    Case: 17-10376    Document: 00515017967     Page: 1   Date Filed: 07/01/2019




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                 No. 17-10376                         July 1, 2019
                                                                    Lyle W. Cayce
                                                                         Clerk


UNITED STATES OF AMERICA,

                  Plaintiff–Appellee,

versus

GLORIA ANN PALACIOS,

                  Defendant–Appellant.




                Appeal from the United States District Court
                     for the Northern District of Texas




Before SMITH, WIENER, and ELROD, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Gloria Palacios pleaded guilty of conspiracy to possess with intent to dis-
tribute a controlled substance. After the district court dismissed her untimely
direct appeal, Palacios moved for relief per 28 U.S.C. § 2255 (2012), contending,
inter alia, that trial counsel had rendered ineffective assistance because of a
conflict of interest. The court denied that motion, declining to hold a hearing
on the conflict-of-interest claim. Finding no error, we affirm.
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                                  No. 17-10376

                                        I.
      In September 2015, Palacios was indicted in the Northern District of
Texas for conspiracy to possess with intent to distribute fifty grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 846.
Palacios was represented by Mark Fernandez. According to Palacios, her
cousin Francisco “Pancho” Gallegos—who was later indicted in the Northern
District for his role in a related drug conspiracy—hired Fernandez to represent
her. Palacios claims that she was “personally present” when Gallegos “deliv-
ered cash to her attorney for future representation.” She also asserts that Gal-
legos transferred real property to Fernandez as further payment for his repre-
sentation of Palacios.

      On October 16, 2015, the district court held a rearraignment hearing, at
which Palacios acknowledged, under oath, that, inter alia, (1) she was satisfied
with Fernandez’s legal representation, (2) she had no complaints whatsoever
with any actions Fernandez had taken or failed to take, and (3) her decision to
plead guilty was knowing and voluntary. The district court accepted her guilty
plea, finding that Palacios was “fully competent and capable of entering an
informed plea, and that her plea of guilty . . . [was] a knowing and voluntary
plea supported by an independent basis in fact containing the essential ele-
ments of that offense, and that such plea did not result from force, threats, or
promises.”

      In preparation for sentencing, Palacios and Fernandez met with the
probation officer. During the meeting Palacios repeatedly implicated Gallegos
as the organizer of the conspiracy. Fernandez did not object or otherwise
attempt to interfere. Following the interview, the probation officer declined to
apply the three-level reduction for acceptance of responsibility, finding that
Palacios had minimized her role in the offense throughout the interview.


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      In February 2016, the district court sentenced Palacios to 480 months’
imprisonment and four years’ supervised release. At the sentencing hearing,
the court informed Palacios that she had “the right to make any statement or
presentation . . . on the subject of mitigation”—i.e., to speak on any subject that
she felt the court should be aware of when determining what sentence to
impose. Palacios stated,
         Your Honor, my name is Gloria Palacios. I’m from Dallas,
      Texas, and I just want to say that I’m sorry for any inconvenience
      I’ve caused. I wasn’t emotionally and financially stable at the time
      the situation happened, and I just ask that you give me another
      opportunity to be with my kids and my family, and I’m sorry for
      everything. Thank you.
Palacios made no mention of her counsel’s alleged conflict.

      After sentencing, Palacios sent Fernandez a letter expressing a desire to
terminate him as counsel. The letter made no mention of any conflict of inter-
est. Palacios then filed an untimely direct appeal with this court. We issued
two orders. First, “we remand[ed] . . . for a determination whether the un-
timely filing of the notice of appeal was due to excusable neglect or good cause.”
Second, we granted Fernandez’s motion to withdraw as Palacios’s counsel. The
district court determined that Palacios had failed to show excusable neglect or
good cause.

