Opinion
Case No. 02-22923-CIV-LENARD/WHITE.
August 25, 2005
FINAL JUDGMENT
THIS CAUSE is before the Court on the Report of the Magistrate Judge ("Report," D.E. 48), issued on May 2, 2005. Petitioner Richard Menendez ("Petitioner") filed his Objections (D.E. 51) on May 20, 2005, and filed a Supplemental Memorandum (D.E. 58) on July 8, 2005. After an independent review of the Report, the Objections, the Supplemental Memorandum, and the record of this action, the Court finds as follows:
I. Background
On October 2, 1999, a criminal complaint was filed, in which Petitioner and his father, Julio Menendez, were charged with conspiracy to possess with intent to distribute cocaine, possession with intent to distribute cocaine, and possession of a firearm during and in relation to a drug trafficking crime. (Case No. 1:99m3503, D.E. 1; Case No. 99-755-CR-Lenard, D.E. 1.) Attorney Manuel Gonzalez entered a notice of appearance for both defendants. (Case No. 1:99m3503, D.E. 11-12; Case No. 99-755-CR-Lenard, D.E. 11.)
On October 12, 1999, the charges against Petitioner's father were dismissed in open court. (Case No. 1:99m3503, D.E. 14.) The same day, Petitioner was charged by indictment with conspiracy to possess with intent to distribute cocaine, possession with intent to distribute cocaine, and forfeiture. (Case No. 99-755-CR-Lenard, D.E. 14.)
On December 1, 1999, Petitioner's counsel filed a motion to suppress statements made by Petitioner and to suppress physical evidence seized in Petitioner's van and residence. (Case No. 99-755-CR-Lenard, D.E. 30, 32.) On January 11, 2000, an evidentiary hearing was held, and Petitioner testified on his own behalf. (Case No. 99-755-CR-Lenard, D.E. 64.) Petitioner's motion was denied, and, thereafter, Petitioner entered into a conditional plea agreement, in which he agreed to plead guilty but reserved his right to appeal the denial of the motion to suppress. (Case No. 99-755-CR-Lenard, D.E. 69.) On August 1, 2000, Petitioner was sentenced to 135 months' imprisonment, to be followed by three years' supervised release. (Case No. 99-755-CR-Lenard, D.E. 93.)
On April 7, 2001, the Eleventh Circuit Court of Appeals affirmed the denial of the motion to suppress (Case No. 99-755-CR-Lenard, D.E. 106). See Menendez v. United States, 253 F.3d 711 (11th Cir.) (table), cert. den'd, 534 U.S. 920, 122 S.Ct. 271 (2001).
On September 29, 2002, Petitioner filed the present Motion to Vacate Sentence pursuant to 28 U.S.C. § 2255. (D.E. 1.) Therein, he asserted four claims: (1) the omissions of Petitioner's trial counsel related to the unsuccessful motion to suppress deprived Petitioner of his Fourth Amendment rights; (2) Petitioner received ineffective assistance of trial counsel when his attorney did not call Petitioner's father to testify at the suppression hearing due to a conflict of interest stemming from the attorney's prior representation of Petitioner's father; (3) Petitioner's trial counsel was ineffective because he failed to investigate and raise jurisdictional issues related to the traffic stop and subsequent arrest; and (4) Petitioner's appellate counsel was ineffective because he failed to raise claims two and three of the present Motion on direct appeal. Petitioner's Motion was referred to Magistrate Judge Patrick A. White, who issued his initial report and recommendation on July 14, 2003. (D.E. 22.) Petitioner filed objections to the initial report on July 28, 2003. (D.E. 25.)
On August 16, 2004, after an independent review of the Motion to Vacate, the initial report, and the initial objections, the Court denied Petitioner's Motion to Vacate as to claims one, three, and four. (D.E. 26.) As to claim two, however, the Court determined that Petitioner was entitled to an evidentiary hearing on whether Petitioner had been denied effective assistance of counsel due to an actual conflict of interest. (Id.)
