                   Not for publication in West's Federal Reporter
                  Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

             United States Court of Appeals
                           For the First Circuit

No. 02-1740

                         UNITED STATES OF AMERICA,

                                    Appellee,

                                         v.

                        CARLOS GUADALUPE-QUINONES,

                            Defendant, Appellant.


             APPEAL FROM THE UNITED STATES DISTRICT COURT

                     FOR THE DISTRICT OF PUERTO RICO

           [Hon. Juan M. Pérez-Giménez, U.S. District Judge]



                                      Before

                     Selya and Lynch, Circuit Judges,
                       and Young,* District Judge.



     Jason M. Sullivan for appellant.
     Thomas F. Klumper, Assistant United States Attorney, with
whom H.S. Garcia, United States Attorney, and Sonia I. Torres,
Assistant United States Attorney, were on brief, for appellee.



                                  May 14, 2003



     *
         Of the District of Massachusetts, sitting by designation.
           YOUNG,   District    Judge.         Defendant-appellant       Carlos

Guadalupe-Quinones ("Guadalupe-Quinones") appeals the revocation of

his supervised release and the imposition upon him of a new

sentence of imprisonment.       We affirm.        The affirmance does not

preclude Guadalupe-Quinones from pursuing an ineffective assistance

claim, if any, under 28 U.S.C. § 2255, nor does it say anything

about the merits of such a claim.

I.         BACKGROUND

           On   April   10,   1991,    a    federal    grand    jury   indicted

Guadalupe-Quinones on two drug-related counts.              Count One of the

indictment charged that on March 30, 1999, Guadalupe-Quinones and

a co-defendant, aiding and abetting each other, knowingly and

intentionally    possessed,     with        the   intent       to   distribute,

approximately forty kilograms of cocaine.             Count Two charged that

on March 30, 1999, Guadalupe-Quinones and a co-defendant, aiding

and abetting each other, knowingly and intentionally possessed

forty kilograms of cocaine while aboard an aircraft (American

Airlines Flight 1290, from Puerto Rico to New York).                 Guadalupe-

Quinones pled not guilty to both counts.                   The United States

subsequently    dismissed     Count     Two.       Guadalupe-Quinones       was

ultimately convicted by a jury on Count One.

           The district judge initially sentenced Guadalupe-Quinones

to 151 months' imprisonment and a five year term of supervised

release.   Guadalupe-Quinones subsequently submitted a motion to


                                      -2-
vacate the sentence under 28 U.S.C. § 2255.      The district judge

granted this motion and ordered that Guadalupe-Quinones be produced

for   re-sentencing.   First   Assistant   Federal   Public   Defender

Epifanio Morales-Cruz ("Morales-Cruz") was assigned to represent

Guadalupe-Quinones at the re-sentencing.

           On July 8, 1998, the Federal Public Defender, Joseph C.

Laws, Jr. ("Laws"), submitted a motion requesting leave to withdraw

or for continuance of the sentencing hearing (which was scheduled

for July 10).   In this motion, Laws explained that Morales-Cruz

(who was apparently the second-in-command in the Federal Public

Defender's office, supervised only by Laws) had been the prosecutor

who handled Guadalupe-Quinones' preliminary hearing.      Evidently,

Guadalupe-Quinones had called Morales-Cruz on the morning of July

8 to advise him of the conflict of interest, and to request that

the Federal Public Defender withdraw from representing him.       Laws

thus asked the court to permit the Federal Public Defender's office

to withdraw, or in the alternative for a continuance, explaining

that:


           Morales Cruz advises that he has no recollection of
           participating   in   Mr.   Guadalupe    Quinones'   case;
           nevertheless, any such participation in fact establishes
           a conflict in    relation to this AFPD's continued
           participation, and     possibly     conflicts out our
           appearance by reasons of appearance of impropriety by the
           remaining AFPDs in the office, who all work with and for
           Mr. Morales Cruz, who supervises them.      It should be
           noted that AFPD Edgardo Rodriguez Quilichini, who would
           eventually be tasked to represent Mr. Guadalupe Quinones


                                -3-
          in his appeal, is directly supervised by AFPD Morales
          Cruz.


          The district judge, in a margin order, granted the motion

and permitted the Federal Public Defender's office to withdraw. In

that same order, he appointed another counsel for Guadalupe-

Quinones: Raymond Rivera.    The sentencing was rescheduled until

August of 1998, at which point the judge sentenced Guadalupe-

Quinones to a 121 month term of imprisonment and five years of

supervised release.

          On March 12, 2002, the United States Probation Office

submitted a motion requesting the revocation of Guadalupe-Quinones'

supervised release term.    In this motion, the probation officer

stated that Guadalupe-Quinones had violated his standard conditions

of release by committing and being charged with local crimes

involving attempt to commit robbery and possession of a blade

weapon.   Guadalupe-Quinones had pled guilty to these two charges,

and had been sentenced by the San Juan Superior Court to four years

for the robbery offense and six months for the weapons offense, to

be served concurrently.

           On March 27, 2002, a magistrate judge issued an order

scheduling a show-cause hearing, and appointing the Federal Public

Defender to represent Guadalupe-Quinones.     On April 8, 2002, a

preliminary hearing was held; Guadalupe-Quinones was not present,

but an Assistant Federal Public Defender -- Juan Matos -- appeared


                               -4-
as his counsel.    On April 10, 2002, the magistrate judge issued a

Report and Recommendation, concluding that there were grounds to

revoke Guadalupe-Quinones' supervised release, and recommending

that the preliminary hearing be combined with the final revocation

hearing.

           A final hearing was then held on May 13, 2002, before the

same district judge who had presided over Guadalupe-Quinones'

sentencing in 1998. Guadalupe-Quinones was present and represented

by   another   Assistant   Federal   Public       Defender,   Maria   Arsuaga.

