          Case: 18-11624   Date Filed: 01/16/2020   Page: 1 of 10


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-11624
                        Non-Argument Calendar
                      ________________________

   D.C. Docket Nos. 2:15-cv-00030-LGW-RSB; 2:14-cr-00012-LGW-RSB-4



WESTLEY KAYEON KENNEDY,

                                                         Petitioner-Appellant,

                                versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.

                      ________________________

               Appeal from the United States District Court
                  for the Southern District of Georgia
                     ________________________

                           (January 16, 2020)

Before WILSON, ROSENBAUM, and MARCUS, Circuit Judges.

PER CURIAM:
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      Westley Kayeon Kennedy, aka “K.K.”, a counseled federal prisoner serving a

240-month sentence for conspiracy to possess with intent to distribute and intent to

distribute methamphetamine and quantities of cocaine and oxycodone, appeals the

denial of his pro se 28 U.S.C. § 2255 motion to vacate. On appeal, Kennedy argues

(1) that his Sixth Amendment right to conflict-free counsel was violated because his

trial counsel, B. Reid Zeh III, also represented Tawan Carter, who had identified a

“K.K.” as a distributor of methamphetamine; (2) that the magistrate judge erred by

relying on materials outside the files and records of the case to recommend denying

his § 2255 motion without first holding an evidentiary hearing; and (3) that the

government and his attorney violated his right to due process by failing to observe

adversarial norms.1 We address each argument in turn.

                                                  I.

      In a § 2255 proceeding, we review legal issues de novo and factual findings

for clear error. Thomas v. United States, 572 F.3d 1300, 1303 (11th Cir. 2009).

Claims involving a counsel’s conflict of interest present mixed questions of law and

fact that are reviewed de novo. Reynolds v. Chapman, 253 F.3d 1337, 1342 (11th

Cir. 2001). However, where, as here, a party fails to object to a magistrate judge’s

report and recommendation, the party waives the right to challenge on appeal the




      1
          The district court granted a certificate of appealability on the same issues.


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district court’s order, though we may review an appeal for plain error, if necessary,

in the interests of justice. 11th Cir. R. 3-1.

      “Under plain error review, a party must show (1) an error occurred; (2) the

error was plain; (3) the error affected substantial rights; and (4) failure to correct the

error would seriously affect the fairness of the judicial proceeding.” Vista Mktg.,

LLC v. Burkett, 812 F.3d 954, 975 (11th Cir. 2016) (quotation marks omitted). We

may affirm the district court’s judgment on any basis supported by the record. Fla.

Wildlife Fed'n Inc. v. United States Army Corps of Engineers, 859 F.3d 1306, 1316

(11th Cir. 2017).

      Generally, to demonstrate that a counsel’s performance was so defective that

it was constitutionally deficient and requires reversal, a defendant must allege facts

showing that (1) his “counsel made errors so serious that counsel was not functioning

as the ‘counsel’ guaranteed by the Sixth Amendment”; and (2) “the deficient

performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687

(1984). The right to effective assistance of counsel “includes the right to counsel

who is unimpaired by conflicting loyalties.” Duncan v. Alabama, 881 F.2d 1013,

1016 (11th Cir. 1989).

      To demonstrate ineffective assistance of counsel based on a conflict of

interest, a § 2255 petitioner must show that counsel had an actual conflict of interest

and that the conflict adversely affected counsel's performance. Pegg v. United



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States, 253 F.3d 1274, 1277 (11th Cir. 2001). “Only when a defendant shows that

his counsel actively represented conflicting interests does he establish an actual

conflict under the Sixth Amendment.” Quince v. Crosby, 360 F.3d 1259, 1264 (11th

Cir. 2004). That fact-specific inquiry requires the defendant to make a factual

showing of inconsistent interests or point to specific instances in the record to

suggest an actual impairment of his interests. Id. A mere speculative, hypothetical,

or possible conflict of interest is insufficient to establish an ineffective-assistance

claim. Id. To prove adverse effect, the “petitioner must show: (1) the existence of

a plausible alternative defense strategy or tactic that might have been pursued; (2)

that the alternative strategy or tactic was reasonable under the facts; and (3) a link

between the actual conflict and the decision to forgo the alternative strategy of

defense.” Pegg, 253 F.3d at 1278. In the guilty-plea context, we look to whether

the attorney’s actual conflict adversely affected the defendant’s decision to plead

guilty. Id.

      We find that the district court did not err, plainly or otherwise, in concluding

that Kennedy’s Sixth Amendment right to conflict-free counsel was not violated.