On August 19, 2004, Petitioner was appointed counsel (see D.E. 27), and, on April 21, 2005, an evidentiary hearing was held before Magistrate Judge White. (See Transcript of April 21, 2005, Hearing, "Transcript," Case No. 99-755-CR-Lenard, D.E. 110). On May 2, 2005, the Magistrate Judge issued his Report, in which he recommended that Petitioner's Motion to Vacate be denied as to the conflict of interest claim. Subsequently, Petitioner, through counsel, filed his Objections (D.E. 51) and a Supplemental Memorandum (D.E. 58).
II. Report of the Magistrate Judge
In his Report, the Magistrate Judge recommended that this Court deny Petitioner's second claim, in which Petitioner contended that his trial counsel was operating under an actual conflict of interest when he failed to call Julio Menendez, Petitioner's father and also a client of trial counsel, to testify at the suppression hearing. (Report at 18.) After performing the conflict of interest analysis established by the U.S. Supreme Court in Cuyler v. Sullivan, the Magistrate Judge determined that Petitioner had not satisfied his dual burdens of demonstrating the existence of an actual conflict of interest and of an adverse effect stemming therefrom. (Id. at 13, 15.)
With regard to the actual conflict requirement, Petitioner argued that an actual conflict arose when his attorney decided not to call Julio Menendez as a witness at Petitioner's suppression hearing in order to avoid the possibility that Julio Menendez would be re-implicated in the case and indicted. (Report at 8; D.E. 25, Ex. C.) After considering the substance of the testimony presented at the April 21, 2005, evidentiary hearing; the demeanor of the witnesses; and pertinent portions of the record, the Magistrate Judge first found that the "record [wa]s devoid of any evidence that the father's testimony would have exculpated the son, but inculpated the father." (Report at 13.) The Magistrate Judge noted that, instead, the record reflected that Petitioner was not concerned that his father's testimony would result in an indictment because, as Petitioner testified, his father was not involved in the offenses (id. at 11); and that it further reflected that Petitioner's attorney was not aware of any evidence to the contrary, as Petitioner and his father had consistently stated that Julio Menendez was not involved in and had no knowledge of Petitioner's unlawful activities (id. at 12). Next, the Magistrate Judge credited trial counsel's testimony that his decision not to call Julio Menendez at the suppression hearing was grounded in his litigation strategy, not on conflicting loyalties between his two clients. (Id. at 13.) Third, the Magistrate Judge found highly speculative the representations made by Petitioner and Julio Menendez that Julio Menendez may or may not have been impeached on cross-examination or that he may have been indicted based upon his testimony. (Id.) Thus, the Magistrate Judge concluded that no actual conflict had been demonstrated. (Id.)
With regard to the adverse effect requirement, Petitioner implicitly argued that, had his father been called to testify, his father would have provided evidence favorable to his defense. Accepting as true that trial counsel strategically decided not to call Julio Menendez as a witness for the defense, the Magistrate Judge found that to do so was not a reasonable option as such testimony would not have assisted the defense and may have cast doubt on Petitioner's credibility. (Report at 15.) Specifically, the Magistrate Judge found highly suspect both Julio Menendez' testimony that the search of Petitioner's residence preceded the stop of Petitioner's van (id. at 12, 14) and Julio Menendez' presentation of a memorandum in support of his testimony that he stated was drafted in December 1999 — although the memorandum had never before been brought to the attention of Petitioner, Petitioner's attorney, or the Court (id. at 10, 14). Next, the Magistrate Judge noted that it had credited the testimony of trial counsel that the decision not to call Julio Menendez as a witness was not based on conflicting loyalties or interest and further found that Petitioner had not provided any evidence to the contrary. (Id. at 15.) Therefore, the Magistrate Judge concluded that Petitioner had failed to demonstrate any adverse effect stemming from the alleged actual conflict. (Id.)
Last, the Magistrate Judge's Report concludes that Petitioner is not entitled to relief under Blakely, an issue that Petitioner raised in a supplemental pleading. (Report at 15-18.)
