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United States v. Palacios

United States Court of Appeals, Fifth Circuit

July 1, 2019

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
GLORIA ANN PALACIOS, Defendant-Appellant.

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

          Before SMITH, WIENER, and ELROD, Circuit Judges.

          JERRY E. SMITH, CIRCUIT JUDGE

         Gloria Palacios pleaded guilty of conspiracy to possess with intent to distribute a controlled substance. After the district court dismissed her untimely direct appeal, Palacios moved for relief per 28 U.S.C. § 2255 (2012), contending, inter alia, that trial counsel had rendered ineffective assistance because of a conflict of interest. The court denied that motion, declining to hold a hearing on the conflict-of-interest claim. Finding no error, we affirm.

         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 District for his role in a related drug conspiracy-hired Fernandez to represent her. Palacios claims that she was "personally present" when Gallegos "delivered cash to her attorney for future representation." She also asserts that Gal-legos transferred real property to Fernandez as further payment for his representation of Palacios.

         On October 16, 2015, the district court held a rearraignment hearing, at which Palacios acknowledged, under oath, that, inter alia, (1) she was satisfied with Fernandez's legal representation, (2) she had no complaints whatsoever with any actions Fernandez had taken or failed to take, and (3) her decision to plead guilty was knowing and voluntary. The district court accepted 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 supported by an independent basis in fact containing the essential elements 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 officer. 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 officer declined to apply the three-level reduction for acceptance of responsibility, finding that Palacios had minimized her role in the offense throughout the interview.

         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 court should be aware of when determining what sentence to impose. Palacios 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 you 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 interest. Palacios then filed an untimely direct appeal with this court. We issued two orders. First, "we remand[ed] . . . for a determination whether the untimely 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 Palacios 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 adequately to explain relevant conduct and the use of that conduct at sentencing. 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 direct appeal, despite being instructed to do so. The district court denied Palacios's first three claims without a hearing, 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 hearing. Palacios was also permitted to testify concerning her ...


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