### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 1 7

- 10 376

UNITED STATES OF AMERICA , Plaintiff

–

Appell ee ,

v ersus GLORIA ANN PALACIOS,
Defendant

– Appell ant

.

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

Before SM ITH , W IE NER, 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 p e r 28 U.S.C. § 2255 (2012) , contending , inter alia , that trial counsel had rendered ineffective assistance because of a

con flict of interest

. The court denied th at motion , declining to hold a hearing on the conflict

- of

- interest claim. Finding no err or , we affirm. United States Court of Appeals Fifth Circuit 

### FILED July 1, 2019 Lyle W. Cayce Clerk Case: 17-10376 Document: 00515017967 Page: 1 Date Filed: 07/01/2019No. 17

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2 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 Dis trict 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) s he was satisfied with Fernandez’s legal representat ion, (2) she had no complaints whatso ever with any actions Fernandez had taken or failed to take, and (3) her deci sion to plead guilty was knowing and voluntary. The district court ac cepted 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 suppor ted by an independent basis in fact con taining 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 office r
. 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 office r declined to apply the three

- level reduction for acceptance of responsibility, finding that Palacios had minim ized her role in the offense throughout the interview

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3 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 c ourt should be aware of when determining what sentence to impose. Palac ios 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 y ou 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 Palacio s 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 sentenc ing. 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 direc t appeal, despite being instructed to do so. The district court denied Palacio s ’s first three claims Case: 17-10376 Document: 00515017967 Page: 3 Date Filed: 07/01/2019No. 17

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4 without a hearin g, 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 hear ing. 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 ques tions concerning the circum

stances of his hiring or his alleged conflict of interest , despite the court’s earlier willingness to allow Burns to proce ed on a similar line of questioning

. T he district court af firmed its deni al 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”).
Pala cio s 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 ] s tate 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. Pala cios and her being aware of who hired me, she agr eed to my represen ta

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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5 entitlement to relief” on her failure

- to

- a ppeal claim. Palacio s 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 “r equires a showing that counsel ’ s performance was deficient, in that it fell below an ob jective 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). W he n a defendant allege s that counsel’s “ conflict of interest stem [ s ] from “ multi ple representation, ” rather than

. . . “from a conflict between the attor ney ’ 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 , 3 4 8

– 50 (1980).
To succeed on a n 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 Case: 17-10376 Document: 00515017967 Page: 5 Date Filed: 07/01/2019No. 17

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6 inquiry into actual conflict as something separate and apart from adverse effect. An ‘ actual co nflict, ’ 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 affec ted 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. 2 d 677, 682 (5th Cir. 1983). Moreover,

“ [s] olemn declarations in open court carry a strong presumption of verity. ” Black ledge 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 wit h 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 omit ted). 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 generalization s, or (2) the movant would not be entitled to relief as a matter of law, even if his factual assertions were true.” Id

. (citation Case: 17-10376 Document: 00515017967 Page: 6 Date Filed: 07/01/2019No. 17

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7 omitted).

A. P alacio s asserts that Fernandez violated her Sixth Amendment right to conflict

- free counsel because he was paid by her cousin Gallegos. 2 Palacio s states that she wished to cooperate with the government by providing informa

tion about her distributor ( Gallegos ) bu t that Fernandez refused to allow her
to do so

. Consequently , Palacio s avers, “Fernandez placed his own financial interest before his client ’s

. . . liberty interest.”
Palacio s 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). Palacio s 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, Palacio s highlights Wood v. Georgia , 450 U. S. 261 (1981), wh ich 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 hi m , ” i d

. at 272. In light of this precedent, Palacios asks us to vacate a nd 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 C onfusingly, Palacios claims that Gallegos paid Fernandez by transferri ng 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. Case: 17-10376 Document: 00515017967 Page: 7 Date Filed: 07/01/2019No. 17

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8 edly knowing of the alleged conflict.” Second, the government maintains that, even assuming arguendo that her claim is not waived, Palacios fails to sup port it with anything other than conclus ional and unsubstantiated allegations.

B. The government has the better argument. With respect to waiver, Pala

cio s contend s that “[b]ut for counsels [ sic ] unprofessional behavior the result of the proceedings would have been d ifferent [and] she would have pled not guilty.” Her testimony at sentencing and at the § 2255 evidentiary hearing , however, belies such a notion

. Alth ough 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
no t have any deal, understanding, or agreement and that no one had made any promise to her to induce her to enter a guilty p lea;

. . . she would not be permitted to withdraw her plea if her sentence was higher than she expected; [and] she committed each elem ent 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 waive s a conflict

- of

- interest cl aim when he voluntarily plead s 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 evidenti ary Case: 17-10376 Document: 00515017967 Page: 8 Date Filed: 07/01/2019No. 17

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

.

3 Moreover, we “ may affirm . . . on any grounds supported by the record.” Palmer v. Wax ahachie 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 § 22 55 motion, Palacios claimed that she personally witnessed Gal legos 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 fu nneled 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
re tained by Mata because she did not represent federal defendants. Fernandez als o stated that “[Mata] has only represented Ms. Palacios and there’s no indication that she ever rep re sented any co

- defendants associated with Ms. Palacios. ” Additionally , when Palacios met with the probation office in preparation for sen

tencing, Fernand ez was present. Although Palacios repeatedly implicated Gallegos as an organ izer 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
wa y
. 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 col loquy, 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 fail ed to do” while serving as her attorney. Palacios answered, “No, sir.” Considering this evidence, Palacios fails to provide support for her allegation that Fer nandez 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. Case: 17-10376 Document: 00515017967 Page: 9 Date Filed: 07/01/2019