                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       July 11, 2008
                    UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                 TENTH CIRCUIT                         Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 06-2182
          v.                                           (D. New Mexico)
 EMMANUEL N. OHIRI,                           (D.C. Nos. CIV-03-172-MV/ACT
                                                    and CR-00-1341-MV)
               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, EBEL, and O’BRIEN, Circuit Judges.



I.    Introduction

      Proceeding pro se, appellant Emmanuel N. Ohiri sought a certificate of

appealability (“COA”) from this court to appeal the district court’s denial of the

amended habeas corpus motion he filed pursuant to 28 U.S.C. § 2255. We

granted a COA on the following two issues relating to the voluntariness of his

guilty plea: (1) whether the Government’s failure to produce a statement made by

a co-defendant constitutes a violation of Brady v. Maryland, 373 U.S. 83 (1963)


      *
        This order and judgment is not binding precedent except under the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.
and (2) whether trial counsel provided constitutionally ineffective assistance.

Counsel was appointed for Ohiri and the issues were orally argued before this

court. Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, we affirm

the district court’s denial of habeas relief.

II.   Factual Background

      Ohiri, John Thomas Morris, and General Waste Corporation (“GWC”) were

charged in a superceding indictment with a myriad of violations related to the

illegal transportation and storage of hazardous waste. United States v. Ohiri, 133

F. App’x 555, 556 (10th Cir. 2005). In 2001, Morris pleaded guilty to three

counts of making false material statements on hazardous waste manifests. United

States v. Morris, 85 F. App’x 117, 119 (10th Cir. 2003). The following

statement, made by Morris, was attached to his presentence investigation report:

            I was employed at General Waste Corporation (GWC) from
      July of 1997 to July of 1998. My title was Operations Manager. My
      responsibilities entailed oversight of the hazardous waste activities,
      construction debris disposals, and sales. The first two weeks that I
      joined GWC, Manny Ohiri instructed me to identify, segregate, and
      label miscellaneous hazardous waste containers. Those containers
      had been accumulated by GWC waste management activities, and
      stored in the GWC warehouse prior to my arrival. . . . I do not know
      how long the regulated material GWC accumulated had been in
      storage prior to my employment. My participation included
      recreating false waste manifests for proper off-site disposal of the
      waste GWC had accumulated prior to my employment. Manny Ohiri
      was aware of this activity. Once the waste in the warehouse was
      organized, I started to make sales contacts with hazardous waste
      accounts I had managed prior to my employment with GWC. My
      previous employer, Envirosolve Southwest, Incorporated, had an
      authorization granted by the State of New Mexico to store hazardous

                                           -2-
      waste, up to 180 days, received from a conditionally exempt small-
      quantity waste generator [CESQG]. Without this type of
      authorization, a waste management transporter could only store the
      waste for no more than ten days. I personally made the decision, of
      my own accord, to operate GWC as if we were authorized as a 180-
      day storage and accumulation facility. I created uniform hazardous
      waste shipping manifests for GWC as the receiving facility. I then
      remanifested the waste containers, and had GWC designated as a
      generator for out-bound waste disposal. I intentionally did this for
      building or aggregating larger outbound shipments for economical
      reasons. Manny Ohiri was not informed of my waste management
      strategy and techniques in this particular case. For economical
      benefits and to increase profit margins related to the account, I would
      consolidate partial waste containers, mixing waste from multiple
      CESQGs, reducing outbound disposal container volume. I did this
      on my own accord, and Manny Ohiri was not informed of this
      strategy. In order to maintain my waste management accounts and
      integrity, I would change dates on various small quantity generator
      manifests, due to the waste facility non-approval status. I would pick
      up waste without obtaining disposal facility prior approval, and
      would hold the waste over an extended amount of time, until the
      approval was in place. I had recreated waste manifests and forged
      signatures to be in compliance, and to elude the waste generator and
      disposal facility. Manny Ohiri was not informed of this activity.

See Ohiri, 133 F. App’x at 557; Morris, 85 F. App’x at 557-58.

      In 2002, Ohiri pleaded guilty to Counts 21, 23, and 25 in the indictment.

