    17‐2137 (L)
    Lopez v. United States


                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


                  At a stated term of the United States Court of Appeals for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
    York, on the 19th day of November, two thousand nineteen.

    PRESENT:
                       ROBERT D. SACK,
                       PETER W. HALL,
                       JOSEPH F. BIANCO,
                            Circuit Judges.



    AMAURY LOPEZ, JR.,

                              Petitioner‐Appellant,

                       v.                                              17‐2137 (Lead), 17‐2264 (Con)

    UNITED STATES OF AMERICA,

                              Respondent‐Appellee,




    Appearing for Petitioner‐Appellant:               MICHAEL K. BACHRACH, New York, NY.

    Appearing for Respondent‐Appellee:                ELIZABETH A. ESPINOSA (Karl Metzner, on the
                                                      brief), for Geoffrey S. Berman, United States



                                                      1
                                              Attorney for the Southern District of New York,
                                              New York, NY.




       Appeal from a judgment of the United States District Court for the Southern

District of New York (Crotty, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on March 16, 2018, is AFFIRMED.

       Petitioner‐Appellant Amaury Lopez, Jr. (Lopez) appeals from a judgment of the

United States District Court rejecting Lopez’s 28 U.S.C. § 2255 motion as well as his

motion to amend the Section 2255 motion and his motion for reconsideration. The district

court subsequently denied Lopez’s request for a certificate of appealability, but on

November 22, 2017, we granted one pursuant to 28 U.S.C. § 2253(c) and Federal Rule of

Appellate Procedure 22(b).

       Lopez and two other defendants were convicted by a jury of a conspiracy to

distribute cocaine, and possession with intent to distribute cocaine. Their convictions

and sentences were affirmed on appeal. United States v. Lopez, 572 F. App’x 1 (2d Cir.

2014). Lopez’s application for a certificate of appealability argued that (a) his due process

rights were violated at sentencing because of the lack of an independent finding of drug

quantities attributable to Lopez as required by the holding in Alleyne v. United States, 133

S. Ct. 2151 (2013); (b) the district court improperly rejected his ineffective assistance of

counsel claims when it determined they were procedurally barred; and (c) his trial

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counsel Ivan Fisher’s ongoing disciplinary proceedings presented an actual conflict of

interest that he did not knowingly waive at his Curcio hearing. We assume the parties’

familiarity with the underlying facts, the procedural history of the case, and the issues on

appeal, which include a variety of arguments, some of which are presented for the first

time.

        We will not address a claim not included in the certificate of appealability.

Armienti v. United States, 234 F.3d 820, 824 (2d Cir. 2000). However, as Lopez filed his

certificate of appealability pro se, we also must read his papers liberally and construe

them to raise the strongest arguments they suggest. E.g., McLeod v. Jewish Guild for the

Blind, 864 F.3d 154, 156 (2d Cir. 2017).

                                                   I.

        Many of the instances where Lopez claims counsel erred are tied to merits issues

that were fully litigated on his direct appeal.1 Now represented by counsel once again,

Lopez pursues a slightly different argument than the one advanced in his certificate of

appealability. He argues principally that his trial counsel’s conflicts of interest denied




1Lopez and codefendant Morel argued on appeal that (1) admitting evidence of an uncharged
murder which was tied to Morel and Lopez was improper, and (2) admitting recorded
conversations (and transcripts thereof) between the defendants and a cooperating witness
violated the Sixth Amendment Confrontation Clause. Lopez also argued that (3) the district
court improperly failed to hold an evidentiary hearing to examine potential prejudice to Lopez;
and (4) government disclosures related to the uncharged murder were made in an untimely
fashion, denying him the opportunity for a fair trial. Lopez, 572 F. App’x at 3‐4. All four
arguments were expressly rejected. Id.
                                               3
him his Sixth Amendment right to the effective assistance of counsel and that the trial

issues he lists are examples of lapses in representation due to those conflicts.

       A petition for relief under Section 2255 shall only be granted for a constitutional

error when the sentencing court lacked jurisdiction or when a miscarriage of justice

arises due to an error of law or fact which created a fundamental defect. Graziano v.

United States, 83 F.3d 587, 590 (2d Cir. 1996) (per curiam). The Sixth Amendment

provides defendants the right to effective assistance of counsel. Strickland v. Washington,

466 U.S. 668, 686 (1984). To establish a violation of that right, Lopez must show that

counsel’s performance fell below an objective standard of reasonableness outside of

professional norms and that but for counsel’s errors, the result of the proceeding would

have been different. Id. at 688, 694. We review de novo whether defendant’s counsel

rendered ineffective assistance. Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003).

