[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 18-10755

____________________

FABIO OCHOA, 

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA, 

Respondent-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket Nos. 1:07-cv-22659-KMM,

0:99-cr-06153-KMM-7

____________________

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2 Opinion of the Court 18-10755

Before WILLIAM PRYOR, Chief Judge, BRASHER, Circuit Judge, and 

ALTMAN,∗ District Judge.

BRASHER, Circuit Judge:

This appeal requires us to consider whether a criminal defendant’s Sixth Amendment right to counsel is violated when multiple attorneys represent him in plea negotiations with the government and one of them labors under a conflict of interest. In 1999, 

Fabio Ochoa-Vasquez, a Colombian native, was arrested in Colombia on drug trafficking charges and ultimately convicted in federal 

court. Ochoa now appeals the denial of both his amended 28 U.S.C. 

§ 2255 motion to vacate his convictions and sentence and his subsequent motion to alter or amend the judgment. He claims that 

one of his pre-extradition attorneys, Joaquin Perez, was ineffective 

due to a conflict of interest. According to Ochoa, Perez tried to 

convince him to pay a thirty-million-dollar bribe or kickback as part 

of a plea agreement, which would redound to the benefit of one of 

Perez’s other clients. But Ochoa was represented by other attorneys, and he does not allege that they were conflicted or otherwise 

deficient in pursuing legitimate plea agreements on Ochoa’s behalf. 

The district court held that the allegations in Ochoa’s motion

would not establish a Sixth Amendment violation even if true. 

∗ Honorable Roy K. Altman, United States District Judge for the Southern 

District of Florida, sitting by designation.

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After careful consideration and with the benefit of oral argument, 

we affirm.

I. 

In 1999, Ochoa and thirty-one co-defendants were charged 

with conspiring to possess with the intent to distribute and import 

five or more kilograms of cocaine, in violation of 21 U.S.C. §§ 846 

and 963, respectively. The charges resulted from a joint investigation into Colombian narcotics trafficking between the Drug Enforcement Administration and Colombian National Police known 

as “Operation Millennium.” 

Colombian authorities arrested Ochoa in October 1999. After he was arrested and the United States sought his extradition, 

Ochoa “vehemently argued that the information” in the extradition affidavits “concerning him was inaccurate and false.” He went 

so far as to circulate a pamphlet to the public entitled “Soy Inocente” (I am innocent). 

Soon after his arrest, Ochoa retained attorney Joaquin Perez. 

Although it is unclear exactly when this representation ended, the 

record shows it ended sometime in early 2000. While in Colombia, 

Ochoa also retained attorney Jose Quinon, who represented him 

“[f]rom the time [he] was charged through the time of his extradition from Colombia.” In total, he was represented by “around 

twenty” lawyers in early 2000. Ochoa was extradited to the United 

States in September 2001.

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Both Perez and Quinon pursued plea agreements on 

Ochoa’s behalf prior to his extradition. On March 1, 2000, Perez 

met with prosecutors, who suggested the possibility of a global plea 

deal if Ochoa agreed to cooperate with the government and forego 

the extradition process. Ochoa contends that Perez also tried to 

convince him to pay a thirty-million-dollar bribe or kickback as part 

of the plea negotiations. Quinon separately pursued plea negotiations sometime between Ochoa’s arrest and October 2000; the government offered Ochoa a reduced sentence in exchange for pleading guilty and waiving the formal extradition process. Ultimately, 

Ochoa rejected all plea offers and was extradited.

After Ochoa was extradited, new lawyers took over his defense. Based on allegations that Perez attempted to facilitate the 

payment of a bribe or kickback, they filed a motion to dismiss the 

indictment and to disqualify Perez from representing any co-defendant. After an evidentiary hearing, the district court denied the 

motion. Ochoa’s new lawyers also pursued multiple plea deals on 

his behalf and secured an offer for a twenty-year sentence in exchange for pleading guilty. Again, Ochoa rejected that offer. 

At trial, Ochoa was convicted and sentenced to two concurrent terms of 365 months’ imprisonment. We affirmed his conviction, sentence, United States v. Ochoa-Vasquez, 428 F.3d 1015 

(11th Cir. 2005), and the denial of a motion for a new trial based on 

the Perez allegations, United States v. Ochoa-Vasquez, 179 Fed. 

Appx. 572 (11th Cir. 2006).

