[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUL 11, 2006

THOMAS K. KAHN

N o . 05-15568

CLERK

N o n - A r g u m e n t Calendar

D . C. Docket Nos. 04-21663-CV-UUB

0 2 -2 0 2 0 6 -C R -U U B

C A R M E N G. CRUZ,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

A p p e al from the United States District Court

fo r the Southern District of Florida

(J u ly 11, 2006)

B efo re DUBINA, CARNES and PRYOR, Circuit Judges.

P E R CURIAM:

F ed eral prisoner Carmen Cruz, proceeding pro se, appeals the district court's d en ial of her 28U.S.C. § 2255 motion to vacate, set aside, or correct her sentence.

The district court granted a certificate of appealability ("COA") on the issue of "w h eth er [Cruz] was denied the effective assistance of counsel."1 Cruz argues on ap p eal that Joseph Bevilacqua ("Bevilacqua"), an attorney with a firm representing b o th her and her co-defendant Vincent Capaldi ("Capaldi"), provided her with leg al advice and was ineffective by misrepresenting matters regarding the decision to plead guilty and failing to properly investigate the case. Cruz contends that B ev ilacq u a persuaded her to plead guilty so she would not reveal information ab o u t Bevilacqua's personal problems with drugs. Cruz argues that she does not h a v e to demonstrate prejudice because an actual conflict existed. Cruz also argues th a t Bevilacqua failed to investigate her case and did not inform her of defenses sh e could have presented at trial.

In response, the government contends that Cruz is procedurally barred from raisin g her claim of conflict of counsel for the first time in her § 2255 motion b e c au s e she knew about the conflict at the time of the Garcia 2 hearing and did not raise it in on direct appeal. The government also argues that Cruz waived her right to conflict-free counsel by choosing to have counsel from the same firm as cod efen d an t Capaldi after being informed of the dangers of this conflict by the d istrict court.

I.

In federal habeas appeals based on claims of ineffective assistance of c o u n s el, we review the district court's findings of fact for clear error and its legal co n clu sio n s and mixed questions of law and fact de novo. Fugate v. Head, 261 F .3 d 1206, 1215 (11th Cir. 2001).

A. Procedural Default "U n d e r the procedural default rule, a defendant generally must advance an av ailab le challenge to a criminal conviction or sentence on direct appeal or else the d e f en d a n t is barred from presenting that claim in a § 2255 proceeding." Lynn v. U n ite d States, 365 F.3d 1225, 1234 (11th Cir. 2004). The Supreme Court has held th a t "an ineffective-assistance-of-counsel claim may be brought in a collateral p ro ceed in g under § 2255, whether or not the petitioner could have raised the claim o n direct appeal." Massaro v. United States, 538 U.S. 500, 504, 123 S. Ct. 1690, 1 6 9 4 , 155 L. Ed. 2d 714 (2003). We generally will not consider on direct appeal c la im s of ineffective assistance of counsel if the district court neither entertained th e claims nor developed a factual record. United States v. Bender, 290 F.3d 1279, 1 2 8 4 (11th Cir. 2002).

The record demonstrates that Cruz concedes that she knew about B ev ilacq u a's drug activities with Capaldi when her case was in the district court, yet she failed to inform the court at the time. Cruz noted in her motion for su b stitu tio n of counsel before sentencing in the district court that her relationship w ith counsel had deteriorated, but did not elaborate on the circumstances or d ev elo p a factual record in the district court regarding an ineffective assistance of c o u n s el that would have allowed for meaningful review. Because Massaro states th at an ineffective assistance of counsel claim will not be defaulted even if it could h a v e been raised on direct appeal, and because the record in the district court was n o t developed on the full scope of Cruz's ineffective assistance claim to allow for m ean in g fu l review, we hold that the district court properly found that Cruz did not p ro ced u rally default her ineffective assistance of counsel claim by failing to raise it in her direct appeal.

B . Waiver A criminal defendant's right to effective assistance of counsel is violated w h ere the defendant's attorney has an actual conflict of interest that affects the d efen d an t adversely. United States v. Rodriguez, 982 F.2d 474, 477 (11th Cir. 1 9 9 3 ). We have explained the process by which a criminal defendant may waive th e right to conflict-free counsel: A defendant may waive this right by choosing to proceed to trial with an attorney who has an adverse conflict of interest. . . . A d e te rm in a tio n that defendants have waived the right to conflict-free c o u n s el disposes of the need to evaluate the actual or potential in effectiv en ess of counsel caused by the alleged conflicts of interest.

