FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APR 24, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-16257

Non-Argument Calendar

________________________

D. C. Docket Nos. 99-00755-CR-JAL

 02-22923-CV-JAL

RICHARD MENENDEZ, 

Petitioner-Appellant, 

versus 

UNITED STATES OF AMERICA, 

Respondent-Appellee. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(April 24, 2007)

Before BIRCH, HULL and FAY, Circuit Judges.

PER CURIAM:
 On appeal, Menendez also argues three issues related to the legality of his arrest and the 1

search of his vehicle and home. We will not consider these arguments because our review is

limited to the issues specified in the COA. Murray v. United States, 145 F.3d 1249, 1250-51

(11th Cir. 1998).

2

Richard Menendez appeals the district court’s denial of his pro se motion to

vacate, under 28 U.S.C. § 2255. Menendez filed his motion after the effective date

of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L.

No. 104-132, 110 Stat 1214 (1996). Therefore, the provisions of the AEDPA

govern this appeal. We granted a certificate of appealability (“COA”) on the

following issues: 

(1) Whether the district court erred in finding that trial counsel was not

ineffective for failing to call Menendez’s father as a witness in the

suppression hearing due to a conflict of interests.

(2) Whether, in light of Clisby v. Jones, 960 F.2d 925, 936 (11th Cir.

1992) (en banc), the district court was required to address the claim of

trial error raised in Menendez’s reply to the government’s response to

his motion to vacate.

(3) If so, whether the district court failed to address Menendez’s claim

that the district court erred in failing to advise him regarding the

potential conflict of interests arising from joint representation. 

For the reasons set forth more fully below, we affirm.1

In Clisby, we instructed district courts to resolve all claims for relief raised

in a petition for habeas corpus relief pursuant to 28 U.S.C. § 2254, regardless of

whether habeas relief is granted or denied. Clisby, 960 F.2d at 936. When a
3

district court fails to address all of the claims in a habeas petition, we “will vacate

the district court’s judgment without prejudice and remand the case for

consideration of all remaining claims . . . .” Id. at 938. Thus, we consider whether

this case must be remanded under Clisby before reaching the issue of trial

counsel’s ineffectiveness. See Callahan v. Campbell, 396 F.3d 1287, 1288-89

(11th Cir. 2005) (remanding under Clisby without considering the two claims

which were addressed by the district court). 

Although we liberally construe pro se pleadings, Tannenbaum v. United

States, 148 F.3d 1262, 1263 (11th Cir. 1998), arguments raised for the first time on

appeal in a reply brief are not properly before us. See, e.g., Lovett v. Ray, 327

F.3d 1181, 1183 (11th Cir. 2003) (applying this rule to a pro se appellant). In his

initial brief, Menendez only argues the merits of his claim, and does not even make

a reference to Clisby. Thus, Menendez has abandoned the Clisby issue by failing

to raise it in his initial brief.

We now consider the district court’s finding that Menendez’s trial counsel

was not ineffective for failing to call Menendez’s father as a witness in the

suppression hearing due to a conflict of interests. We review de novo an

ineffective assistance of counsel claim. Chandler v. United States, 218 F.3d 1305,

1312 (11th Cir. 2000) (en banc). We also review de novo the question of whether
4

an attorney labored under a conflict of interest. Brownlee v. Haley, 306 F.3d 1043,

1058 (11th Cir. 2002). The district court’s subsidiary findings of fact are reviewed

for clear error. See Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052,

2070, 80 L.Ed.2d 674 (1984). 

Where an ineffective assistance claim is based on a conflict of interest, “a

defendant must show first, that his attorney had an actual conflict of interest, and

second, that the conflict adversely affected counsel’s performance.” Pegg v.

United States, 253 F.3d 1274, 1277 (11th Cir. 2001) (emphasis omitted); see also

Mickens v. Taylor, 535 U.S. 162, 172 n.5, 122 S.Ct. 1237, 1244 n.5, 152 L.Ed.2d

291 (2002) (“An ‘actual conflict,’ for Sixth Amendment purposes, is a conflict of

interest that adversely affects counsel’s performance.”). “An ‘actual conflict’ of

interest occurs when a lawyer has ‘inconsistent interests.’” Freund v. Butterworth,

165 F.3d 839, 859 (11th Cir. 1999) (en banc) (citation omitted). The conflict

cannot be merely possible, speculative, or hypothetical. Reynolds v. Chapman,

253 F.3d 1337, 1342 (11th Cir. 2001). To distinguish between actual and possible

conflicts of interest, 

[w]e will not find an actual conflict of interest unless appellants can

point to specific instances in the record to suggest an actual conflict or

impairment of their interests. . . . Appellants must make a factual

showing of inconsistent interests and must demonstrate that the

attorney made a choice between possible alternative causes of action,

such as eliciting (or failing to elicit) evidence helpful to one client but
5

harmful to the other. If he did not make such a choice, the conflict

remain(s) hypothetical.

Id. at 1343 (citation omitted) (omission in original). “To prove adverse effect, a

defendant needs to demonstrate: (a) that the defense attorney could have pursued a

plausible alternative strategy, (b) that this alternative strategy was reasonable, and

(c) that the alternative strategy was not followed because it conflicted with the

attorney’s external loyalties.” Id. 

