from the United States District Court for the Northern
District of Texas
SMITH, WIENER, and ELROD, Circuit Judges.
E. SMITH, CIRCUIT JUDGE
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.
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.
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."
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.
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
made no mention of her counsel's alleged conflict.
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.
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.
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 ...