III. Objections and Supplemental Memorandum
In his Objections, Petitioner argues that the Magistrate Judge's conclusion that Petitioner failed to establish either an actual conflict or adverse effect is incorrect because, first, the Magistrate Judge demonstrated a "fundamental misunderstanding concerning the nature of the conflict of interest underlying [Petitioner's] Sixth Amendment claim," and, second, the Report improperly assumed critical facts that were not brought out at the April 21, 2005, evidentiary hearing. (Objections at 3.)
Petitioner argues that his conflict of interest claim rests on the premise that his father's testimony would have helped, not hurt, his defense. (Objections at 4-5.) He claims that the Magistrate Judge missed this point and instead attached misplaced significance on two undisputed facts: that the interests of Petitioner and his father were aligned and that Petitioner's father had no knowledge of Petitioner's unlawful activities. (Id. at 4.)
Further, Petitioner asserts that the Magistrate Judge ignored the testimony of Petitioner's attorney, who admitted a sense of loyalty to Julio Menendez as his client (id. at 5), who stated that he was concerned that Julio Menendez, if placed on the stand, might implicate himself (id.), and who conceded that, had Julio Menendez not also been his client, he would not have thought twice about calling him as a witness (id. at 6). The testimony presented at the hearing, Petitioner argues, shows that Julio Menendez was at Petitioner's home, where 500 kilograms of cocaine were found in a bathroom, where a gun that belonged to Julio Menendez was found in the bedroom closest to the bathroom where the cocaine was located, and where a second individual had possibly been seen helping Petitioner drive out of the garage. (Id. at 6.)
Next, Petitioner claims that the Magistrate Judge "overreache[d] the record" and improperly speculated — without evidentiary support from the record — that Petitioner's attorney did not allow Julio Menendez to testify because he is not a credible witness. (Report at 7.) Petitioner maintains that the testimony of Julio Menendez, as a U.S. Army veteran with no criminal history whose testimony has been credited elsewhere, could be believed, and thus it would have been reasonable to allow him to testify. (Id. at 7-8, 10-11.) Moreover, Petitioner argues that, because he had "no chance" of prevailing on his motion to suppress without his father's testimony — which was "indispensable" because it would have corroborated Petitioner's testimony and controverted the government witnesses' testimony — the decision to forgo Julio Menendez' testimony could "hardly be considered effective lawyering." (Id. at 8-10.)
Thus, Petitioner maintains that, at the hearing, he presented evidence supporting a finding that trial counsel's dual and competing loyalties to Petitioner and to Petitioner's father influenced his decision not to put the father on the stand. (Objections at 11.) Thus, he states, the record "compels a finding that trial counsel's decision not to call [Julio Menendez] as a witness cannot be deemed a `reasonable' strategic decision and that it was plainly influenced by his concerns that the father might get himself back into trouble by testifying." (Id.)
Last, Petitioner acknowledges that the recommendations of the Magistrate Judge with regard to Petitioner's newly-raisedBlakely arguments are consistent with the correct law of the Circuit, but objects in order "to preserve this issue in the event that the U.S. Supreme Court eventually rules differently." (Objections at 13.)
In his Supplemental Memorandum, Petitioner states that the transcript of the evidentiary hearing "strongly supports" his Objections and provides the Court with specific citations to the record for some of the above-raised arguments. (D.E. 58.)
IV. Discussion
The Sixth Amendment to the United States Constitution guarantees criminal defendants the fundamental right of effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 343 (1980). Effective assistance includes the right to counsel "unimpaired by conflicting loyalties." Reynolds v. Chapman, 253 F.3d 1337, 1342 (11th Cir. 2001) (internal citations omitted);Duncan v. Alabama, 881 F.2d 1013, 1016 (11th Cir. 1989). In fact, this duty to avoid conflicts of interest is among the most central of a criminal defense attorney's responsibilities.Strickland v. Washington, 466 U.S. 668, 688 (1984); Reynolds, 253 F.3d at 1342.