The determination of whether there has been an intelligent waiver of rig h t to counsel must depend, in each case, upon the particular facts an d circumstances surrounding the case, including the background, ex p erien ce, and conduct of the accused. . . .

A defendant's waiver must be established by clear, unequivocal, and u n a m b ig u o u s language. The record should show, in some way, that th e defendant was aware of the conflict of interest; realized the c o n f lic t could affect the defense; and knew of the right to obtain other c o u n s e l.

Id. (quotations and citations omitted). While the court should seek to elicit a n arrativ e response from the defendant, "[m]ere assent in response to a series of q u estio n s from the bench may in some circumstances constitute an adequate w a iv e r ." Garcia, 517 F.2d at 278.

W e conclude from the record that the district court was correct in finding th at Cruz waived the right to conflict-free counsel and agreed to proceed with c o u n s el from the same firm that represented Capaldi. At the Garcia hearing, the co u rt explained to Cruz that having the same law firm represent her and Capaldi co u ld lead to favoritism of one client over another and inhibit her ability to co m m u n icate freely with counsel. The court explicitly informed her that she had a r ig h t to independent counsel. The court also inquired as to whether she had been g iv en any assurances or coerced into having the same representation. Cruz assen ted that she understood these concerns and wished to have Bevilacqua's and Jo h n Cicilline's law firm represent her. The district court correctly found that the G a rcia hearing informed Cruz of the conflict, of how the conflict could affect her d efen se and of her right to independent counsel.

Under Rodriguez, this waiver forecloses appellate review of any effective assistan ce of counsel claim arising out of the conflict of interest of Cruz and C ap ald i having counsel from the same law firm. Rodriguez, 982 F.2d at 477. This w a iv e r encompasses any claim by Cruz that Bevilacqua acted as her counsel in stead of Cicilline.

Although the majority of Cruz's claims in her § 2255 motion allege that her c o u n s el was ineffective due to the conflict arising from his desire to keep in f o r m a tio n about his personal behavior quiet, a review of the Garcia hearing and C ru z's pleadings reveals that she was also aware of this conflict at the time of the h earin g and the various ways it could affect her defense, and that she had a right to in d e p e n d e n t counsel. Cruz stated in her § 2255 motion that Bevilacqua knew that s h e was aware of his illegal behavior with Capaldi and failed to advise her of her rig h t to independent counsel because of it. Cruz claimed that Bevilacqua co n v in ced her to plead guilty out of concern of keeping this information secret.

Cruz stated in her § 2255 motion and her brief on appeal that Bevilacqua assured h er that the information would not become public if she pled guilty. Thus, Cruz ad m its that she was aware of the conflict and that her knowledge of the information ab o u t Bevilacqua was affecting his legal advice.

While the Garcia hearing was not framed to deal with the specific conflict at issu e here, the court did inform Cruz during the hearing that she had the right to e ff ec tiv e assistance of counsel and to an independent lawyer. Thus, the record s u p p o r ts the district court's finding that Cruz also waived the right to have an atto rn ey free from the conflicts carried by Bevilacqua's personal behavior. This w aiv er prevents Cruz from raising any ineffective assistance of counsel claims cau sed by the conflict. As found by the district court, this waiver encompasses all o f Cruz's ineffective assistance of counsel claims, except for the failure to in v estig ate claim.

Even if we had not reached this conclusion, we would still deny Cruz's in effectiv e assistance of claims because she failed to demonstrate prejudice.

C. Ineffective Assistance of Counsel Claims A defendant claiming ineffective assistance of counsel must demonstrate b o th professional error and prejudice to the outcome of the proceedings, and the failu re to demonstrate either is dispositive of the claim against the petitioner.

Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2069, 80 L. Ed. 2d 6 7 4 (1984). In determining whether counsel gave adequate assistance, "counsel is stro n g ly presumed to have rendered adequate assistance and made all significant d e c is io n s in the exercise of reasonable professional judgment." Id. at 690, 104 S.