Id. At the change of plea hearing, he admitted in open court that he knowingly

stored 11,000 pounds of hazardous waste from Four Corners Drilling Company

without a permit from February 13, 1998 to May 18, 1999 (Count 21); knowingly

transported and illegally stored 225 pounds of hazardous waste from Giant

Refining Company from July 17, 1998 to October 15, 1998 (Count 23); and

illegally stored 183 pounds of ignitable hazardous waste from iiná bá, Ltd., a


                                         -3-
GWC client, from May 28, 1999 to July 27, 2001 (Count 25). At Ohiri’s

sentencing hearing, the Government sought, inter alia, a two-level sentencing

enhancement pursuant to U.S.S.G. § 3B1.1(c) based on its position that Ohiri was

an organizer, leader, manager, or supervisor of the illegal activity. Ohiri, 133 F.

App’x at 557. In connection with the Government’s argument on this

enhancement, the district court read Morris’s written statement into the record.

Id. The district court ruled in favor of the Government and applied the § 3B1.1

enhancement. Id. at 558. Ohiri was sentenced to fifteen months’ imprisonment

and a three-year term of supervised release. Id. He was also ordered to pay

$42,000 in fines and restitution. Id.

      After his sentencing, Ohiri retained new counsel who filed a habeas motion

pursuant to 28 U.S.C. § 2255. Id. His counsel then withdrew and Ohiri filed pro

se objections to the magistrate judge’s report and recommendation. Id. He also

sought to amend his § 2255 motion. Id. The district court denied Ohiri’s motion

to amend and dismissed his § 2255 motion. Id. This court reversed the denial of

the motion to amend and remanded the matter to the district court. Id. at 563-64.

On remand, Ohiri obtained counsel who filed an amended § 2255 motion. The

magistrate judge recommended denying the amended motion. Ohiri’s counsel

withdrew and Ohiri thereafter proceeded pro se. The district court adopted the

magistrate judge’s recommendation and denied habeas relief. Ohiri sought a

COA from this court, which was granted on the two issues raised in his amended

                                         -4-
§ 2255 motion: (1) whether the Government violated Brady by failing to provide

Ohiri with Morris’s statement before the sentencing hearing and (2) whether

Ohiri’s trial counsel rendered ineffective assistance because of an alleged

financial conflict.

III.   Discussion

       This court reviews the denial of a § 2255 habeas motion de novo and the

district court’s factual findings for clear error. United States v. Orange, 447 F.3d

792, 796 (10th Cir. 2006). Ohiri asks us to either grant his § 2255 motion or

order the district court to hold an evidentiary hearing. An evidentiary hearing is

not required when “the motion and the files and records of the case conclusively

show that the [movant] is entitled to no relief.” 28 U.S.C. § 2255(b).

       A.    Alleged Brady Violation

       Ohiri first argues that the Government’s failure to disclose Morris’s written

statement constitutes a violation of Brady and renders his guilty plea involuntary.

While this court has recognized that a defendant may collaterally attack a guilty

plea based on an alleged Brady violation, we have also stated that “even if a

Brady violation is established, habeas relief would clearly be the exception.”

United States v. Wright, 43 F.3d 491, 496 (10th Cir. 1994) (quotation omitted).

To establish a Brady disclosure violation, Ohiri must demonstrate: (1) the

Government failed to disclose Morris’s statement, (2) the statement was favorable

to Ohiri as exculpatory, and (3) the statement was material. United States v.

                                         -5-
Walters, 269 F.3d 1207, 1214 (10th Cir. 2001). Because we conclude Morris’s

statement was not material, we can resolve Ohiri’s claim by assuming, without

deciding, that the Government was required to disclose Morris’s statement and

that the statement was exculpatory.

      “In the context of an attack on the validity of a plea, evidence is considered

material where there is a reasonable probability that but for the failure to produce

such information the defendant would not have entered the plea but instead would

have insisted on going to trial.” Id. (quotation omitted). Ohiri’s claim fails

because he cannot show a reasonable probability that knowledge of Morris’s

statement would have persuaded a defendant in his position to insist on going to

trial. See id. at 1215 (holding the proper inquiry is objective and “asks not what a

particular defendant would do but rather what is the likely persuasiveness of the

withheld information” (quotation omitted)).

      A twenty-six count superseding indictment was filed on February 13, 2002.