To demonstrate a violation of the Sixth Amendment on a claim of conflict of interest, a petitioner must establish, by a preponderance of the evidence, that: (A) his defense attorney had an actual conflict of interest, and (B) this conflict adversely affected the attorney's performance. Reynolds, 253 F.3d at 1342 (citing Cuyler v. Sullivan, 446 U.S. at 348-49); Mickens v. Taylor, 240 F.3d 348, 361 (4th Cir. 2001), aff'd, 535 U.S. 162 (2002) (citing Freund v. Butterworth, 165 F.3d 839, 860 (11th Cir. 1999) (en banc)). Thus, in the conflict of interest context, a petitioner who can show both that "counsel `actively represented conflicting interests' and that `an actual conflict of interest adversely affected his lawyer's performance"' is excused from the Strickland requirement of affirmatively proving prejudice. Strickland v. Washington, 466 U.S. at 692-93 (citing Cuyler v. Sullivan, 446 U.S. at 348).
A. Actual Conflict
Under the "actual conflict" prong, a petitioner must show that his attorney actively represented inconsistent interests.Reynolds, 253 F.3d at 1342-43 (citing Lightbourne v. Dugger, 829 F.2d 1012, 1023 (11th Cir. 1987)). A showing of active representation cannot be made if the conflict of interest is "possible, speculative, or merely hypothetical." Id. To aid in the analysis of whether this prong has been satisfied, the Eleventh Circuit has interpreted "actual conflict" to require that a petitioner both (1) make a factual showing of inconsistent interests and (2) demonstrate that his attorney acted in some way that reflected the reality of these conflicting interests.Reynolds, 253 F.3d at 1344 (citing Smith v. White, 815 F.2d 1401 (11th Cir. 1987)).
1. Factual Showing of Inconsistent Interests
To establish that his attorney labored under an actual conflict, a petitioner must first "point to specific instances in the record" that demonstrate inconsistent interests. Reynolds, 253 F.3d at 1343 (citing Smith, 815 F.2d at 1404-04). Interests are deemed inconsistent when a possible argument or action would benefit one client while harming the other. See Reynolds, 253 F.3d at 1347; Burden v. Zant, 24 F.3d 1298, 1305 n. 13 (11th Cir. 1994) ("[t]his court has occasionally defined an `actual conflict of interest' as an instance where `counsel's introduction of probative evidence or plausible arguments that would significantly benefit one defendant would damage the defense of another defendant whom the same counsel is representing'" (citing Ruffin v. Kemp, 767 F.2d 748, 550 (11th Cir. 1985); Baty v. Balkom, 661 F.2d 391, 395 (5th Cir. 1991) (Unit B), cert. denied, 456 U.S. 1011 (1982))).
Inconsistent interests are found, for example, when "blame-shifting" strategies are employed, that is, when one defendant asserts that he witnessed, but did not participate in, the crimes of his co-defendants. See Reynolds, 253 F.3d at 1344. Inconsistent interests are also found when an attorney refrains from making arguments that would exculpate one defendant while inculpating another. See id. at 1347.
In the present action, Petitioner asserts that an actual conflict existed because trial counsel did not put Petitioner's father on the stand although the "testimony would have helped, not hurt [Petitioner]." (Objections at 4-5 (emphasis in original).) Even if Petitioner could prove this statement to be true, the fact that the testimony of Julio Menendez would have provided evidence in support of Petitioner's Motion to Suppress — standing alone — is insufficient to demonstrate inconsistent interests. Instead, Petitioner must point to specific evidence that the testimony would have been both beneficial to Petitioner and detrimental to Julio Menendez. See Reynolds, 253 F.3d at 1347; Burden, 24 F.3d at 1305 n. 13.
After an independent review of the record, the Court concludes that Petitioner has not made the requisite factual showing of inconsistent interests. Petitioner has failed to identify any specific record evidence showing that the testimony of Julio Menendez at the suppression hearing would have damaged the defense of the elder Menendez. (See also Report at 13 ("the record is devoid of any evidence that the father's testimony would have exculpated the son, but inculpated the father.") In an affidavit filed with his objections to the first report and recommendations of the Magistrate Judge, Petitioner stated that "Counsel Gonzalez . . . de[c]ided that he would not call my father to testify [because] it might cause a negative result for my father." (D.E. 25, Ex. C.) However, Petitioner has not identified any portion of the record in support of this statement. He has not pointed to any portion of the record showing the actual and concrete "negative result," nor has he explained what that result would be.
