alvarez must first demonstrate an actual conflict of

interest on the part of his counsel. Even were we to assume that his factual

averments are true, we conclude that these facts do not, by themselves,

demonstrate that an actual conflict existed. See Cuyler, 446 U.S. at 348 (noting

possible conflicts inherent in “almost every instance of multiple representation,”

but that ineffective assistance cannot be presumed from potential conflicts);

Danner v. United States, 820 F.2d 1166, 1170 (11th Cir. 1987) (holding unusual

nature of fee transactions insufficient to establish actual conflict); United States

v. Shaughnessy, 782 F.2d 118, 120 (8th Cir. 1986) (holding that dangers arising

from third-party payment of defendant’s attorney did not ripen into a conflict of

interest); United States v. Medel, 592 F.2d 1305, 1310 (5th Cir. 1979) (holding

that “[t]he mere fact of joint representation will certainly not show an actual




                                           -5-
conflict”). But see Quintero v. United States, 33 F.3d 1133, 1135 (9th Cir. 1994)

(noting that third-party fee arrangements arguably create a conflict of interest).

      An actual conflict of interest results if counsel was forced to make choices

advancing other interests to the detriment of his client. See Stoia v. United

States, 22 F.3d 766, 771 (7th Cir. 1994). Without a showing of inconsistent

interests, any alleged conflict remains hypothetical, and does not constitute

ineffective assistance. See Thomas, 818 F.2d at 481. Indeed, “[t]o demonstrate

an actual conflict of interest, the petitioner must be able to point to specific

instances in the record which suggest an impairment or compromise of his

interests for the benefit of another party.” Danner, 820 F.2d at 1169. Mr.

Alvarez has not met this burden. Cf. Bucuvalas v. United States, 98 F.3d 652,

655, 657 (1st Cir. 1996) (holding when defendant fails to object to alleged

conflict at trial he has burden to prove sixth amendment violation, and noting

defendant’s failure to offer additional facts supporting conflict of interest claim

based on third-party payment of counsel).

      We have carefully reviewed the entire record on appeal, including the trial

transcript. Despite Mr. Alvarez’s contentions that his counsel was working for

the benefit of Mr. Gastelum-Murguia, nothing in the record suggests a divergence

of interests between Mr. Alvarez and his codefendants or a compromise of any

kind in counsel’s defense of Mr. Alvarez. Counsel vigorously defended Mr.


                                          -6-
Alvarez throughout trial. Cf. Shaughnessy, 782 F.2d at 120. None of counsel’s

tactics or procedures benefitted the other codefendants over Mr. Alvarez. See

Danner, 820 F.2d at 1169; Medel, 592 F.2d at 1311, 1312. We conclude that, on

this record, Mr. Alvarez cannot demonstrate that the alleged conflicts of interest

had any adverse effect on counsel’s performance. See Stoia, 22 F.3d at 771 (“An

‘adverse effect’ occurs when an attorney’s actual conflict of interest causes a

lapse in representation contrary to the defendant’s interests.”) (quotations

omitted). Accordingly, we decline to remand the case for an evidentiary hearing.

Cf. Moore v. United States, 950 F.2d 656, 660-61 (10th Cir. 1991); Quintero, 33

F.3d at 1137.

      Mr. Alvarez also contends that counsel was ineffective in failing to file for

a severance of his trial. Based on our review of the record, we agree with the

district court’s conclusion that Mr. Alvarez has not demonstrated any prejudice

flowing from this alleged failure. Therefore, under the standard set out in

Strickland v. Washington, 466 U.S. 668, 693 (1984), this independent claim for

ineffective assistance of counsel fails. The judgment of the United States District

Court for the District of New Mexico is AFFIRMED.




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