Ohiri was named in twenty-five of the counts which charged him with conspiring

with Morris to violate the Resource Conservation and Recover Act, knowingly

storing hazardous waste from several generators without a permit, knowingly

transporting hazardous waste without a hazardous waste manifest, knowingly

making false material statements on hazardous waste manifests, knowingly

concealing hazardous waste manifests from state inspectors, transporting

hazardous waste in a rental truck without the required warning placards, engaging

                                         -6-
in mail fraud, and removing and destroying hazardous waste labels from

containers of hazardous waste to prevent their seizure. Based on the appellate

record, Morris’s written statement appears to provide a valid defense to some of

the individual charges against Ohiri, particularly Count 25, to which he pleaded

guilty, and similar charges alleging that waste was knowingly stored without the

appropriate permits. The statement, however, clearly has no direct relevance to

several of the charges, including the allegation in Count 7 that Ohiri concealed

hazardous waste manifests from state inspectors, the claim in Count 8 that he

permitted hazardous waste to be transported without the required placards, and

the allegation in Count 24 that he removed warning labels from containers of

hazardous waste.

      The record also reveals that Morris’s statement does not support Ohiri’s

defense to two of the three counts to which he pleaded guilty. Count 21 charged

Ohiri with illegally storing waste from Four Corners Drilling Company from

February 13, 1998 to May 18, 1999. Ohiri alleges in his opening brief that he had

no knowledge of this violation because Morris picked up this waste and his

statement confirms that he secreted it on GWC’s property without Ohiri’s

knowledge. Ohiri alleges he disposed of the waste as soon as practicable after he

discovered it on the property. In his affidavit attached to his amended § 2255

motion, however, Ohiri admits he knew about this waste many months before it

was removed from GWC’s property on May 19, 1999:

                                         -7-
      The waste streams [from Four Corners Drilling Company] were
      picked up by Mr. Morris on February 13, 1998. . . . Unbeknownst to
      me, Mr. Morris left the waste hidden in the truck. This waste was
      discovered by EPA inspectors on November 13, 1998. I personally
      did not know of this waste until several weeks later, when I gave
      [GWC’s counsel] a tour of the facility.

Thus, notwithstanding Morris’s statement that Ohiri was unaware of the Four

Corners waste, Ohiri’s sworn admission establishes that he knowingly held the

waste for more than ten days after discovering it. See 40 C.F.R. § 264.1(g)(9)

(exempting transporters storing certain waste for ten days or less from compliance

with certain hazardous waste regulations).

      Count 23 charged Ohiri with knowingly storing 225 pounds of hazardous

waste from Giant Refining Company from July 17, 1998 to October 15, 1998. At

his change of plea hearing, Ohiri admitted knowingly storing this waste for more

than ten days but in his affidavit he stated,

      [GWC employee] Lucas Maestas had acted under Mr. Morris’s
      instructions to pick up waste stream from the Giant Refinery. Mr.
      Maestas had worked with Mr. Morris at Enviro-Solve. The Giant
      Refinery waste stream was not shipped to the [treatment, storage, and
      disposal facility]. The waste was abandoned at GWC by Mr. Morris
      without my knowledge or consent. When the waste was discovered,
      it was returned to the generator.

The record, however, demonstrates that Morris stopped working at GWC on July

11, 1998. The waste from Giant Refinery was picked up on July 17, six days

later. Ohiri has not presented any corroborating statement from Mr. Maestas and

there is no explanation of how Morris exercised supervisory control over Mr.


                                           -8-
Maestas during a time when Morris was no longer employed by GWC. Neither

does the record indicate how Morris could “abandon” the waste at GWC without

Ohiri’s knowledge when Morris left the company before the waste was picked up.

      In addition, Morris’s statement supports rather than refutes at least some of

the conspiracy allegations in Count 1. There is evidence in the record that Ohiri

was alerted to Morris’s illegal waste management activities no later than March 9,

1998. On that date, Ohiri wrote a letter to iiná bá, Ltd., acknowledging he was

aware Morris had recreated manifests to give the appearance that GWC was

holding hazardous waste no longer than ten days. In the letter, Ohiri represented

that he was “personally assuming complete oversight of Mr. Morris’s activities

and waste management issues.” The conspiracy charge, which was dismissed

pursuant to the terms of the plea agreement, contained allegations relating to the

creation of five hazardous waste manifests by Morris containing false

information, all of which were dated after March 9, 1998, i.e., the date on which

Ohiri, by his own admission, began personally supervising all of Morris’s

activity. The conspiracy charge also alleged that Morris created and signed

several false manifests during the first few weeks of his employment with GWC. 1

In his written statement, Morris alleged that he spent the first two weeks of his

      1
       Although the superceding indictment states that Morris began working at
GWC on or about June 1, 1997, Morris’s written statement indicates his
employment began in July 1997. In the Government’s Second Notice of Intent to
Offer Proof, Morris’s first day of employment was represented to be June 23,
1997.