C t. at 2066. Counsel's performance is deficient only if it falls below the wide ran g e of competence demanded of attorneys in criminal cases. Id. at 688, 104 S.

C t. at 2065. Prejudice is a "reasonable probability that, but for counsel's u n p r o f e ss io n a l errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068. "[A] court need not determine whether counsel's p erfo rm an ce was deficient before examining the prejudice suffered by the d e f en d a n t as a result of the alleged deficiencies." Id. at 697, 104 S. Ct. at 2069.

The Strickland two-part test applies to challenges to guilty pleas based on in effectiv e assistance of counsel. United States v. Pease, 240 F.3d 938, 941 (11th C ir. 2001) (citing Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1 9 8 5 )). However, under the first prong, counsel owes a lesser duty to a client who p le ad s guilty than to one who goes to trial, although counsel still must "make an in d e p e n d e n t examination of the facts and circumstances and offer an informed o p in io n to the accused as to the best course to follow." Agan v. Singletary, 12 F.3d 1 0 1 2 , 1017-18 (11th Cir. 1994). (Citation and quotations omitted). Moreover, in o rd er to satisfy Strickland's prejudice prong, a defendant must show not only that co u n sel committed professional error, but also a reasonable probability that, but for co u n sel's errors, she would not have pleaded guilty and would have insisted on g o in g to trial. Pease, 240 F.2d at 941. To be entitled to collateral relief in such cases, a petitioner must "prove serious derelictions on the part of counsel sufficient to show that [her] plea was not, after all, a knowing and intelligent act." Downs-Morgan v. United States, 765 F.2d 1534, 1539 (11th Cir. 1985).

A criminal defendant is entitled to conflict-free representation. Cuyler v. S u lliva n , 446 U.S. 335, 346, 100 S. Ct. 1708, 1717, 64 L. Ed. 2d 333 (1980). In C u y le r, the Supreme Court considered a claim of ineffective assistance of counsel w h ere defense counsel represented three co-defendants without objection. Id. at 3 3 7 -3 8 , 100 S. Ct. at 1712. The Supreme Court held that "[i]n order to establish a v io la tio n of the Sixth Amendment, a defendant who raised no objection at trial m u st demonstrate that an actual conflict of interest adversely affected his lawyer's p e r fo r m a n c e." Id. at 348, 100 S. Ct. at 1718. The Supreme Court further stated th at a "defendant who shows that a conflict of interest actually affected the ad eq u acy of his representation need not demonstrate prejudice in order to obtain r elie f." Id. at 349-350, 100 S. Ct. 1708. "If there is a guilty plea involved, this co u rt looks at whether the attorney's actual conflict adversely affected the d e f en d a n t's decision to plead guilty." Pegg v. United States, 253 F.3d 1274, 1278 ( 1 1 th Cir. 2001).

T h e Supreme Court later clarified the scope of the standard in Cuyler: [ C o u r ts of Appeals] have invoked the [Cuyler v. ] Sullivan standard n o t only when (as here) there is a conflict rooted in counsel's o b lig atio n s to former clients, . . . but even when representation of the d e f en d a n t somehow implicates counsel's personal or financial in terests, including a book deal, a job with the prosecutor's office, the teach in g of classes to Internal Revenue Service agents, a romantic "e n ta n g le m e n t" with the prosecutor, or fear of antagonizing the trial ju d g e .

I t must be said, however, that the language of Sullivan itself does not clearly establish, or indeed even support, such expansive application. .

. . Both Sullivan itself, and Holloway[ v. Arkansas, 435 U.S. 475, 98 S . Ct. 1173, 55 L. Ed. 2d 426 (1978)], stressed the high probability of p reju d ice arising from multiple concurrent representation, and the d ifficu lty of proving that prejudice. Not all attorney conflicts present co m p arab le difficulties.

Mickens v. Taylor, 535 U.S. 162, 174-75, 122 S. Ct. 1237, 1245, 152 L. Ed. 2d 291 (2 0 0 2 ) (citations omitted).

Although Cruz and the government both contend that the Cuyler standard s h o u ld apply and Cruz should only be required to show that there was an actual co n flict that adversely affected counsel's performance, Mickens indicated that C u y le r should be limited to situations of multiple concurrent representation where th er e is an inherent high probability of prejudice. As discussed above, Cruz's in effectiv e assistance of counsel claims are based on an alleged personal conflict of B ev ilacq u a not wanting personal information about him to become public, not fro m the fact of her and Capaldi being represented by the same law firm. The S u p rem e Court in Mickens explicitly stated that the language in Cuyler did not su p p o rt expansion of the standard into cases involving counsel's personal interests.

