United States District Court, D. Nevada
C. JONES UNITED STATES DISTRICT JUDGE.
Jose Alvarez pled guilty in this Court to conspiracy to
possess with intent to distribute at least 50 grams of a
mixture and substance containing a detectable amount of
methamphetamine. In 2017, the Court sentenced him to 78
months of imprisonment, to be followed by five years of
supervised release. Defendant appealed, and the Court of
Appeals affirmed. Defendant has filed a habeas corpus motion
under 28 U.S.C. § 2255, listing five counts: (1) trial
counsel was ineffective for failing to facilitate
Defendant's right under the Plea Agreement to show he
played a minor role in exchange for a recommendation that he
receive a two-level reduction under U.S.S.G. § 3B1.2;
(2) trial counsel was ineffective for allowing him to admit
facts that could not be proved at trial; (3) trial counsel
was ineffective for failing to disclose a conflict of
interest; (4) appellate counsel was ineffective for failing
to appeal the § 3B1.2 issue; and (5) the Government
breached the Plea Agreement. The Court ordered the Government
to answer the third count but denied the other counts without
requiring an answer.
Sixth Amendment right to effective assistance of counsel is
violated when: (1) counsel's performance was so deficient
so as not to constitute the “counsel” guaranteed
by the Sixth Amendment; and (2) the deficiency prejudiced the
defense by “depriv[ing] the defendant of a fair trial,
a trial whose result is reliable.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). “[The]
breach of an ethical standard does not necessarily make out a
denial of the Sixth Amendment guarantee of assistance of
counsel.” Nix v. Whiteside, 475 U.S. 157, 165
(1986). Rather, in the context of an ineffective-assistance
claim based on an attorney's conflict of interest, a
Defendant must show that his counsel “actively
represented conflicting interests” and that that
“an actual conflict of interest adversely affected his
lawyer's performance”; but if he makes that
showing, prejudice is presumed. Strickland, 466 U.S.
at 692 (quoting Cuyler v. Sullivan, 446 U.S. 335,
348, 350 (1980)). An “actual conflict” for Sixth
Amendment purposes means one that “affected
counsel's performance-as opposed to a mere
theoretical division of loyalties.” Mickens v.
Taylor, 535 U.S. 162, 171 (2002).
suggests that there may have been a conflict of interest
based on trial counsel's concurrent representation of
another defendant in a related case. The only mention of this
in the record is the Government's statement at the
sentencing hearing, “And I know that counsel here
probably is aware of that case because she represented the
co-defendant. I trust that all the conflicts were waived in
that regard.” (Sentencing Tr. 41:12-14, ECF No. 110).
Defendant's counsel since February 16, 2016 was Attorney
Ristenpart. It appears the Government was referring to a
related case involving Saul Cisneros, a co-conspirator
charged separately in No. 3:15-cr-41 shortly before the
present case was filed. Attorney Ristenpart represented Lisa
Jones in that case from June 19, 2015 until at least the
hearing on Jones's amended judgment on June 12, 2017.
Attorney Ristenpart therefore concurrently represented
Defendant and Jones from February 16, 2016 until at least
June 12, 2017, during which time Defendant changed his plea
to guilty and was sentenced.
lawyer in Nevada may not concurrently represent two clients
when “[t]here is a significant risk that the
representation of one or more clients will be materially
limited by the lawyer's responsibilities to another
client . . . .” Nev. R. Prof. Cond. 1.7(a)(2). The
conflict can be waived under certain circumstances, but both
clients must give informed written consent. Nev. R. Prof.
Cond. 1.7(b)(4). Defendant claims counsel did not even
disclose the concurrent representation. As noted, however,
Defendant must show more than a mere violation of state
ethical rules. He must show that Attorney Ristenpart's
performance was actually adversely affected due to her
representation of Jones.
Government responds that Defendant has shown neither an
actual, nor even a theoretical, conflict of interest. The
Court agrees in part. Defendant has shown a theoretical
conflict, at least under state law, but he makes no claim of
any actual adverse effect on Attorney Ristenpart's
performance, which he must show in the present context. In
her affidavit, Attorney Ristenpart admits that she
represented both Defendant and Jones. (Ristenpart Aff.
¶¶ 1-2, ECF No. 119-1). Jones's co-defendant,
Saul Cisneros, whom Attorney Ristenpart did not represent,
provided the information leading to Defendant's arrest,
but Jones had no such information to provide. (Id.
¶¶ 4-6). Defendant therefore cannot show that a
continuing duty to Jones, e.g., a need to maintain her
credibility, actually interfered with Attorney
Ristenpart's duties to Defendant, e.g., by preventing her
from attacking Jones's credibility. And Defendant told
Attorney Ristenpart that he did not know either Cisneros or
Jones, (id. ¶ 10), so he could not have
provided the Government any information about Jones, and he
therefore cannot show, for example, that Attorney Ristenpart
refused to assist him in providing such information to the
Government because of her duties to Jones. Attorney
Ristenpart's affidavit does not indicate that any
potential conflict of interest under state ethical rules
resulted in an actual conflict under the Sixth Amendment.
HEREBY ORDERED that the Motion to Vacate, Set Aside, or
Correct Sentence of a Person in Federal Custody, Pursuant to
28 U.S.C. § 2255 (ECF No. 114) is DENIED.
FURTHER ORDERED that a certificate of ...