                                         -9-
employment at GWC disposing of hazardous waste that had accumulated in

GWC’s warehouse. According to Morris, his participation involved “recreating

false waste manifests for proper off-site disposal of the waste GWC had

accumulated prior to [his] employment.” He also clearly stated that Ohiri was

aware of this activity.

      Our review of the entire record, thus, reveals the existence of evidence that

greatly diminishes the persuasiveness of Morris’s statement as to Ohiri’s claims

of absolute innocence. The statement is irrelevant to many of the charges against

Ohiri set out in the superceding indictment and supports others. Further, the

Government was prepared to present a substantial amount of evidence supporting

its theory that Ohiri knew hazardous waste was being illegally stored on GWC

property. 2 This evidence included a proffer that (1) Mark Coffman, an inspector

with the New Mexico Environment Department (NMED), personally observed

Ohiri mislabeling drums containing hazardous waste, 3 (2) Ohiri instructed five

GWC employees to remove hazardous waste from GWC property in the middle of

the night for the purpose of hiding it from NMED inspectors, and (3) Ohiri falsely




      2
       On its own motion, this court has supplemented the record with Ohiri’s
plea agreement and the Government’s Second Notice of Intent to Offer Proof.
See Fed. R. App. P. 10(e)(2)(C).
      3
       It appears this waste was the subject of Count 5 of the superceding
indictment.

                                        -10-
told Mr. Coffman that the first load of hazardous waste ever delivered to GWC

was received on August 26, 1997. 4

      We are convinced that even if Morris’s written statement had been made

available to Ohiri, there is no reasonable probability it would have persuaded him

to reject the plea agreement offered by the Government and, instead, insist on

proceeding to trial on all twenty-five counts in the indictment. Our review of the

entire record reveals a substantial risk he would have been convicted of a

considerable number of the counts to which Morris’s statement provided little or

no support for his defense. Thus, Morris’s statement is not material and no Brady

violation occurred when the Government failed to provide the statement to Ohiri.

      B.     Alleged Ineffective Assistance of Counsel

      Ohiri also relies on allegations of ineffective assistance of counsel to

support his claim that his guilty plea was not given freely and voluntarily.

Generally, claims of ineffective assistance of counsel are analyzed under

Strickland v. Washington, 466 U.S. 668 (1984). United States v. Hamilton, 510

F.3d 1209, 1216 (10th Cir. 2007) (“When a defendant’s challenge to a guilty plea

is based on ineffective assistance of counsel, we apply the two-part test

established in Strickland . . . .”). The familiar two-prong test set out in Strickland

requires a defendant to show both that his counsel’s performance fell below an

      4
       This evidence was eventually presented to the district court at Ohiri’s
sentencing hearing through the testimony of both Mr. Coffman and Jerome
Thompson, a GWC employee.

                                         -11-
objective standard of reasonableness and that he was prejudiced by counsel’s

deficient performance. Strickland, 466 U.S. at 687. The claim on which COA

was granted, however, was not premised on Strickland. Instead, Ohiri argued the

$35,000 debt he owed to his trial counsel, John Cline, created an actual conflict of

interest between himself and Cline. 5 See Mickens v. Taylor, 535 U.S. 162, 171

(2002). According to Ohiri, this conflict led to Cline’s failure to (1) engage in

pre-trial discovery, (2) investigate possible defenses to the charges against him,

(3) adequately interview witnesses, and (4) test the hazardous waste identified in

the indictment. Ohiri also argues that because of the debt, Cline pressured him to

plead guilty and failed to take appropriate steps to withdraw his guilty plea when

Morris’s statement was disclosed at the sentencing hearing.

      To prevail on this claim, Ohiri must demonstrate a conflict between himself

and his counsel “that affected counsel’s performance—as opposed to a mere

theoretical division of loyalties.” Mickens, 535 U.S. at 171 (emphasis omitted).