Mickens, 535 U.S. at 174-75, 122 S. Ct. at 1245. Therefore, we will examine w h eth er Cruz was prejudiced by her counsel's alleged ineffectiveness.

As an initial matter, it is noteworthy that Cruz admitted to facts during the p lea hearing that demonstrated she was significantly involved in the offense co n d u ct. Cruz admitted that she was with the other co-defendants at Janet Shaw's h o u s e when they discussed a drug deal with "Luciano." Cruz further admitted that s h e was in the car with Oswaldo Castillo when he had kidnaped Shaw and took her to a hotel room, and accompanied the other co-defendants to a Home Depot p a r k in g lot where they were supposed to meet Shaw's employer to extort money fo r her return. This proffer established that Cruz's involvement was significant en o u g h to demonstrate that she was involved in a conspiracy to possess drugs and w as involved in extorting money through kidnaping and threatened force.

Cruz claims that her counsel was ineffective for failing to investigate the c as e and argues that she had a defense to the charge of conspiracy to affect c o m m e rc e by extortion and threatened force, in violation of 18U.S.C. § 1951(a), b e c au s e there was no nexus to interstate commerce. In the context of a § 1951(a) p ro secu tio n , however, the government needs only to establish a minimal nexus to in terstate commerce. United States v. Klopf, 423 F.3d 1228, 1237-38 (11th Cir. 2 0 0 5 ). The conspiracy to possess drugs has the requisite impact on interstate co m m erce. See United States v. Bernard, 47 F.3d 1101, 1103 (11th Cir. 1995).

Thus, Cruz suffered no prejudice from her counsel failing to investigate the case b ecau se she had no viable defense based on a lack of nexus to interstate commerce.

Finally, even if Cruz had not waived her claims that her counsel m isrep resen ted facts about the case and sentencing and coerced her into pleading g u ilty , she could not demonstrate prejudice. Cruz had ample time at the plea h e a rin g and afterward to correct the conflict, of which she admits she was aware at th e time of her plea. At the plea hearing, Cruz stated twice that she was fully s atis fie d with her representation from counsel. Cruz also stated that no one had m ad e any promises or assurances to her, or coerced her into pleading guilty. The c o u r t also explained to her the maximum penalties and that the sentence imposed co u ld be different from any estimate given to her by her lawyer or anyone else.

The court also informed her of her right to plead not guilty and continue to trial.

Cruz never mentioned that her counsel had coerced her into pleading guilty or assu red her that she would receive a lesser sentence. Furthermore, after Cruz r ec eiv e d the Presentence Investigation Report and moved to have counsel su b stitu ted , she never openly complained about her counsel's ineffectiveness or attem p ted to withdraw her guilty plea. Thus, Cruz is unable to demonstrate p r e ju d ic e due to the fact that she was aware of her attorney's conflict, was in f o r m e d of her rights and disavowed any problems with counsel at the plea h e a rin g , and still elected to plead guilty after Juan Mourin was substituted as her co u n sel of record.

Therefore, based on the above considerations, Cruz cannot show that she w a s prejudiced by her counsel's behavior and we affirm the denial of her in effectiv e assistance of counsel claims.

AFFIRMED.

1 Cruz requests in her reply brief on appeal for the first time that we grant a COA on the issue of whether her sentence was enhanced by the district court in violation of her Sixth Amendment rights under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). First, we have stated that "[t]he only way a habeas petitioner may raise on appeal issues outside those specified by the district court in the certificate is by having the court of appeals expand the certificate to include those issues," and that a motion to expand "must be filed promptly, well before the opening brief is due." Tompkins v. Moore, 193 F.3d 1327, 1332 (11th Cir. 1999). In addition, this issue is abandoned because Cruz failed to raise it in her initial brief. See United States v. Levy, 416 F.3d 1273, 1276 (11th Cir. 2005). Thus, we will not consider Cruz's request to expand the COA.

2 United States v. Garcia, 517 F.2d 272 (5th Cir. 1975).