         13-2994
         Curshen 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.

 1               At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2       Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
 3       7th day of January, two thousand fifteen.
 4
 5       PRESENT:
 6                   ROSEMARY S. POOLER,
 7                   GERARD E. LYNCH,
 8                   CHRISTOPHER F. DRONEY,
 9                               Circuit Judges.
10       _____________________________________
11
12       Jonathan R. Curshen,
13
14                                  Petitioner-Appellant,
15
16                          v.                                                    13-2994
17
18       United States of America,
19
20                         Respondent-Appellee.
21       ____________________________________
22
23
24       FOR PETITIONER-APPELLANT:                          Jonathan R. Curshen, pro se, Fort Dix, NJ.
25
26       FOR RESPONDENT-APPELLEE:                           John T. Zach, Michael A. Levy, Assistant United
27                                                          States Attorneys, for Preet Bharara, United States
28                                                          Attorney for the Southern District of New York,
29                                                          New York, NY.
30
 1          Appeal from an order of the United States District Court for the Southern District of

 2   New York (Torres, J.).

 3          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED that the order of the

 4   district court is VACATED and REMANDED.

 5          Appellant Jonathan Curshen, proceeding pro se, appeals from the July 25, 2013 order of

 6   the district court denying him relief pursuant to 28 U.S.C. § 2255. On December 2, 2013, we

 7   granted a certificate of appealability on Curshen’s ineffective assistance of counsel claims,

 8   including a conflict of interest claim. Liberally construed, Curshen’s brief challenges only the

 9   district court’s denial of his conflict of interest claim. Therefore, we deem Curshen to have

10   waived his other ineffective assistance claims. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d

11   Cir. 1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will

12   not be addressed on appeal.”). We assume the parties’ familiarity with the underlying facts, the

13   procedural history of the case, and the issues on appeal.

14          In reviewing the denial of relief under § 2255, we review findings of fact for clear error

15   and conclusions of law de novo. Scanio v. United States, 37 F.3d 858, 859 (2d Cir. 1994). We

16   review the denial of an evidentiary hearing for abuse of discretion. Chang v. United States, 250

17   F.3d 79, 82 (2d Cir. 2001).

18          A district court should grant a prompt hearing on a § 2255 motion “[u]nless the motion

19   and the files and records of the case conclusively show that the prisoner is entitled to no relief.”

20   28 U.S.C. § 2255(b). Thus, to be entitled to a hearing, a movant must allege a “plausible or

21   viable” claim. See United States v. Tarricone, 996 F.2d 1414, 1418 (2d Cir. 1993). The scope of

22   that hearing is within the district court’s discretion, and the district court may employ methods


                                                      2
 1   other than conducting a “full-blown testimonial hearing,” such as ordering expansion of the

 2   record. Chang, 250 F.3d at 86. “[E]xcept in highly unusual circumstances,” a district court

 3   should not resolve an off-the-record claim of ineffective assistance of counsel without

4    “testimony, affidavits, or briefs” from the allegedly ineffective attorney. Sparman v. Edwards,

 5   154 F.3d 51, 52 (2d Cir. 1998).1 Because a conflict of interest “implicate[s] actions taken by

 6   counsel outside the presence of the trial judge and therefore [cannot] ordinarily be resolved”

 7   without a hearing, Armienti v. United States, 234 F.3d 820, 825 (2d Cir. 2000), remand is

 8   ordinarily appropriate if there are no affidavits, evidence, or testimony in the record relating to

 9   counsel’s performance, see Bloomer v. United States, 162 F.3d 187, 194 (2d Cir. 1998).

10   However, remand is unnecessary if it would result in “a waste of judicial time,” such as when a

11   movant has not alleged a claim or when the record evidence demonstrates otherwise. See

12   Jackson v. Leonardo, 162 F.3d 81, 86 (2d Cir. 1998).

13          To plausibly state an actual conflict of interest claim, a movant need only allege “(1) an

14   actual conflict of interest that (2) adversely affected his counsel’s performance.” See United

15   States v. Schwarz, 283 F.3d 76, 91 (2d Cir. 2002). Counsel has an actual conflict if “during the

16   course of the representation, the attorney’s and defendant’s interests diverge with respect to a

17   material factual or legal issue or to a course of action.” Winkler v. Keane, 7 F.3d 304, 307 (2d



               1
                 The Government argues that Sparman stands only for the proposition that a district
       court must not grant an ineffective assistance of counsel claim without first permitting
       counsel to be heard. It is true that we have noted that, “before making any determination that
       counsel was incompetent, [the district court] should provide counsel with [an] opportunity
       [to testify or present evidence],” United States v. Dukes, 727 F.2d 34, 41 n.6 (2d Cir. 1984),
       but we have stated that an explanation from counsel will ordinarily be necessary where, as
       here, a claim of ineffective assistance of counsel is “serious enough to require an evidentiary
       hearing,” id. at 41.