A criminal complaint was filed against Menendez and his father, Julio

Menendez, alleging that the defendants conspired to possess with intent to

distribute and possessed with intent to distribute cocaine and possessed a firearm

during and in relation to the commission of a drug trafficking crime. Menendez

and his father retained counsel, Manuel Gonzalez, Jr., to represent them in

connection with these charges. An indictment was filed, naming Menendez as the

sole defendant, and charging him with conspiracy to possess with intent to

distribute and possession with intent to distribute cocaine. Menendez filed motions

to suppress the evidence seized from a vehicle and his residence and to suppress

his statements to law enforcement. 

At the suppression hearing, Menendez testified, but his father, who was

present at Menendez’s residence during law enforcement’s entry and search of the

premises, did not testify. Menendez and the government’s witnesses provided
6

conflicting accounts of what occurred during the stop of the vehicle Menendez was

driving and at Menendez’s residence. The magistrate judge, finding that credibility

was the only issue and that the government’s witnesses were credible and that

Menendez was not, recommended the denial of Menendez’s motions to suppress. 

Over Menendez’s objections, the district court adopted the magistrate’s report. 

Menendez subsequently entered a conditional plea of guilty to both counts of the

indictment. 

On appeal, Menendez argues that there was an actual conflict of interest

because his father’s testimony would have been beneficial to his case, but his

counsel failed to call his father to the witness stand in an attempt to protect his

father from re-indictment or possible impeachment. As to an adverse effect,

Menendez argues that counsel could have called his father as a witness at the

suppression hearing, that this strategy was reasonable, and that this strategy was

not pursued because counsel was protecting his father.

Both Menendez and his father have consistently maintained that Julio

Menendez was not involved in his son’s illegal activities. The return of an

indictment against Menendez but not against his father, however, created a

situation in which a possible conflict could arise if the attorney was forced to

choose between a strategy that would help Menendez but would place Julio
7

Menendez in danger of being indicted. Cf. United States v. Jones, 52 F.3d 924,

926 (11th Cir. 1995) (holding that an actual conflict of interest existed where

raising a selective prosecution defense on behalf of one client “would have had the

effect of pressuring the government to indict [the attorney’s] other client.”)

(footnote omitted). However, this potential conflict did not develop into an actual

conflict when counsel was faced with the question of whether to use Julio

Menendez as a witness at the suppression hearing. First, Julio Menendez stated

that he wanted to testify at the hearing. Second, based on the facts of this case, the

possibility that the government would prosecute Julio Menendez as a result of his

testimony at the suppression hearing was too speculative to create an actual

conflict. 

At the evidentiary hearing on Menendez’s § 2255 motion, counsel admitted

that it remained a concern that Julio Menendez could still be in trouble. In his

opinion, the government thought that Julio Menendez was involved, but did not

have any evidence to charge him. He testified that he was concerned that Julio

Menendez would be prosecuted based on a witness coming forward with additional

evidence. However, there is no causal relationship between using Julio Menendez

as a witness in the suppression hearing and the government receiving additional

evidence against Julio Menendez based on information from a witness. 
 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 2

8

In preparation for the suppression hearing, Gonzalez met with Menendez

and his father and discussed the fact that he was going to call Julio Menendez as a

witness. The testimony that Julio Menendez was prepared to give would: (1) deny

knowledge of or involvement in his son’s illegal activities; (2) deny that he was

ever in the garage; (3) suggest that the search of the residence occurred before the

vehicle stop; and (4) corroborate his son’s testimony that the search of the

residence occurred without consent and that no Miranda warnings were given to 2

Menendez inside the house. There is nothing inherent in Julio Menendez’s

testimony that could result in his prosecution, as he denied knowledge of or 

involvement with the drugs and his testimony was consistent with this denial. 

Based on Julio Menendez’s anticipated testimony, the possibility that the

prosecutor could bring out some information on cross-examination that could lead

to Julio Menendez’s subsequent prosecution is too speculative to give rise to an

actual conflict of interest. 

Even if there was an actual conflict, Menendez cannot establish an adverse

effect. Assuming that calling Julio Menendez at the suppression hearing is a

plausible (which the government concedes) and reasonable alternative strategy,

Menendez cannot establish that “the alternative strategy was not followed because
9

it conflicted with the attorney’s external loyalties.” Reynolds, 253 F.3d at 1343. 

The magistrate and the district court credited counsel’s explanation that the

decision was strategic and not based on his duty of loyalty to Julio Menendez. To

the extent that Julio Menendez and Menendez gave testimony at the evidentiary

hearing to the effect that counsel made the decision because counsel was concerned

about Julio Menendez getting into trouble as a result of testifying at the

suppression hearing, the magistrate and the district court’s decision to credit

counsel’s explanation did not amount to clear error. See Anderson v. City of

Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985)

(“[W]hen a trial judge’s finding is based on his decision to credit the testimony of

one of two or more witnesses, each of whom has told a coherent and facially

plausible story that is not contradicted by extrinsic evidence, that finding, if not

internally inconsistent, can virtually never be clear error.”). Counsel also testified

that Menendez was concerned that his father could be implicated or ensnared if his

father testified, and that he was “concerned from [Menendez’s] part that his father

could say something that somehow would implicate him in the matter . . . .” 

However, counsel’s testimony, coupled with Julio Menendez’s testimony that he

wanted to testify, is indicative of an attempt to balance Menendez’s competing

interests, not of a conflict between counsel’s external loyalties.
10

In light of the foregoing, we hold that the district court did not err in finding

that counsel did not provide ineffective assistance due to a conflict of interest.

AFFIRMED.