                                                                    FILED
                                                        United States Court of Appeals
                         UNITED STATES COURT OF APPEALS         Tenth Circuit

                                    TENTH CIRCUIT                         September 30, 2013

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,

 v.                                                           No. 13-3157
                                                  (D.C. Nos. 2:07-CR-20168-JWL-4 &
 SHEVEL M. FOY,                                          2:12-CV-02677-JWL)
                                                               (D. Kan.)
           Defendant - Appellant.


               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before KELLY, HOLMES, and MATHESON, Circuit Judges.


       Shevel M. Foy, a federal prisoner appearing pro se,1 seeks a certificate of

appealability (“COA”) to challenge the district court’s denial of his 28 U.S.C. § 2255

motion to set aside or correct his sentence. Exercising jurisdiction under 28 U.S.C.

§ 1291, we reject Mr. Foy’s request for a COA and dismiss the matter.

       * This order is not binding precedent, except under the doctrines of law of the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.
       1
         Because Mr. Foy is proceeding pro se, we construe his pleadings liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also United States v. Pinson, 584 F.3d
972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s] arguments liberally;
this rule of liberal construction stops, however, at the point at which we begin to serve as
his advocate.”).
                                   I.       BACKGROUND

       In 2009, a jury found Mr. Foy guilty of two charges, including conspiracy “to

manufacture, possess with intent to distribute, or to distribute cocaine base and/or cocaine

in violation of 21 U.S.C. §§ 841(a)(1), . . . 846 and 18 U.S.C. § 2.” United States v. Foy,

641 F.3d 455, 460 (10th Cir. 2011). The district court sentenced him to 360 months in

prison. Id. Much of the government’s evidence came from intercepted telephone

conversations between Mr. Foy and his co-defendant, Monterial Wesley. In these

conversations, Mr. Foy and Mr. Wesley discussed “(1) pooling their money together to

pay for large quantities of cocaine; (2) how to resolve an $8,000 deficiency in their

payments to their drug source, Thomas Humphrey; (3) coordinating the distribution of

large amounts of fronted drugs; and (4) absconding with large amounts of fronted drugs.”

Id. at 461. On May 23, 2011, this court affirmed his conviction and sentence on the

conspiracy charge. Id. at 470.

       Mr. Foy filed a 28 U.S.C. § 2255 motion with the district court to vacate his

sentence, presenting two claims. First, he argued that he had received ineffective

assistance of counsel in violation of his Sixth Amendment rights because his trial counsel

had a financial conflict of interest that adversely affected his defense. Second, he

claimed that newly discovered evidence, an affidavit provided by Mr. Wesley after the

trial, demonstrated his actual innocence.

       The district court denied Mr. Foy’s § 2255 motion. The court held that because

Mr. Foy failed to provide evidence linking his trial counsel’s performance to concern
                                             -2-
over payment of attorney’s fees, Mr. Foy had, at most, shown only the possibility of his

attorney having a financial conflict of interest. Because Mr. Foy failed to demonstrate an

actual conflict of interest, the court concluded that his ineffective assistance of counsel

claim was without merit.

       The district court also held that because Mr. Wesley’s affidavit contained

information that Mr. Foy would have been aware of before trial, the affidavit was not

“newly discovered” evidence. Even if it were newly discovered evidence, the court

concluded that it would not support Mr. Foy’s actual innocence claim because other

evidence provided substantial support for the jury’s verdict. For these reasons, the

district court denied Mr. Foy’s motion and refused to issue a COA.

                                     II.    DISCUSSION

       Mr. Foy argues that we should grant a COA for his claims of ineffective assistance

of counsel and newly discovered evidence of actual innocence.

       To challenge the district court’s order denying his § 2255 petition, Mr. Foy must

receive a COA. See 28 U.S.C. § 2253(c)(1)(B); United States v. Gonzalez, 596 F.3d

1228, 1241 (10th Cir. 2010). To receive a COA, he must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel,

529 U.S. 473, 483-84 (2000). He may do so by “showing that reasonable jurists could

debate whether . . . the petition should have been resolved in a different manner or that

the issues presented were adequate to deserve encouragement to proceed further.” Slack,

529 U.S. at 484 (quotations omitted).
                                             -3-
    1. Ineffective Assistance of Counsel

        We generally consider ineffective assistance of counsel claims under Strickland v.