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In 2008, Ochoa filed a Section 2255 motion to vacate his conviction and sentence. In his motion, Ochoa argued that his first attorney, Perez, had labored under a conflict of interest. Relevant to 

this appeal, Ochoa claimed that the conflict stemmed from Perez’s 

representation of Nicholas Bergonzoli, a person who had not been 

charged in the conspiracy but who had aided the government in its 

investigation. According to Ochoa, Bergonzoli and Perez tried to

convince him to pay thirty million dollars in exchange for a plea 

agreement as part of a fraudulent scheme that would benefit Bergonzoli. Ochoa alleged that Perez did not pursue a legitimate plea 

agreement with the government to further the scheme. Ochoa also 

alleged that he had refused to cooperate with the government and 

pleaded not guilty solely based on the outlandish price tag attached 

to the offer. In his motion, Ochoa requested an evidentiary hearing. 

The district court denied the motion without an evidentiary 

hearing. Addressing Ochoa’s argument that Perez failed to solicit a 

legitimate plea deal because he represented Bergonzoli, the district 

court concluded that this claim was “laden with assumptions and 

inferences, . . . short on specifics and lack[ing] evidentiary support.”

The court determined that Ochoa had not established a conflict of 

interest or adverse effect under Cuyler v. Sullivan, 446 U.S. 335 

(1980). Specifically, the district court reasoned that “Ochoa’s other 

lawyers also tried to negotiate a plea agreement, yet Ochoa would 

not agree to one.” 

The district court also denied Ochoa’s request for discovery 

because his amended Section 2255 motion “lack[ed] specific 

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allegations, relying instead on assumptions and conjecture.” Based 

on Ochoa’s sustained engagement with the Perez issue at trial, 

“there [was] no justification for Ochoa’s failure to support his request for discovery with specifics.” 

Ochoa later moved to alter or amend the court’s denial under Federal Rule of Civil Procedure 59(e), arguing that: (1) the district court applied the wrong standard of proof, as he needed only 

to allege—not prove—reasonably specific, non-conclusory facts 

that, if true, would entitle him to relief; and (2) that he had alleged 

conflicts of interest that rendered Perez’s representation constitutionally ineffective, pointing to Perez’s failure to negotiate a legitimate plea agreement because of his participation in the kickback 

scheme. The district court denied the motion. In doing so, the 

court clarified that, although it had employed language suggesting 

that Ochoa was required to prove a conflict of interest to secure 

discovery and an evidentiary hearing, it had set forth the correct 

standard and properly found that he was entitled to neither.

Ochoa appealed and moved for a certificate of appealability. 

We granted a certificate of appealability limited to the issue of 

“[w]hether the district court erred in denying under Cuyler v. Sullivan, 446 U.S. 335 (1980), without an evidentiary hearing and without allowing discovery, Ochoa’s claim that his attorney failed to 

pursue a legitimate plea agreement due to a conflict of interest.”

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II. 

We review the denial of a federal habeas petitioner’s claim 

of ineffective assistance of counsel de novo. Chandler v. United 

States, 218 F.3d 1305, 1312 (11th Cir. 2000) (en banc). 

We review a district court’s denial of an evidentiary hearing 

or request for discovery in a Section 2255 proceeding for abuse of 

discretion. Winthrop-Redin v. United States, 767 F.3d 1210, 1215 

(11th Cir. 2014) (evidentiary hearing); see also Bowers v. U.S. Parole Comm’n, Warden, 760 F.3d 1177, 1183 (11th Cir. 2014) (discovery). “A district court abuses its discretion if it applies an incorrect legal standard, applies the law in an unreasonable or incorrect 

manner, follows improper procedures[,] . . . or makes findings of 

fact that are clearly erroneous.” Winthrop-Redin, 767 F.3d at 1215

(quotation omitted). 

III. 

As an initial matter, we note that the scope of our review is 

limited to the issue specified in the certificate of appealability. See 

McKay v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011). That 

issue is “[w]hether the district court erred in denying under Cuyler 

v. Sullivan, 446 U.S. 335 (1980), without an evidentiary hearing and 

without allowing discovery, Ochoa’s claim that his attorney failed 

to pursue a legitimate plea agreement due to a conflict of interest.” 

Specifically, Ochoa’s argument that “Perez was ineffective because 

he delayed in negotiating in order to help Bergonzoli extort 

Ochoa” and did not pursue a legitimate plea agreement. To the 

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extent Ochoa raises any arguments that fall outside this issue, we

do not consider them. 

Having defined the scope of our review, we now consider 

whether the district court erred in denying Ochoa’s conflict of interest claim or abused its discretion in denying Ochoa’s requests for 

discovery and an evidentiary hearing. For the reasons below, we 

conclude that it did not in either respect. 