Guadalupe-Quinones was advised of his rights, and was also informed

that the probation officer had a copy of the judgment against him

for the state offenses.      Id. at 5-6.      Neither the prosecutor nor

Guadalupe-Quinones' counsel -- nor Guadalupe-Quinones himself --

reminded the district judge of the prior conflict with the Federal

Public   Defender's   office   nearly      four    years   earlier,   and   the

district judge did not inquire into it.           Guadalupe-Quinones waived

the hearing, admitted to having committed the state offenses, and

was sentenced to 60 months imprisonment to run consecutively with

the state court sentence.

           Guadalupe-Quinones now appeals this disposition, arguing

that his Sixth Amendment right to effective assistance of counsel

was violated by his counsel's (alleged) conflict of interest in

representing him.




                                     -5-
II.       DISCUSSION

          Guadalupe-Quinones argues that, having been advised of

his conflict with the Federal Public Defender's office in July

1998, the district judge should have inquired into the nature and

extent of that conflict when Guadalupe-Quinones appeared before him

-- represented by another member of the Federal Public Defender's

office -- during the supervised release revocation proceedings

nearly four years later in May 2002.       He argues that as a result of

the judge's failure to do so, he received ineffective assistance of

counsel, in violation of the Sixth Amendment.             Even assuming, for

argument's sake, that the district judge was indeed on inquiry

notice -- an assumption that would require us to conclude that a

busy   trial   judge,   unprompted,      should    have    recalled   a   not-

particularly-memorable incident that had transpired nearly four

years earlier -- this argument fails.

           It is true that under Sullivan v. Cuyler, 446 U.S. 335,

347 (1980), and Wood v. Georgia, 450 U.S. 261, 272 (1981), a trial

court that knows or reasonably should know that a particular

conflict of interest exists on the part of a criminal defendant's

counsel   --   definitely   with   respect    to    counsel's    concurrent

representation of competing interests, and perhaps with respect to

other brands of conflicts as well -- is under the duty to inquire




                                   -6-
into the conflict.1      Under the Supreme Court's recent holding in

Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237 (2002), however,

a trial judge's failure to make this mandated inquiry will not,

without   more,   require   automatic    reversal.     On   the   contrary,

automatic reversal is required "only where defense counsel is

forced to represent codefendants over his timely objection, unless

the trial court has determined there is no conflict." Mickens, 122

S.Ct. at 1242.     In other circumstances, it is "at least necessary,

to void the [disposition], for [the defendant] to establish that

the   conflict    of   interest   adversely   affected      his   counsel's

performance."     Id. at 1245.

           Despite Guadalupe-Quinones' arguments to the contrary,

his claim that a reversal is required merely because the district

judge failed to inquire into a conflict about which he knew or

should have known is foreclosed by Mickens.          Only by establishing

that the alleged conflict of interest adversely affected his

counsel's performance can Guadalupe-Quinones prevail in his attempt

to set aside the result of this proceeding.          See United States v.



      1
      Sullivan and Wood both arose within the context of a conflict
relating to defense counsel's concurrent representation of
competing interests. See Sullivan, 446 U.S. at 337; Wood, 450 U.S.
at 266-67. In Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237,
1245-46 (2002), the Supreme Court noted that "the Federal Rules of
Criminal Procedure treat concurrent representation and prior
representation differently," and stated that the extent to which
there is a duty to inquire with respect to conflicts arising from
circumstances other than concurrent representation is "an open
question."

                                   -7-
Newton,      F.3d      , 2003 WL 1826135, *9 (1st Cir. 2003) (stating

that in Mickens, "the Supreme Court expressly rejected a rule of

automatic reversal in cases where a defense attorney's conflict of

interest does not adversely affect counsel's performance").

            No facts have been developed as to whether there was any

adverse effect. The Supreme Court has recently affirmed the wisdom

of this circuit's rule that where facts need to be developed on a

claim of ineffective assistance of counsel, the claim should be

brought by petition for post-conviction relief and the facts should

be developed by the trial judge.        See Massaro v. United States, No.

01-1559, 2003 WL 1916677 (April 23, 2003).

            Accordingly, we affirm the judgment below.              Guadalupe-

Quinones is not, however, precluded from pursuing an ineffective

assistance claim under 28 U.S.C. § 2255, and we do not speak to the

merits of any such claim.        If Guadalupe-Quinones does pursue such

a claim, and demonstrates his indigence, we direct the district

court to appoint counsel for him.           See 18 U.S.C. § 3006A(a)(2)(B)

(stating    that     if   "the   interests     of   justice    so     require,

representation may be provided [under the Criminal Justice Act] for

any financially eligible person who . . . is seeking relief under

section . . . 2255 of Title 28"); see also United States v. Mala,

7   F.3d   1058,    1063-64   (1st   Cir.   1993)   (holding   that    because

appellant had presented a colorable claim that was factually

complex and legally intricate, and was severely hampered in his


                                      -8-
ability to investigate the undeveloped facts, the interests of

justice supported the appointment of counsel if Section 2255 relief

was pursued).   As in Mala, we conclude that the interests of

justice militate in favor of appointing counsel for appellant

should he pursue habeas relief, given the colorability of his

claim, its heavily fact-specific nature, and his inability to

investigate those facts while in prison.

III.      CONCLUSION

          Accordingly,   we   affirm   the   judgment   below,   without

prejudice to Guadalupe-Quinones' right to raise his ineffective

assistance of counsel claim in a proceeding brought under 28 U.S.C.

§ 2255.   Should he pursue this course, the district court is

instructed to appoint counsel for him, subject to the strictures of

the Criminal Justice Act.

          SO ORDERED.




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