      Palacios then filed a § 2255 motion asserting four grounds. First, that
trial counsel provided ineffective assistance of counsel (“IAC”) by failing ade-
quately to explain relevant conduct and the use of that conduct at sentencing.
Second, that Fernandez provided IAC at sentencing by failing to challenge
various enhancements recommended in the presentence report (“PSR”). Third,
that counsel provided IAC because he labored under a conflict of interest. And
fourth, that Fernandez provided IAC by failing to file a direct appeal, despite
being instructed to do so. The district court denied Palacios’s first three claims

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without a hearing, finding that they were meritless, but held a hearing on the
fourth. 1

       At the evidentiary hearing, Palacios’s court-appointed attorney, Danny
Burns, called her to testify. The court permitted Burns to ask Palacios several
questions regarding the circumstances of Fernandez’s hiring as well as his
alleged conflict of interest, even though the topic was arguably outside the
scope of the hearing. Palacios was also permitted to testify concerning her
supposed desire to cooperate further with the government and Fernandez’s
alleged refusal to let her do so.

       The government called Fernandez, who stated, unequivocally, that Pala-
cios never asked him to file an appeal. Although permitted to cross-examine
Fernandez, Burns declined to ask him any questions concerning the circum-
stances of his hiring or his alleged conflict of interest, despite the court’s earlier
willingness to allow Burns to proceed on a similar line of questioning.

       The district court affirmed its denial of the first three claims and denied
the fourth as well, determining that it, too, was without merit. The court de-
clined to grant a certificate of appealability (“COA”).

       Palacios sought from this court a COA on her conflict-of-interest and
failure-to-appeal claims. We granted a COA on the conflict-of-interest claim
only, concluding that Palacios had failed to make “a showing of debatable


       1 As part of its response to Palacios’s § 2255 motion, the government included a sworn
affidavit from Fernandez, disputing her claims. Concerning his initial retainer by Palacios,
Fernandez stated, in relevant part,
       I was retained by Ms. Palacio’s [sic] state attorney who had received a retainer
       to cover legal services for Ms. Palacios. Since the state attorney does not take
       federal cases she retained me to represent Ms. Palacios. After visiting Ms.
       Palacios and her being aware of who hired me, she agreed to my representa-
       tion. The state attorney has only represented Ms. Palacios and there’s no indi-
       cation that she ever represented any co-defendants associated with Ms.
       Palacios.
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entitlement to relief” on her failure-to-appeal claim. Palacios appeals pro se.

                                        II.
      “Under the Sixth Amendment, if a defendant has a constitutional right
to counsel, he also has a corresponding right to representation that is free from
any conflict of interest.” United States v. Infante, 404 F.3d 376, 389 (5th Cir.
2005) (citation omitted). IAC claims are generally governed by the standard
in Strickland v. Washington, 466 U.S. 668, 687 (1984). That standard “requires
a showing that counsel’s performance was deficient, in that it fell below an
objective standard of reasonableness, as well as a showing of prejudice, which
is defined as a reasonable probability that counsel’s error changed the result
of the proceeding.” Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000). When
a defendant alleges that counsel’s “conflict of interest stem[s] from “multiple
representation,” rather than . . . “from a conflict between the attorney’s per-
sonal interest and that of his client,” Infante, 404 F.3d at 391 (citation omitted),
our analysis is governed by Cuyler v. Sullivan, 446 U.S. 335, 348–50 (1980).

      To succeed on an IAC claim under Sullivan, a defendant must demon-
strate that his counsel labored under “an actual conflict of interest that ad-
versely affected his performance at trial.” Infante, 404 F.3d at 391. This is a
fact-intensive inquiry. Id. at 392. “An ‘actual conflict’ exists when defense
counsel is compelled to compromise his or her duty of loyalty or zealous advo-
cacy to the accused by choosing between or blending the divergent or competing
interests of a former or current client.” Perillo, 205 F.3d at 781. An “[a]dverse
effect may be established with evidence that some plausible alternative
defense strategy or tactic could have been pursued, but was not because of the
actual conflict impairing counsel’s performance.” Id. (internal quotation marks
and citation omitted).