A. Conflict of Interest 

The Sixth Amendment guarantees the right to the assistance 

of a lawyer who is not laboring under an actual conflict of interest. 

Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). To succeed on his conflict-of-interest claim, Ochoa must establish: (1) a conflict of interest that (2) adversely affected Perez’s performance. Herring v. 

Sec’y, Dept. of Corrs., 397 F.3d 1338, 1356–57 (11th Cir. 2005) (citing Cuyler, 446 U.S. at 348 and Mickens v. Taylor, 535 U.S. 162, 

171, 172 n.5 (2002)). To establish an adverse effect, Ochoa must 

show “some ‘plausible alternative defense strategy or tactic that 

might have been pursued’” but for the alleged conflict—that is, Perez’s loyalty to Bergonzoli. United States v. Williams, 902 F.3d

1328, 1332–33 (11th Cir. 2018) (quoting Freund v. Butterworth, 165 

F.3d 839, 860 (11th Cir. 1999) (en banc)); United States v. Novaton, 

271 F.3d 968, 1011 (11th Cir. 2001). Ochoa is required to show only 

that the alternative strategy was “a viable alternative,” not that it 

“would necessarily have been successful.” Williams, 902 F.3d at 

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1332–1333 (quoting Freund v. Butterworth, 165 F.3d 839, 860 

(1999)). 

Ochoa argues that Perez failed to pursue a reasonable plea 

negotiation because of his loyalty to Bergonzoli in attempting to 

extract thirty million dollars from Ochoa in exchange for a plea 

deal. According to Ochoa, if Perez operated under a conflict of interest that adversely affected Perez’s performance, his ineffectiveassistance-of-counsel claim would succeed. 

We disagree. Even assuming a conflict of interest existed, 

Ochoa’s claim ultimately fails because he does not sufficiently allege that the “conflict adversely affected his representation.” Novaton, 271 F.3d at 1011. Other attorneys represented Ochoa during 

and after Perez represented him, so it is not enough to allege that 

Perez alone operated under a conflict of interest. Because the record establishes that Ochoa was represented by other attorneys who 

Ochoa does not allege were conflicted, the district court did not err 

by denying Ochoa’s motion.

Although Ochoa criticizes Perez, he does not allege that his 

other attorneys suffered under a conflict of interest. The Sixth 

Amendment ensures the right to effective assistance of “an attorney.” Strickland v. Washington, 466 U.S. 668, 685 (1984) (emphasis 

added). That is, the Sixth Amendment confers “an affirmative right 

(the right to effective assistance of counsel at critical proceedings), 

not a negative right (the right to be completely free from ineffective 

assistance).” Logan v. United States, 910 F.3d 864, 870 (6th Cir. 

2018). The Sixth Amendment does not “include the right to receive 

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good advice from every lawyer a criminal defendant consults about 

his case.” Clark v. Chappell, 936 F.3d 944, 968–69 (9th Cir. 2019) 

(quoting United States v. Martini, 31 F.3d 781, 782 (9th Cir. 1994)). 

We have explained that “an adverse effect resulting from a 

conflict is not the same thing as prejudice in the run-of-the-mill 

Strickland sense.” Williams, 902 F.3d at 1335. Nonetheless, to show 

an adverse effect, a petitioner must still establish that his attorney’s 

conflict denied him the opportunity to pursue a “plausible alternative defense strategy or tactic.” Id. at 1332 (quoting Freund, 165 

F.3d at 860). “The right to defend is personal.” Faretta v. California, 

422 U.S. 806, 834 (1975). It is thus not enough that a particular conflicted attorney failed to pursue a strategy; the defendant must have 

lost the opportunity to pursue it. 

In light of these principles, we and other courts have recognized that an attorney’s conflict does not necessarily violate the 

Sixth Amendment if the defendant also receives the assistance of

conflict-free counsel. In Novaton, we assessed whether a defense

attorney who was allegedly under investigation by the United 

States Attorney’s Office suffered from a conflict that adversely affected the defendant’s trial. 271 F.3d at 1009-10. We noted that the 

presence of additional conflict-free counsel at trial made it “less 

likely that [the defendant’s] representation was adversely affected 

by the alleged conflict.” Id. at 1012 n.11. In Stoia v. United States, 

the Seventh Circuit declined to reverse a conviction because the 

“defendant [wa]s adequately represented by several lawyers and 

the defendant’s overall representation [wa]s not impaired by any 

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actual conflict.” 109 F.3d 392, 398 (7th Cir. 1997). It reasoned that 

“[t]o hold otherwise would allow defendants represented by multiple lawyers to take two bites at the apple.” Id. at 399. Likewise, in 

Logan, the Sixth Circuit considered whether a criminal defendant 

received effective assistance of counsel at the plea negotiation stage 

when he was represented by two attorneys, one of whom was constitutionally ineffective. 910 F.3d at 869. There, the court concluded that the defendant’s overall representation was not impaired because he was simultaneously counseled by an effective attorney, “who provided all that the Sixth Amendment requires.” Id.

at 872. 