Washington, 466 U.S. 668 (1984), which requires a petitioner to “prove that counsel’s

performance was constitutionally deficient and that counsel’s deficient performance

prejudiced the defense, depriving the petitioner of a fair trial with a reliable result.” Boyd

v. Ward, 179 F.3d 904, 913 (10th Cir. 1999) (citing Strickland, 466 U.S. at 687). If,

however, a movant “shows that a conflict of interest actually affected the adequacy of his

representation,” then prejudice is presumed. Cuyler v. Sullivan, 446 U.S. 335, 349-50

(1980); see also United States v. Alvarez, 137 F.3d 1249, 1251 (10th Cir.1998).

Demonstrating the possibility of a conflict is not enough. Id. at 1252. 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.” Id. (citations omitted)

(quotations omitted).

        Mr. Foy argues that his lawyer had a conflict of interest that affected the adequacy

of representation. He contends that his trial counsel (1) pressured him to take a plea deal

because counsel was concerned about not being paid for trial expenses; (2) moved to

withdraw because Mr. Foy would not accept a plea agreement; and (3) told Mr. Foy’s

friend that Mr. Foy’s insistence on going to trial would “bankrupt” counsel’s practice.

Mr. Foy argues that his counsel’s concerns about trial costs led to inadequate preparation

for trial.


                                             -4-
       Mr. Foy’s allegations are deficient. They demonstrate the possibility of a conflict

of interest but fall short of satisfying the actual conflict requirement. In Caderno v.

United States, 256 F.3d 1213 (11th Cir. 2001), the movant’s trial counsel had sent letters

after the trial complaining about not being paid attorney’s fees and, citing reasons other

than financial concerns, filed a motion to withdraw. Id. at 1218-19. Affirming denial of

a § 2255 motion, the court concluded that the movant’s allegations of a conflict were

speculative, holding that “[a]lthough a defendant's failure to pay fees may cause some

divisiveness between attorney and client, courts generally presume that counsel will

subordinate his or her pecuniary interests and honor his or her professional responsibility

to a client.” Id. at 1219 (quoting United States v. Taylor, 139 F.3d 924, 932 (D.C. Cir.

1998) (quotations omitted)); see also United States v. O’Neil, 118 F.3d 65, 71 (2d Cir.

1997)).

       Mr. Foy’s contentions are even more speculative than those in Caderno. He does

not even allege that he failed or would be unable to pay attorney fees. His counsel’s

motion to withdraw is not evidence of a financial conflict of interest; it cites a complete

breakdown in communication as the basis for the motion—not financial concerns.

       Mr. Foy alleges that his trial counsel’s performance was deficient because

government witness Thomas Humphrey was not impeached at trial. But Mr. Foy states in

his request for COA that he and his trial counsel had plenty of conversations in which

Mr. Foy said he had never seen Mr. Humphrey. Mr. Foy’s trial counsel, therefore, had

spent significant time before trial considering Mr. Humphrey’s relationship with Mr. Foy.
                                             -5-
Counsel’s failure to impeach Mr. Humphrey was not due to inadequate preparation

resulting from the alleged financial conflict of interest.

       In sum, Mr. Foy does not show that any purported deficiencies in his

representation were linked to the alleged financial conflict of interest. He has therefore

shown only the possibility of a conflict of interest.2 See Alvarez, 137 F.3d at 1252.

Absent a demonstration of an actual conflict of interest that affected Mr. Foy’s

representation, we cannot presume that any deficiencies in his representation were

prejudicial. See Cuyler, 446 U.S. at 349-50.