Findings of fact with respect to that determination are reviewed for clear error.

Hemstreet v. Greiner, 491 F.3d 84, 89 (2d Cir. 2007).

       The Sixth Amendment right to counsel includes a right to conflict‐free

representation. See Wood v. Georgia, 450 U.S. 261, 271 (1981); United States v. Blount, 291

F.3d 201, 211 (2d Cir. 2002). This Court “group[s] attorney conflicts of interest into three

general categories” – per se, actual, and potential. United States v. Williams, 372 F.3d 96,

102 (2d Cir. 2004). A per se conflict occurs only where “trial counsel is not authorized to

practice law and where trial counsel is implicated in the same or closely related criminal


                                              4
conduct for which the defendant is on trial.” Id. at 103. An actual conflict occurs when

“the attorney’s and defendant’s interests diverge with respect to a material factual or

legal issue or to a course of action.” United States v. Schwarz, 283 F.3d 76, 91 (2d Cir.

2002). To prevail on such a claim, a defendant “must also show that the actual conflict

adversely affected [counsel’s] performance by demonstrating that a lapse in

representation resulted from the conflict.” Id. at 92. A potential conflict occurs when

“the interests of the defendant may place the attorney under inconsistent duties at some

time in the future.” Williams, 372 F.3d at 102. If a defendant can show only a potential

conflict, he must show both that it had an adverse effect upon his attorney’s

representation and that the conflict resulted in prejudice. See id. This amounts to the

showing required by the ordinary ineffective assistance of counsel test from Strickland.

United States v. Fulton, 5 F.3d 605, 609 (2d Cir. 1993).

       As an initial matter, Lopez is correct (and the government concedes) that the

district court improperly found his claims of ineffective assistance of counsel to be

procedurally barred. See Massaro v. United States, 538 U.S. 500, 503 (2003) (“[C]laims of

ineffective assistance of counsel need not be raised on direct appeal, whether or not there

is new counsel and whether or not the basis for the claim is apparent from the trial

record.”). The district court’s opinion and order, however, also reached the merits of

Lopez’s claims, finding that Lopez did not show his trial counsel’s representation fell

below objective standards of reasonableness and that his Alleyne argument was meritless.


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We “may affirm [a district court decision] on any grounds for which there is a record

sufficient to permit conclusions of law, including grounds not relied upon by the district

court.” In re Arab Bank, PLC Alien Tort Statute Litig., 808 F.3d 144, 157 (2d Cir. 2015)

(internal quotation marks and citation omitted).

       In his pursuit of relief for ineffective assistance, Lopez attempts to argue that (a)

trial counsel’s purchase of evidence constitutes a per se conflict; (b) that trial counsel’s

undisclosed disciplinary proceedings constituted an actual conflict of interest. Neither

claim is persuasive.

       Lopez cannot argue now for the first time that trial counsel’s purchase of

evidence from the confidential source and his related decision to retain counsel of his

own constituted a conflict of interest. See Green v. United States, 13 F.3d 577, 586 (2d Cir.

1994). Lopez argues that he presented this argument in his pro‐se petition for a

certificate of appealability, but even liberally construing his petition does not save this

argument. Lopez, who was represented throughout the pendency of his Section 2255

briefing in the district court, cannot present an argument on appeal that was not

presented below. Presenting one in the certificate of appealability is an invalid basis to

introduce a new claim.

       The disciplinary proceeding that Attorney Fisher was embroiled in, which Lopez

did argue below, did not create an actual conflict of interest. See Waterhouse v.

Rodriguez, 848 F.2d 375, 383 (2d Cir. 1988). Lopez alleges in a conclusory fashion that


                                              6
the district court and the government were aware of the proceedings. When the trial

court reasonably knows or should have known that a reasonable conflict could exist, it

must inquire into the potential conflict, but failure to do so does not require automatic

reversal. United States v. Blount, 291 F.3d 201, 211 (2d Cir. 2000). Instead, the question is

whether trial counsel’s alleged conflict hampered the representation, “not . . . whether

the trial judge should have been more assiduous in taking prophylactic measures.” Id.

at 212 (quoting Mickens v. Taylor, 535 U.S. 162, 179 (2002) (Kennedy, J., concurring)).