Turning to the facts of this appeal, we conclude that Ochoa 

does not allege sufficient facts to establish that Perez’s alleged conflict deprived Ochoa of effective assistance of counsel. Novaton, 

271 F.3d at 1012 n.11. Perez’s representation lasted at most a few 

months, beginning soon after Ochoa’s arrest in October 1999 and 

ending in early 2000. And for the entirety of that “very limited representation,” Ochoa was simultaneously represented by Quinon, 

who he does not allege was conflicted.1 After Perez withdrew,

1 In his briefing, Ochoa disputes the timing of Quinon’s representation, arguing that it began only after Perez’s representation had ended. But he does not 

point to anything to support this assertion, which is contradicted by the record. Specifically, a witness testified at the pre-trial evidentiary hearing that 

Quinon represented Ochoa “[f]rom the time [he] was charged through the 

time of his extradition.” 

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Ochoa was represented through trial by yet more lawyers, who are 

also not alleged to have been conflicted. 

B. Evidentiary Hearing

Because we conclude that Ochoa’s claim fails on the merits, 

we cannot say the district court abused its discretion in denying his 

request for an evidentiary hearing. A Section 2255 petitioner is entitled to an evidentiary hearing “if he alleges facts that, if true, 

would entitle him to relief.” Winthrop-Redin, 767 F.3d at 1216 

(cleaned up). “A petitioner need only allege—not prove—reasonably specific, non-conclusory facts that, if true, would entitle him to 

relief.” Id. (cleaned up). “However, a district court need not hold a 

hearing if the allegations are patently frivolous, based upon unsupported generalizations, or affirmatively contradicted by the record.” Id. (cleaned up); see also Smith v. Singletary, 170 F.3d 1051, 

1054 (11th Cir. 1999) (district court need not conduct an evidentiary hearing if the record conclusively shows petitioner is not entitled to relief). 

Ochoa argues that the district court incorrectly required him 

to prove his conflict of interest claim before granting his request for 

an evidentiary hearing. We disagree. It is true that the district court 

used loose language in its first order, suggesting that Ochoa lacked 

evidentiary support for his assertions. But the district court later 

clarified that it required only that Ochoa allege facts that, if true,

would entitle him to relief. Winthrop-Redin, 767 F.3d at 1216. 

Ochoa’s petition does not fail because he lacks evidentiary support 

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for his allegations. It fails because, as explained above, his allegations are insufficient to support his theory that Perez’s conflict of 

interest affected his defense. 

C. Discovery

Lastly, Ochoa argues that the district court abused its discretion in denying him discovery. Again, we disagree. 

Unlike typical civil litigants, habeas petitioners are “not entitled to discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997). Instead, it is within the discretion of 

the district court to grant discovery upon a showing of good cause. 

Id. at 904. “Good cause is demonstrated where specific allegations 

show reason to believe that the petitioner may, if the facts are fully 

developed, be able to demonstrate that he is entitled to relief.” Arthur v. Allen, 459 F.3d 1310, 1310–11 (11th Cir. 2006) (internal quotation marks and alterations omitted). In sum, “a habeas case is not 

a vehicle for a so-called fishing expedition via discovery, in an effort 

to find evidence to support a claim.” Borden v. Allen, 646 F.3d 785, 

810, n.31 (11th Cir. 2011). 

We have held that “good cause for discovery cannot arise 

from mere speculation” or “pure hypothesis.” Arthur, 459 F.3d. at 

1311. The district court denied Ochoa’s request for discovery because his motion “lack[ed] specific allegations, relying instead on 

assumptions and conjecture.” And there was “no justification for 

Ochoa’s failure to support his request for discovery with specifics”

because of the significant litigation on this issue at trial. 

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Ochoa cannot establish good cause for discovery. As explained above, even if Ochoa’s specific allegations could be proven 

with the aid of discovery, there is no “reason to believe” that he 

“may . . . be able to demonstrate that he is entitled to relief” because he has not alleged a Sixth Amendment violation. See Arthur, 

459 F.3d at 1310–11. So, the district court did not abuse its discretion in denying Ochoa’s request for discovery on a futile claim. 

IV. 

The district court is AFFIRMED.

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