Not for Publication in West's Federal Reporter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. 02-2458

MIGUEL RIVERA-SANTIAGO,

Petitioner, Appellant,

v.

UNITED STATES,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, Senior U.S. District Judge]

Before

 Boudin, Chief Judge,

Torruella and Howard, Circuit Judges.

Miguel A. Rivera-Santiago on brief pro se.

H.S. Garcia, United States Attorney, and Nelson Perez-Sosa,

Assistant U.S. Attorney, and Sonia I. Torres-Pabon, Assistant U.S.

Attorney, on brief for appellee.

June 25, 2004
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Per Curiam. Appellant Miguel Rivera-Santiago was

convicted of drug offenses and sentenced to life imprisonment.

He appeals pro se from a district court order that denied his

28 U.S.C. § 2255 motion. See Rivera-Santiago v. United States,

219 F. Supp. 2d 186 (D.P.R. 2002). The district court granted

appellant a certificate appealability (COA) on an issue which

the parties have interpreted differently in their respective

briefs. We interpret the issue as being whether the district

court erred in failing to address the following constitutional

claims:

(1) that a conflict of interest arose from

the defense attorneys' fee arrangement, 

(2) that due to this conflict of interest,

appellant's counsel failed to relay the

government's plea offer to him, 

(3) that appellant's sentence violates

Apprendi v. New Jersey, 530 U.S. 466

(2000), and

(4) that defense counsel rendered

ineffective assistance by failing to argue

properly Rivera's Rule 29(c) motion for

acquittal.

At the outset, we put to one side the third and

fourth of these constitutional claims. The Apprendi issue that

Rivera seeks to raise is barred by Sepulveda v. United States,

330 F.3d 55, 63 (1st Cir. 2003). The ineffective assistance

claim in paragraph (4), although encompassed by the COA, was

not raised by Rivera in the district court and so we decline to
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address it. See David v. United States, 134 F.3d 470, 474 (1st

Cir. 1998).

The conflict of interest claim set forth in the first

two paragraphs was expressed in vague terms in Rivera's

original pro se section 2255 petition and more fully elaborated

in his first motion to amend that petition. In its ruling, the

district court asserted that this motion to amend had been

denied, and Rivera on this appeal claims that the denial was

itself error; but so far as we can tell, the district court

never ruled on the motion to amend one way or the other; there

is certainly no docket entry reflecting a denial of the motion.

A party is ordinarily entitled to amend his initial

complaint once as a matter of right before a responsive

pleading is filed, see Acosta-Mestre v. Hilton Intern. of

Puerto Rico, 158 F.3d 49, 51 (1st Cir. 1998), and we have

previously assumed without deciding that this applied as well

to a motion under section 2255. See Rogers v. United States,

180 F.3d 349, 356 (1st Cir. 1999); 1 Liebman and Hertz, Federal

Habeas Corpus Practice and Procedure, §17.2, at 730 (4th ed.

2001). Since in this case the motion to amend seemingly did no

more than flesh out a basic conflict of interest claim already

made in the petition itself, it is unclear why the district

judge would have denied the motion to amend. And, of course,
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no reason has been given for such a denial, there being no

denial reflected in the record.

Curiously, the district court itself correctly noted

that a "conflict of interest among counsel" was one of several

ineffective assistance of counsel claims made by Rivera in his

original section 2255 petition. See 219 F. Supp. 2d at 190.

Yet the district court did not address or resolve this claim in

its own decision. If we were satisfied that the claim was

without merit, we would nevertheless affirm without requiring

a remand. But on the present record it appears to us possible

that there may have been a conflict of interest and also that

it is possible (although far from certain) that Rivera can show

that it affected counsel’s performance.

The gist of the conflict claim derives from Rivera's

assertion that his own lawyer and several other defense counsel

were paid their fees by counsel for one of the other codefendants and that this was done on the express condition that

the parties present a unified defense and not testify at trial.