      Nonetheless, “the Sullivan standard is not properly read as requiring

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inquiry into actual conflict as something separate and apart from adverse
effect. An ‘actual conflict,’ for Sixth Amendment purposes, is a conflict of
interest that adversely affects counsel’s performance.”        Mickens v. Taylor,
535 U.S. 162, 172 n.5 (2002). Ultimately, if a defendant successfully “estab-
lishes an actual conflict that adversely affected counsel’s performance,” then
“prejudice is presumed without any further inquiry into the effect of the actual
conflict on the outcome of the defendant’s trial.” Perillo, 205 F.3d at 781–82.

      Palacios’s conflict-of-interest claim is analyzed in light of her guilty plea.
“A voluntary guilty plea waives all nonjurisdictional defects in the proceedings
against the defendant.” United States v. Glinsey, 209 F.3d 386, 392 (5th Cir.
2000); see also Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983). Moreover,
“[s]olemn declarations in open court carry a strong presumption of verity.”
Blackledge v. Allison, 431 U.S. 63, 74 (1977). Therefore, “[w]hen a criminal
defendant has solemnly admitted in open court that he is in fact guilty of the
offense with which he is charged, he may not thereafter raise independent
claims relating to the deprivation of constitutional rights that occurred prior
to the entry of the guilty plea.” United States v. Smallwood, 920 F.2d 1231,
1240 (5th Cir. 1991) (citation omitted). This includes all IAC claims “except
insofar as the ineffectiveness is alleged to have rendered the guilty plea invol-
untary.” Glinsey, 209 F.3d at 392.

                                        III.
      “We review the district court’s denial of § 2255 relief de novo, and its
denial of an evidentiary hearing for abuse of discretion.” United States v. Allen,
918 F.3d 457, 460 (5th Cir. 2019). “A § 2255 motion requires an evidentiary
hearing unless either (1) the movant’s claims are clearly frivolous or based
upon unsupported generalizations, or (2) the movant would not be entitled to
relief as a matter of law, even if his factual assertions were true.” Id. (citation

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omitted).

                                            A.
      Palacios asserts that Fernandez violated her Sixth Amendment right to
conflict-free counsel because he was paid by her cousin Gallegos. 2 Palacios
states that she wished to cooperate with the government by providing informa-
tion about her distributor (Gallegos) but that Fernandez refused to allow her
to do so. Consequently, Palacios avers, “Fernandez placed his own financial
interest before his client’s . . . liberty interest.”

      Palacios cites several Supreme Court and Fifth Circuit precedents. She
invokes Infante for the proposition that “[a] conflict [of interest] exists when
defense counsel places himself in a position conducive to divided loyalties.”
404 F.3d at 392 (second alteration in original) (citations omitted). Palacios also
cites Beets v. Scott, 65 F.3d 1258 (5th Cir. 1995) (en banc), in which we stated
that “prejudice is presumed if the defendant shows that an actual conflict of
interest adversely affected his lawyer’s performance.” Id. at 1265. Finally,
Palacios highlights Wood v. Georgia, 450 U.S. 261 (1981), which held that a
conflict of interest may arise when an employee is represented by his em-
ployer’s lawyer, id. at 271–72, particularly if “counsel was influenced in his
basic strategic decisions by the interests of the employer who hired him,” id.
at 272. In light of this precedent, Palacios asks us to vacate and remand for
an evidentiary hearing.

      The government makes two responses. First, it contends that “Palacios
waived the conflict-of-interest claim because she pled guilty despite purport-



      2  Confusingly, Palacios claims that Gallegos paid Fernandez by transferring real
property to him, while also contending that Gallegos “went through Angel Mata to pay Mark
Fernandez.” Mata was initially retained to represent Palacios on unrelated charges in state
court.
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edly knowing of the alleged conflict.” Second, the government maintains that,
even assuming arguendo that her claim is not waived, Palacios fails to support
it with anything other than conclusional and unsubstantiated allegations.