There is nothing in the record to indicate that either the government or the trial court

had any knowledge of what are typically confidential proceedings. See N.Y. Jud. Law §

90(10) (McKinney 2013); Southern District of New York Local Rule 1.5(d)(3). But even if

they did, the proceedings did not hamper Fisher’s representation of Lopez. See Blount,

291 F.3d at 211; Waterhouse, 848 F.2d at 383 (counsel’s unrelated disciplinary hearings

did not create a conflict when attorney ceased representation immediately upon

disbarment). An unrelated disciplinary proceeding running parallel to Fisher’s

representation of Lopez may have in fact “provided an incentive for the vigorous efforts

[Fisher] appears to have expended.” Waterhouse, 848 F.2d at 383. Fisher was licensed

throughout the duration of Lopez’s trial, and he was removed as Lopez’s counsel

shortly after being suspended. His proceedings did not affect his representation of

Lopez.




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       At best, the disciplinary hearings created a potential conflict; Lopez argues that

potential sanctions against Fisher created a financial incentive to keep the case going

and prevent Lopez from pleading guilty. Lopez must therefore show that Fisher’s

actions fell below an objective standard of reasonableness and that but for counsel’s

errors, the result would have been different. Fulton, 5 F.3d at 609. Lopez here fails. He

has not shown that but for his lawyer’s financial incentive to go to trial, he would have

pled guilty. In Raysor v. United States, 647 F.3d 491 (2d Cir. 2011), this Court held that a

petitioner’s statement that they would have accepted a plea agreement must be

accompanied by objective evidence such as a significant sentencing disparity. Id. at 495.

Here, not only was Lopez not offered a plea deal (making any benefit of pleading guilty

minimal in terms of offense level calculations), but he maintained his innocence through

sentencing. In making this determination, we have considered Lopez’s arguments that

he was given an unreasonable estimate of his chances of success and that he was not

adequately advised of his true sentencing exposure. The district court did not commit

clear error in determining that Lopez’s assertions were not credible, and he cannot now

show that but for Fisher’s potential conflict or deficiencies, “the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694; see also United States v. Carlton,

442 F.3d 802, 811 (2d Cir. 2006) (giving “strong deference” to district court’s credibility

determinations).




                                              8
       Lopez suggests that a variety of other deficiencies support his argument that

Fisher provided ineffective assistance. Lopez cannot, and does not attempt to, offer any

new facts showing that actual prejudice resulted or that the result of the proceeding

would have been different if his trial counsel had done any of the things he now argues

should have been done. See Strickland, 466 U.S. at 694. In fact, his arguments here

consist solely of single‐sentence citations to his arguments below. The potential

continuance requests that Lopez now identifies relate to litigated, underlying issues that

were affirmed on appeal. His arguments referencing Fisher’s failure to request a trial

continuance when it was revealed Lopez was being investigated for witness tampering

and Fisher’s failure to request a continuance after learning of the uncharged murder

evidence are without merit. Lopez cannot show he was prejudiced by Fisher’s trial

decisions or that the result of the proceedings would have been different. Id.

       Three alleged deficiencies remain: Fisher’s failure to object to the jury’s access to

transcripts of recorded phone calls; his failure to call the confidential source as a

witness; and the failure to challenge the introduction of recorded calls between co‐

conspirators as a violation of the Confrontation Clause. We take these issues in turn.

       First, when a “recorded conversation is conducted in a foreign language, an

English language transcript may be submitted to permit the jury to understand and

evaluate the evidence.” United States v. Ben‐Shimon, 249 F.3d 98, 101 (2d Cir. 2001). A

motion objecting to the transcripts would have been futile in light of Ben‐Shimon, and a


                                              9
motion without a solid foundation need not be filed for purposes of effective assistance.

United States v. Neresian, 824 F.2d 1294, 1322 (2d Cir. 1987). Lopez also fails to allege

that anything in the transcripts was inaccurate or offer any prejudicial reason why they

should not have been introduced, so there is no basis for an ineffective assistance claim.

       Second, “[c]ourts applying Strickland are especially deferential to defense

attorneys’ decisions concerning which witnesses to put before the jury.” Greiner v.

