Julio C. Gomez v. USA, No. 06-12043 (11th Cir. 2007)
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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT No. 06-12043 Non-Argument Calendar ________________________ DEC 07, 2007 THOMAS K. KAHN CLERK D. C. Docket No. 01-01547-CV-ASG JULIO C. GOMEZ, Petitioner-Appellant, versus UNITED STATES OF AMERICA, Respondent-Appellee. ________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (December 7, 2007) Before BARKETT, MARCUS and PRYOR, Circuit Judges. PER CURIAM: Julio Gomez appeals the district court s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence based on his claim of ineffective assistance of counsel. Gomez contends that his complaints about the performance of his court-appointed attorney, Mr. Julio Gutierrez, Esq., and Gomez s requests for substitute counsel created a conflict of interests for Gutierrez that prevented Gutierrez from adequately representing him. When reviewing the district court s denial of a § 2255 motion, we review questions of law de novo and findings of fact for clear error. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004). A defendant attempting to show a conflict of interest resulting in ineffective assistance of counsel must show first, that his attorney had an actual conflict of interest, and second, that the conflict adversely affected counsel s performance. Pegg v. United States, 253 F.3d 1274, 1277 (11th Cir. 2001) (emphasis omitted). The conflict cannot be merely possible, speculative, or hypothetical. Reynolds v. Chapman, 253 F.3d 1337, 1342-43 (11th Cir. 2001). We will not find an actual conflict of interest unless a petitioner can point to specific instances in the record to suggest an actual conflict or impairment of [his] interests. Id. at 1343 (citation omitted). Several evidentiary hearings were held on this matter and based on the record, we find no reversible error. We find meritless Gomez s second argument that the district court improperly relied on two Second Circuit cases as binding 2 authority. AFFIRMED. 3
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