                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  April 10, 2013
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 13-8001
 v.                                         (D.C. Nos. 2:12-CV-00107-NDF and
                                                  2:07-CR-00239-NDF-1)
 ESTEBAN CORNELIO-LEGARDA,                               (D. Wyo.)

          Defendant-Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.


      A jury convicted Esteban Cornelio-Legarda of a number of drug-related

crimes, a result this court affirmed on appeal. See United States v. Cornelio-

Legarda, 381 F. App’x 835 (10th Cir. 2010). Mr. Cornelio-Legarda then filed a

motion under 28 U.S.C. § 2255, seeking to undo his conviction. The district court

found nothing meritorious in the motion and denied relief in a thorough 39-page

order. Mr. Cornelio-Legarda now asks us for a certificate of appealability

(“COA”), as he must in order to challenge that decision.




      *
        This order is not binding precedent except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      We may grant a COA only if Mr. Cornelio-Legarda makes a “substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To do

this, he must demonstrate that “reasonable jurists could debate whether (or, for

that matter agree that) the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal

quotation marks omitted).

      Mr. Cornelio-Legarda tries to surmount this standard by arguing his

lawyer’s assistance at trial was ineffective because of a conflict of interest that

arose when he filed a grievance with the state bar association. We don’t doubt

there’s a potential for a conflict to arise when a client files a bar grievance about

his lawyer’s conduct, but to state that an actual conflict always and necessarily

does arise is not entirely accurate either. As the district court observed,

sometimes a complaint may actually have the opposite effect, lighting a fire under

the lawyer and encouraging him to do his best in order to prove that the complaint

has no merit. That’s what the district court found happened in this case, and Mr.

Cornelio-Legarda supplies no basis on which reasonable people might debate its

conclusion.

      The district court also acknowledged that sometimes complaints and

conflicts can lead to a total breakdown in attorney-client communications and that

this may itself give rise to a presumption of ineffectiveness. See Hale v. Gibson,

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227 F.3d 1298, 1313 (10th Cir. 2000). But the court again found no such problem

arose here and we see nothing debatable in its conclusion. Neither is the

unrealized potential for a conflict legally sufficient for us to grant relief: “a

defendant who raised no objection at trial must demonstrate” not merely that a

potential for a conflict of interest existed, but “that an actual conflict of interest

adversely affected his lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335,

348 (1980); see also United States v. Alvarez, 137 F.3d 1249, 1252 (10th Cir.

1998) (declining relief when there is no evidence a potential conflict matured into

an actual conflict where “counsel was forced to make choices advancing other

interests to the detriment of his client”).

      Separately, Mr. Cornelio-Legarda says the district court improperly denied

his request to amend his § 2255 motion. Mr. Cornelio-Legarda says he wanted to

add another claim of ineffective assistance, this one on the basis that his lawyer

failed to procure grand jury transcripts for use at his trial. He also wanted to

examine those transcripts himself. But these were entirely new claims, as Mr.

Cornelio-Legarda conceded, see R., Vol. 1, at 88, and they came two months after

§ 2255’s one-year limitations period expired. See 28 U.S.C. § 2255(f)(1).

      Separately still, Mr. Cornelio-Legarda contends the district court abused its

discretion by failing to rule on his request for the appointment of counsel. See 18

U.S.C. § 3006A(a)(2). While “an order . . . that denies a motion for appointment

of counsel . . . is . . . not subject to the COA requirement,” Harbison v. Bell, 556

                                          -3-
U.S. 180, 183 (2009), we nevertheless conclude that the district court didn’t

commit reversible error. Mr. Cornelio-Legarda only asked for counsel to help

him prepare for an evidentiary hearing on his claims. See R., Vol. 1, at 15, 21.

But the district court was able to resolve Mr. Cornelio-Legarda’s claims without

an evidentiary hearing, id. at 188, and that made his appointment-of-counsel

motion besides the point on its own terms.

      Mr. Cornelio-Legarda’s request for a COA is denied, and this appeal is

dismissed. The district court’s decision not to appoint counsel is affirmed.



                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




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