       Without the benefit of a presumption of prejudice from an actual conflict of

interest, even if we assume that Mr. Foy received deficient representation, he must satisfy

the second element of the Strickland test and show that the deficient representation was

prejudicial. See Boyd, 179 F.3d at 914 (citing Strickland, 466 U.S. at 687). Considering

       2
           We find persuasive value in United States v. Ohiri, 287 F. App’x 32 (10th Cir.
2008) (unpublished); see also 10th Cir. R. 32.1(A) (permitting citation of unpublished
cases for persuasive value). In Ohiri, the movant’s trial counsel filed a post-trial affidavit
stating that the movant owed him a $35,000 debt, and that, having just completed a
different trial, he would have been unprepared to proceed in the movant’s trial without a
continuance. Ohiri, 287 F. App’x at 38. The movant argued that these circumstances
resulted in his trial counsel failing to conduct an adequate investigation or effectively
cross-examine witnesses. Id. at 39. But because no evidence showed that these alleged
deficiencies were linked to the petitioner’s debt, we held that the movant only established
the possibility of a financial conflict of interest and therefore the ineffective assistance
claim failed. Id.
        Mr. Foy likewise fails therefore to establish the link between the allegedly
deficient representation and the alleged conflict of interest. Indeed, his case is even
weaker than Ohiri for establishing a financial conflict of interest because Mr. Foy does
not allege that he owed a debt to his attorney or would be unable to pay his legal fees.


                                              -6-
the substantial evidence of Mr. Foy’s participation in the conspiracy—particularly the

intercepted phone calls between Mr. Foy and Mr. Wesley—the alleged deficiencies in his

representation could not have been prejudicial. Reasonable jurists could not debate that

his ineffective assistance of counsel claim fails.

   2. Newly Discovered Evidence of Actual Innocence

       Mr. Wesley was one of Mr. Foy’s co-defendants and co-conspirators. He

provided an affidavit after Mr. Foy’s trial. Mr. Foy contends this affidavit contains

newly discovered, exculpatory evidence. The affidavit avers that Mr. Foy was merely

Mr. Wesley’s customer, not a co-conspirator; that Mr. Foy never received drugs from him

on consignment; that they did not have an agreement to sell drugs together; that they

never shared profits from drug sales; and that Mr. Wesley never relied upon Mr. Foy as

his supplier or mediator in the drug trade.

       Mr. Wesley’s affidavit, however, does not provide newly discovered evidence. “If

a former codefendant who originally chose not to testify subsequently comes forward and

offers testimony exculpating a defendant, the evidence is not newly discovered if the

defendant was aware of the proposed testimony prior to trial.” United States v. Muldrow,

19 F.3d 1332, 1339 (10th Cir. 1994). Mr. Wesley invoked his Fifth Amendment right to

refuse to testify during Mr. Foy’s trial. The information in Mr. Wesley’s affidavit relates

to the nature and extent of his relationship with Mr. Foy, facts that would have been

known to Mr. Foy at the time of the trial. United States v. Maestas, 523 F.2d 316, 320

(10th Cir. 1975) (evidence regarding defendant’s prior relationship with witness was not
                                              -7-
newly discovered as it was clearly within defendant’s knowledge before the trial). Mr.

Wesley’s affidavit is, accordingly, not newly discovered evidence for purposes of his

§ 2255 motion.

         Mr. Foy asserts that his claim should prevail on actual innocence grounds even if

the affidavit is not newly discovered because it shows that he was not involved in the

conspiracy. But Mr. Wesley’s affidavit falls far short of showing “that it is more likely

than not that no reasonable juror would have convicted [Mr. Foy] in the light of the new

evidence” given the evidence of the intercepted conversations between Mr. Foy and Mr.

Wesley. Schlup v. Delo, 513 U.S. 298, 327. We therefore reject his claim as having no

merit.

                                     III.   CONCLUSION

         We conclude that reasonable jurists could not debate whether the district court

should have granted Mr. Foy’s petition. Accordingly, we reject Mr. Foy’s application for

COA and dismiss this matter.

                                            ENTERED FOR THE COURT



                                            Scott M. Matheson, Jr.
                                            Circuit Judge




                                              -8-