Wells, 417 F.3d 305, 323 (2d Cir. 2005). “[C]ounsel’s decision as to whether to call

specific witnesses – even ones that might offer exculpatory evidence – is ordinarily not

viewed as a lapse in professional representation.” United States v. Best, 219 F.3d 192, 201

(2d Cir. 2000) (internal quotation marks omitted). Without more than conclusory

statements as to the would‐be‐witness’ testimony, Lopez cannot present a plausible

claim of ineffective assistance based on Fisher’s failure to call the witness to testify.

       Third, “there can be no separate Confrontation Clause challenge to the admission

of a co‐conspirator’s out‐of‐court‐ statement.” Bourjaily v. United States, 483 U.S. 171,

183 (1987). As we acknowledged in our prior decision, no valid challenge to the

introduction of calls of co‐conspirator Lopez Sr. existed, Lopez, 572 F. App’x at 3, and

therefore the failure of Fisher to make such a challenge was not ineffective assistance.

       Finally, Lopez argues in the alternative that he should have at least been granted

an evidentiary hearing on his Section 2255 motion. Section 2255(b) provides that

“[u]nless the motion and the files and records of the case conclusively show that the


                                              10
prisoner is entitled to no relief, the court shall ... grant a prompt hearing.” 28 U.S.C. §

2255(b). We have interpreted this provision as requiring a hearing in cases where the

petitioner has made a “plausible claim” of ineffective assistance of counsel. Puglisi v.

United States, 586 F.3d 209, 213 (2d Cir. 2009) (internal quotation marks and citation

omitted). Review of a district court’s denial of a hearing on a Section 2255 motion is for

abuse of discretion. Morales v. United States, 635 F.3d 39, 45 (2d Cir. 2011) (citing Chang

v. United States, 250 F.3d 79, 82 (2d Cir. 2001)).

       For the reasons set fourth above, the district court did not abuse its discretion in

declining to hold a formal hearing. In particular, “when the judge who tried the

underlying proceedings also presides over a Section 2255 motion, a full‐blown

evidentiary hearing may not be necessary.” Raysor, 647 F.3d at 494.

                                                     II.

       Lopez next claims that he must be re‐sentenced because the sentencing court did

not make a separate determination of the amount of narcotics that were reasonably

foreseeable to Lopez over the duration of the conspiracy. He bases this claim on the

Supreme Court’s decision in Alleyne v. United States, 570 U.S. 99 (2013), which was

decided prior to the filing of his direct appeal. After initially asserting that Alleyne should

be applied retroactively, Lopez now concedes that at the time Alleyne was decided, his

case was not yet final and that appellate counsel failed to raise the issue on appeal. “In

failing to do so, petitioner procedurally defaulted the claim he now presses on us.”


                                               11
Bousley v. United States, 523 U.S. 614, 621 (1998). Lopez can only excuse his default if he

can establish “cause for the failure to bring a direct appeal and actual prejudice from the

alleged violations.” Zhang v. United States, 506 F.3d 162, 166 (2d Cir. 2007). To show

cause, a petitioner must demonstrate that the argument now raised “was so novel that its

legal basis was not reasonably available to counsel” at the time of his direct appeal.

United States v. Thorn, 659 F.3d 227, 233 (2d Cir. 2011). Because Alleyne had been decided

at the time of his direct appeal, and because Second Circuit precedent already had

addressed the type of argument Lopez now attempts to make, United States v. Adams, 448

F.3d 492, 499 (2d Cir. 2006), he cannot show cause for his default.

       Lopez argues on reply that if he has defaulted on his Alleyne argument, then he

must be allowed to amend his Section 2255 petition to allege his appellate counsel

provided inadequate assistance by failing to raise Alleyne. We disagree. The district court

expressly held that the jury’s specific findings of fact were “sufficient to support the

mandatory minimum sentence to which Petitioners were sentenced.” A49. Ample

evidence in the record indicates that Lopez was the “boss” of the organization. As the

leader of the criminal organization, Lopez was responsible for the drug quantities that

were distributed by the organization. See United States v. Chavez, 549 F.3d 119, 136 (2d

Cir. 2008), abrogation on other grounds recognized by United States v. Brown, 935 F.3d 43, 45

(2d Cir. 2019). No “manifest injustice” will result from affirming the denial of his motion

to amend. United States v. Babwah, 972 F.2d 30, 35 (2d Cir. 1992).


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      We have considered Lopez’s remaining arguments and find them to be without

merit. The judgment of the district court is AFFIRMED.

                                FOR THE COURT:
                                CATHERINE O’HAGAN WOLFE, Clerk of Court




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