                                                      3
 1   Cir. 1993) (internal quotation marks omitted). An actual conflict “adversely affect[s] counsel’s

 2   performance” if “some plausible alternative defense strategy or tactic might have been pursued,

 3   and . . . the alternative defense was inherently in conflict with or not undertaken due to the

 4   attorney’s other loyalties or interests.” Schwarz, 283 F.3d at 92 (internal quotation marks

 5   omitted). A movant need not allege that the outcome of his trial would have been different; a

 6   plausible defense strategy is a strategy that could have been pursued even if, in all likelihood, it

 7   would have failed. Id.

 8          Here, Curshen alleged a plausible conflict of interest claim, and the available record did

 9   not conclusively foreclose his entitlement to relief. Curshen’s § 2255 motion asserted that his

10   attorney, Anthony Lombardino, concurrently represented Michael Krome, which resulted in an

11   actual conflict of interest that adversely affected Lombardino’s performance. In support of his

12   claim, Curshen stated that the Securities and Exchange Commission deposed Krome in early

13   2008 in an investigation of CO2 Tech, Ltd. Curshen alleged that Lombardino learned in

14   October 2008 that Curshen was also implicated in the investigation of CO2 Tech, Ltd.

15   According to Curshen’s motion, Krome cooperated with the Government and was entered as a

16   witness for the prosecution in a case filed against Curshen in the Southern District of Florida.

17   Curshen argued that, as a result of this dual representation, Lombardino could not effectively

18   represent him in maintaining his innocence in proceedings leading up to and including trial, and

19   instead persuaded him to plead guilty. The available record from the prior district court

20   proceedings did not contradict these allegations.

21          The district court erred by summarily denying Curshen’s § 2255 motion without

22   determining whether to hold a “full-blown testimonial hearing” or employ other methods


                                                      4
 1   authorized by § 2255. Although the district court cited the correct standard for an actual conflict

 2   of interest claim, it erroneously required a showing of prejudice. The district court ruled that

 3   proceeding to trial would have been an implausible defense strategy given the overwhelming

 4   evidence of Curshen’s guilt. But, as we have made clear, an alternative defense strategy is

 5   plausible even if unreasonable. See Schwarz, 283 F.3d at 92 (“The forgone strategy or tactic is

 6   not even subject to a requirement of reasonableness.”).

 7          The alternative rationale put forward by the Government does not support affirmance of

 8   the district court’s decision. The Government argues that Lombardino’s alleged conflict of

 9   interest could not have adversely affected the performance of Curshen’s counsel because

10   Lawrence Ruggiero, not Lombardino, represented Curshen when he decided to plead guilty. But

11   the record does not indisputably bear out this proposition. Curshen’s declaration implies that

12   Lombardino and Ruggiero provided concurrent representation and that Lombardino’s personal

13   involvement in representing Curshen ended during the period that he pleaded guilty under the

14   plea agreement. Indeed, although Curshen’s declaration suggests that his interactions with

15   counsel during the period immediately preceding his decision to plead guilty were all with

16   Ruggiero, only Lombardino’s name appears as the attorney for Curshen on the typed signature

17   line of the plea agreement. In addition, Lombardino’s associate, Marc Jelen, appeared for

18   Curshen during the plea hearing. Finally, Jelen—not Ruggiero (who appears to have served as

19   co-counsel)—signed the plea agreement. It is axiomatic that “[a]n attorney’s conflicts are

20   ordinarily imputed to his firm based on the presumption that ‘associated’ attorneys share client

21   confidences.” Hempstead Video, Inc. v. Inc. Village of Valley Stream, 409 F.3d 127, 133 (2d

22   Cir. 2005). Although this presumption is rebuttable, id. at 133, the record does not clearly reveal



                                                      5
 1   the relationship between Lombardino and Jelen, or the confidences and interests that may have

 2   been shared. Nor does the record disclose whether Ruggiero’s advice was entirely independent

 3   of Lombardino, or was influenced by conversations with the conflicted lawyer.

 4          For the foregoing reasons, we VACATE the district court’s order and REMAND for

 5   proceedings not inconsistent with this order.

 6
 7                                                   FOR THE COURT:
 8                                                   Catherine O’Hagan Wolfe, Clerk
 9
10




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