Another co-defendant made similar allegations and in allowing

a motion for judgment for acquittal, the district court

indicated that it would have granted a motion for a new trial

based on such conflict if the court had not ordered an

acquittal. We do not know whether the allegation is true, nor

are we prepared to say whether there was or was not a conflict
1Rivera raised no conflict of interest objection at trial nor

on direct appeal based on the alleged fee arrangement, which does

not in itself bar its presentation in a section 2255 motion. See

Massaro v. United States, 538 U.S. 500, 509 (2003); United States

v. Burgos-Chaparro, 309 F.3d 50, 51 (1st Cir. 2002), cert. denied,

537 U.S. 1135 (2003). However, in the district court there was

some inquiry into whether Rivera’s counsel should withdraw because

he shared office space with a co-defendant’s attorney. The

district court found that the office arrangement posed no conflict

of interest, and we regard the issue as outside the scope of the

certificate of appealability, or, alternatively, as waived for

failure to raise in Rivera’s opening brief. 

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of interest in whatever arrangement existed; but the claim

cannot be casually disregarded.

Another question with no clear answer on this record

is whether such a conflict, if it existed, adversely affected

counsel's performance. Under governing Supreme Court

precedent, prejudice is automatic if a defendant has no counsel

at all, see Mickens v. Taylor, 535 U.S. 162, 166 (2002); but

where the claim is that counsel labored under the burden of

dual allegiance, the defendant who raised no objection at trial

must demonstrate that counsel might plausibly have pursued an

alternative defense strategy that counsel forsook because of

his conflicting loyalties, see, e.g., Familia-Consoro v. United

States, 160 F.3d 761, 764 (1st Cir. 1998).1 

In this instance, Rivera's second numbered

constitutional claim, listed above, says that his own counsel

failed to relay to him a government plea offer. Although the

record on this point is unclear, there is a suggestion that an
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investigator for another defendant interviewed Rivera's defense

counsel who confirmed that such an offer had been made by the

government for a plea with a ten-year sentence. See Aff. of

Rivera, D.E. # 20, ¶ 16. Rivera denied that any such offer was

relayed to him, see id., although there may be conflicting

evidence on this issue.

Rivera makes two other claims at different points as

to adverse effects of the supposed conflict: one is that he

was prevented from testifying because of the conflict although

he wished to do so, and the other is that based on the alleged

fee agreement, his own counsel failed to move for a severance.

This latter claim is less impressive since such severances are

very rarely granted. So even assuming that Rivera would have

been better off in a severed trial, this may not have been a

plausible strategy.

In all events, at least two of the three claims of

adverse effect are sufficiently colorable--although the facts

may not bear them out--to prevent us from summarily affirming.

Instead, we are bound to vacate the district court's denial of

the section 2255 petition (insofar as it rejected the conflict

of interest claim) and remand for further consideration of that

claim. We think that the district court should regard this

conflict claim as adequately presented by the section 2255

petition, as fleshed-out by the first motion to amend (D.E. #
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5) and Rivera’s affidavit (D.E. # 20), and that no further time

should be expended on the question whether the first motion to

amend was appropriate. On the other hand, we do not think the

district judge is obliged to grant further motions to amend--a

habit that Rivera is beginning to abuse.

On remand, we expect that the district court will

treat this long-pending petition as a matter of urgency. This

is not because we are as yet persuaded that it is necessarily

a meritorious petition. Rather, we are quite concerned that

this case has been pending since 1997 and that several prior

long periods elapsed in which no action was taken on pending

matters. Although some of the delay may have been due to

Rivera's amendments, it is important that this case be taken at

hand and resolved promptly.

To this end, the district court also ought to

consider on remand whether the matter can best be handled by

once again appointing counsel for Rivera. Short of an

evidentiary hearing, this is a decision for the district court.

But the conflict issue is more than routine; the history

appears to be complicated; and there may be legal questions

that a lawyer is better qualified to address.

Rivera's renewed motion for appointment of counsel on

appeal is denied. The judgment of the district court is

vacated insofar as it rejected the conflict of interest claim,
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and the matter is remanded for further proceedings consistent

with this decision.

It is so ordered.