                                       B.
      The government has the better argument. With respect to waiver, Pala-
cios contends that “[b]ut for counsels [sic] unprofessional behavior the result of
the proceedings would have been different [and] she would have pled not
guilty.” Her testimony at sentencing and at the § 2255 evidentiary hearing,
however, belies such a notion. Although given ample opportunity at both
hearings, Palacios never asserted that the alleged conflict somehow rendered
her guilty plea involuntary.

      In fact, the record plainly demonstrates that the plea was both knowing
and voluntary. As the district court noted in denying Palacios’s § 2255 motion,
      Movant was placed under oath and, among other things, stated
      that she understood that she was waiving her right to trial; she
      was satisfied with her attorney and did not have any complaint
      whatsoever; her plea was based on actual guilt and was made
      knowingly, voluntarily, and without pressure or coercion; she did
      not have any deal, understanding, or agreement and that no one
      had made any promise to her to induce her to enter a guilty
      plea; . . . she would not be permitted to withdraw her plea if her
      sentence was higher than she expected; [and] she committed each
      element of the offense charged . . . .
“[A] defendant ordinarily will not be heard to refute her testimony given at a
plea hearing while under oath.” United States v. Cervantes, 132 F.3d 1106,
1110 (5th Cir. 1998).

      A defendant waives a conflict-of-interest claim when he voluntarily
pleads guilty. United States v. Tijerina, No. 00-41365, 2002 WL 760264, at *1
(5th Cir. Apr. 15, 2002) (per curiam) (unpublished). Consequently, the district
court did not abuse its discretion in denying Palacios a second evidentiary

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hearing and did not err in denying her § 2255 motion. 3 The judgment is
AFFIRMED.




       3 Moreover, we “may affirm . . . on any grounds supported by the record.” Palmer v.
Waxahachie Indep. Sch. Dist., 579 F.3d 502, 506 (5th Cir. 2009) (citation omitted). Accord-
ingly, even if Palacios had not waived this issue, our conclusion would be unchanged. When
“the movant’s claims are clearly frivolous or based upon unsupported generalizations,” an
evidentiary hearing is not required. Allen, 918 F.3d at 460 (citation omitted). Palacios’s
allegation that Fernandez labored under a conflict of interest is wholly unsubstantiated.
       For example, in her § 2255 motion, Palacios claimed that she personally witnessed
Gallegos deliver cash to Fernandez and transfer title to his house as payment for Fernandez’s
representation of Palacios. On appeal, however, Palacios contends that the transaction was
actually funneled through her state attorney, Angel Mata. It is therefore unsurprising that
the district court chose to credit the sworn affidavit of Fernandez, who stated that he was
retained by Mata because she did not represent federal defendants. Fernandez also stated
that “[Mata] has only represented Ms. Palacios and there’s no indication that she ever repre-
sented any co-defendants associated with Ms. Palacios.”
        Additionally, when Palacios met with the probation office in preparation for sen-
tencing, Fernandez was present. Although Palacios repeatedly implicated Gallegos as an
organizer of the conspiracy, there is no evidence suggesting that Fernandez prevented Pala-
cios from sharing any information with probation or that he attempted to interfere in any
way.
        Lastly, “[s]olemn declarations in open court carry a strong presumption of verity,
forming a formidable barrier in any subsequent collateral proceedings.” Cervantes, 132 F.3d
at 1110 (internal quotation marks and citation omitted). During her plea colloquy, the dis-
trict court asked Palacios whether she was satisfied with the legal representation she re-
ceived from Fernandez. She answered, “Yes, sir.” The court also asked whether she had “any
complaint whatsoever with anything [Fernandez did] or failed to do” while serving as her
attorney. Palacios answered, “No, sir.”
       Considering this evidence, Palacios fails to provide support for her allegation that
Fernandez labored under “an actual conflict of interest that adversely affected his per-
formance at trial.” Infante, 404 F.3d at 391. Therefore, this alternative basis also supports
a finding that the district court did not abuse its discretion in denying a second evidentiary
hearing and did not err in denying Palacios’s § 2255 motion.
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