As an initial matter, Kennedy has failed to show an actual conflict of interest.

Instead, Kennedy has alleged, at most, that Zeh knew or should have known that

Kennedy was the “K.K.” that Carter was informing upon. After all, the underlying

criminal indictment referred to Kennedy as “K.K.,” Kennedy’s presentence



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investigation report (the “PSI”) listed Carter’s case as related and included Carter’s

incriminating statements against Kennedy—which would not have been relevant

unless Kennedy and “K.K.” were one and the same, and Kennedy conceded during

his change of plea hearing that he is sometimes known as “K.K.”

      It is also undisputed that on May 30, 2013, Carter told DEA agents that he

delivered methamphetamine to “K.K.” during the preceding months, that Carter pled

guilty to conduct unrelated to Kennedy’s, on November 18, 2013 (United States v.

Cruz, No. 2:13-cr-34 (S.D. Ga. Aug. 7, 2013)), and that Carter was sentenced on

June 25, 2014. So it cannot be disputed that Zeh simultaneously represented both

Carter and Kennedy for three months between April 11, 2014, when Zeh was

appointed counsel for Kennedy, and June 25, 2014, when Carter was sentenced.

      While all of that indicates the potential for a conflict of interest, that alone is

insufficient. First, it is not “per se violative of constitutional guarantees of effective

assistance of counsel” for Zeh to have simultaneously represented Carter and

Kennedy. See Holloway v. Arkansas, 435 U.S. 475, 482 (1978). Second, it is not

enough for Kennedy to theorize that, for example, Zeh might have sacrificed

Kennedy’s plea-negotiation position to somehow benefit Carter. Rather, Kennedy

was required to make specific factual allegations that suggested inconsistent interests

or impairment of representation based on the alleged conflict. Kennedy’s bald

assertions that Zeh’s routine litigation decisions were tainted by his representation



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of Carter do not meet that standard. 2 See McConico v. State of Ala., 919 F.2d 1543,

1546 (11th Cir. 1990) (“Appellant must . . . demonstrate that the attorney made a

choice between possible alternative courses of action . . . helpful to one client but

harmful to the other.”).

       Nor does anything in the record shows that the asserted conflict of interest

adversely affected Zeh’s representation of Kennedy or Kennedy’s decision to plead

guilty. In fact, the record supports the opposite conclusion: that Kennedy benefitted

by pleading guilty instead of going to trial. Putting aside Carter’s testimony, the

government’s evidence against Kennedy was overwhelming—multiple witnesses

identified Kennedy as a distributor of controlled substances and the government

intercepted dozens of telephone calls and text messages involving Kennedy wherein

illegal drug activities were discussed. Further, Kennedy’s guilty plea allowed him

to have a lower sentencing exposure—limiting the advisory guideline range to the

240-month statutory maximum from a maximum of 120 years’ imprisonment if

convicted on each count—spared him a possible sentencing enhancement, pursuant

to 21 U.S.C. § 851, and allowed him to pursue an acceptance-of-responsibility

reduction without the government’s objection. Finally, Kennedy admitted that he

was not coerced to plead guilty and was in fact guilty, and he has not recanted those


       2
         The government submitted Zeh’s affidavit in support of its opposition to Kennedy’s
§ 2255 motion. Because Kennedy’s allegations do not rise above the theoretical conclusory, we
need not rely on the contents of Zeh’s affidavit to affirm.


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admissions. In short, while proceeding to trial may have been a plausible alternative

strategy, it certainly would have exposed Kennedy to significant risks he avoided by

pleading guilty.

       Nor has Zeh pointed to anything in the record that establishes (or even

suggests) a “link” between Zeh’s purported external loyalties and Kennedy’s

decision to plead guilty—a decision that Kennedy testified was uncoerced.

       Kennedy has therefore failed to demonstrate that the district court plainly

erred in finding that there was no violation of Kennedy’s Sixth Amendment right to

conflict-free counsel.3 Accordingly, we affirm the district court’s judgment.

                                               II.

       We ordinarily review the denial of an evidentiary hearing in a § 2255

proceeding for abuse of discretion. See Winthrop-Redin v. United States, 767 F.3d

1210, 1215 (11th Cir. 2014). However, here, because Kennedy failed to object to

the magistrate judge’s report and recommendation, we review for plain error.

11th Cir. R. 3-1. To be entitled to a § 2255 hearing, the movant must at least allege

credible non-conclusory facts that, if true, would support his claim for relief.