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

      5
       Presumably, Ohiri did not proceed under Strickland v. Washington in his
amended § 2255 motion because he cannot meet the prejudice prong of the
Strickland test. Compare Strickland v. Washington, 466 U.S. 668, 691-92 (1984)
(requiring a defendant to show both deficient performance and prejudice) with
Cuyler v. Sullivan, 446 U.S. 335, 349-50 (1980) (holding prejudice is presumed
when a defendant demonstrates that an actual conflict of interest “adversely
affected his lawyer’s performance”). To the extent his pro se filings in this court
include a request for a COA based on Strickland, we deny that request both
because the argument was not presented to the district court in the § 2255 motion,
Dockins v. Hines, 374 F.3d 935, 940 (10th Cir. 2004), and because he has failed
to show prejudice.

                                        -12-
advancing other interests to the detriment of his client.” United States v. Alvarez,

137 F.3d 1249, 1252 (10th Cir. 1998). A defendant must do more than allege the

potential for a conflict, he must point to “specific instances to support his

contentions.” Id. at 1251; see also Caderno v. United States, 256 F.3d 1213, 1218

(11th Cir. 2001) (holding a defendant “must establish that an actual financial

conflict existed by showing that his counsel actively represented his own financial

interest during [defendant’s] trial, rather than showing the possibility of an actual

financial conflict”). Thus, we can quickly reject Ohiri’s first assertion that the

mere existence of the debt gave rise to an actual conflict. See United States v.

O’Neil, 118 F.3d 65, 71 (2d Cir. 1997) (“[T]he existence of a fee dispute and an

attorney’s motion to withdraw for that reason do not without more constitute a

conflict of interest.”).

       Ohiri must point to specific examples showing that Cline put his own

financial interests ahead of Ohiri’s interests. He attempts to meet this burden

with an affidavit signed by Cline. Cline stated in this affidavit that (1) Ohiri had

paid his firm $41,000 but still owed over $35,000 in fees and costs; (2) he did not

retain experts to aid in trial preparation and did not have waste samples tested by

independent laboratories because Ohiri could not afford the costs; (3) with the

exception of the change of plea hearing, Ohiri at all times denied guilt and was

reluctant to plead guilty; (4) he could not remember another case in which he

more strongly recommended that a client enter a guilty plea; and (5) if Ohiri’s

                                         -13-
case had gone to trial, he would have requested a continuance because he was

unprepared to proceed, having just completed a trial in another matter.

      Cline’s affidavit is insufficient to show the existence of an actual conflict

of interest because the statements contained therein, like the simple existence of

the debt, show only the possibility of a conflict. Cline does not state that Ohiri’s

existing debt caused him to forego retaining experts or testing waste samples.

Instead, he says those options were not pursued because Ohiri could not afford

them. Likewise, he does not say he recommended that Ohiri accept the guilty

plea because of the debt and the affidavit does not indicate Cline believed Ohiri

was innocent or would be acquitted. To the contrary, Clines states, “I made [it]

clear to [Ohiri] that the decision whether to plead guilty or go to trial was his to

make.” Further, when Ohiri indicated he might want to withdraw his guilty plea,

Cline claims he reiterated to Ohiri the reasons that, in his view, “made it

advisable for [Ohiri] to have entered the guilty plea in the first place.” Finally,

although Cline admits he was not prepared to proceed with Ohiri’s trial, his

statement makes it clear his lack of preparation was the result of his involvement

in another matter, not the outstanding debt.

      Ohiri makes additional arguments that Cline’s representation was

inadequate because of the debt, including allegations Cline failed to conduct an

adequate investigation or effectively cross-examine witnesses. But, again, he can

point to no evidence linking this alleged deficient performance to the existence of

                                          -14-
the debt. Because Ohiri cannot show an actual conflict of interest between

himself and Cline, his ineffective assistance of counsel claim fails.

IV.   Conclusion

      Because “the motion and the files and records of the case conclusively

show that [Ohiri] is entitled to no relief,” the district court properly resolved

Ohiri’s habeas motion without an evidentiary hearing. 28 U.S.C. § 2255(b). The

decision of the district court denying habeas relief is affirmed. The

Government’s motion to strike document 32 from the record and to strike exhibits

attached to Ohiri’s opening brief is denied.

                                                ENTERED FOR THE COURT


                                                Michael R. Murphy
                                                Circuit Judge




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