Winthrop-Redin, 767 F.3d at 1216. A hearing is not required on frivolous claims or



       3
          Though an attorney’s failure to inform the court or his client about a potential conflict
does not amount to a per se violation of the Sixth Amendment, United States v. Novaton, 271 F.3d
968, 1012 n.12 (11th Cir. 2001), we take this opportunity to emphasize yet again that in
circumstances similar to those presented here, counsel should inform his clients and the presiding
courts of the circumstances surrounding the potential conflict of interest. See id.


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generalizations wholly unsupported or contradicted by the record. Id. Because

Kennedy has made no non-frivolous claims and has instead relied entirely on

generalizations that are unsupported or contradicted by the record, the district court

did not plainly err by not holding an evidentiary hearing before recommending the

denial of Kennedy’s § 2255 motion.4

                                             III.

      Finally, we turn to Kennedy’s argument, raised for the first time on appeal,

that his attorney and the government violated his right to due process by failing to

observe adversarial norms. 5 We review questions of constitutional law de novo.

United States v. Whatley, 719 F.3d 1206, 1213 (11th Cir. 2013). We do not

ordinarily consider issues that were not before the district court. Access Now, Inc.

v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004). And though we

may exercise discretion to do so in limited circumstances, see id. at 1332

(enumerating exceptions), Kennedy has not argued any such circumstances are

present here. So we could affirm on that basis alone. Nevertheless, we briefly

review the merits of Kennedy’s claim.



       4
           Though, on direct appeal, we stated that “the record [was] not sufficiently developed to
allow meaningful review of Kennedy’s conflict of interest argument,” we did not require the
district court to hold an evidentiary hearing before disposing of Kennedy’s ineffective-assistance
claim. See United States v. Kennedy, 674 F. App’x 977 (2017).
         5
           Kennedy’s amended § 2255 motion did contend that Zeh failed to dedicate sufficient
resources to put on an adversarial challenge to the government’s proof. But Kennedy does not
pursue that contention on appeal.


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      As a preliminary matter, Kennedy’s due-process claim must fail because it is

a repackaged Sixth Amendment claim. “Where a particular amendment provides an

explicit textual source of constitutional protection against a particular sort of

government behavior, that amendment . . . must be the guide for analyzing [such]

claim[s],” rather than the more generalized notion of due process. Albright v. Oliver,

510 U.S. 266, 273 (1994) (quotation marks omitted) (discussing substantive due

process); United States v. Hano, 922 F.3d 1272, 1288 (11th Cir. 2019), cert. denied,

No. 19-6053, 2019 WL 5686692 (U.S. Nov. 4, 2019) (extending to procedural due

process). The gravamen of Kennedy’s argument is that he was deprived of effective

assistance because Zeh was working for the government, rather than Kennedy, or

otherwise failed to rigorously defend Kennedy from the pending criminal charges.

So it is the Sixth Amendment, and not the Due Process Clause, that we look to here.

      True, a counsel’s complete failure to subject the prosecution’s case to

meaningful adversarial testing can rise to the level of a Sixth Amendment violation.

See United States v. Cronic, 466 U.S. 648, 659 (1984). But nothing in the record

suggests that’s the case here. Zeh represented Kennedy throughout the criminal

proceedings and filed a bevy of motions, and Kennedy admitted that he was neither

coerced to plead guilty nor unsatisfied with his representation. Zeh objected on

numerous grounds to Kennedy’s PSI, and the probation officer incorporated some

of those objections in an amended PSI and excluded those contested issues from the



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advisory guideline calculation.6           Moreover, Zeh maintained two objections at

Kennedy’s sentencing hearing, one of which resulted in the district court’s granting

Kennedy an acceptance of responsibility reduction. With no countervailing specific

factual allegations, we cannot say that Zeh’s performance so undermined the proper

functioning of the adversarial process that the process cannot be relied on as having

produced a just result. See Strickland, 466 U.S. at 686; Cronic, 466 U.S. at 659.

       We have also considered Kennedy’s other contentions related to this issue and

conclude that they lack merit.

                                                IV.

       For the foregoing reasons, the district court did not err, plainly or otherwise,

in denying Kennedy’s § 2255 motion.

       AFFIRMED.




       6
          Zeh also initially objected to certain of the intercepted telephone conversations involving
Kennedy wherein illegal drug activities were discussed. However, after having the opportunity to
listen to those calls, Zeh and Kennedy withdrew those objections. In fact, the court subsequently
awarded Kennedy the acceptance of responsibility based on his forthright withdrawal of these
objections.


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