For example, Petitioner has not identified any portion of the record showing that Julio Menendez had assisted Petitioner in his illegal activities by loading the van or closing the garage door (cf. Objections at 6) or even showing that Julio Menendez had knowledge of Petitioner's drug trafficking gained from seeing or smelling the cocaine in Petitioner's house (cf. id.).
Instead, Petitioner has consistently argued and testified that his father had no knowledge of and was not involved in Petitioner's illegal activities. (Objections at 4, 5; Transcript at 96-97, 103.) This position is corroborated by Julio Menendez, who repeatedly denied that he had any knowledge or involvement in his son's activities (Transcript at 12-13, 35, 39, 43, 45), as well as by trial counsel, Manuel Gonzalez, who testified that both Menendezes told him that Julio Menendez was not involved and that the Government had no evidence that Julio Menendez was involved (id. at 115-16, 132, 133). Additionally, the Government has argued, without objection from Petitioner, that it "has never presented any evidence in any hearing contrary to [Julio Menendez'] consistent position" that he was not involved in his son's illegal activities. (Id. at 160.)
In his Objections, Petitioner agreed that, from the perspective of Petitioner and Julio Menendez, "there was no conflict of interest" because "[Petitioner] and his father would have testified consistently with each other." (Objections at 4, 5.)
For example, at the evidentiary hearing, Petitioner testified that there was "no possible way" that his father could have been indicted along with Petitioner "because [his father] had nothing to do with it" and because "[t]here was no evidence against him." (Transcript at 96-97.)
Admitting the absence of any detrimental effect on Julio Menendez, Petitioner argues that an actual conflict existed nonetheless because trial counsel, Manuel Gonzalez, was "concerned" about the possible repercussions of allowing Julio Menendez to testify (e.g. Objections at 5). "A speculative or merely hypothetical conflict of interest," however, "does not yield a Sixth Amendment violation." Burden, 24 F.3d at 1305. Instead, the moving party must "adduce proof of an actual conflict." Id. At the evidentiary hearing, Petitioner testified that Gonzalez cautioned that Julio Menendez was not "out of the woods," as he could still be indicted (Transcript at 79), and Gonzalez himself explained that he had considered the "possibility that some witness might crawl out from the woodwork and point the finger at Julio" (id. at 126). Yet, despite myriad arguments related to concerns and possibilities, Petitioner has presented no concrete proof that, had his father testified at the suppression hearing, he would have "talk[ed] himself back into trouble" (Objections at 5). Most telling, Julio Menendez did testify — without any "negative result" — at Petitioner's sentencing hearing, where, as Petitioner's current counsel admits, "he would have just as easily got [sic] himself in trouble." (Transcript at 155-56.)
In sum, Petitioner has not pointed to any portion of the record suggesting that a decision to place Julio Menendez on the stand at the suppression hearing would have been detrimental to the interests of Julio Menendez. The evidence that has been identified shows nothing more than a speculative or hypothetical conflict between Petitioner's interests and those of Julio Menendez. Consequently, the Court cannot find that Petitioner has satisfied his burden of demonstrating inconsistent interests, see Reynold, 253 F.3d at 1342-43, and, as such, cannot establish the existence of an actual conflict.
2. Attorney Action Reflecting Reality of Inconsistent Interests
In addition to demonstrating inconsistent interests, a petitioner must also show that his counsel performed in a manner that reflected his divided loyalties. Reynolds, 253 F.3d at 1343 (citing Smith, 815 F.2d at 1404). This may include eliciting or failing to elicit testimony helpful to one client but harmful to the other, see Smith, 815 F.2d at 1404-05, or negotiating a plea arrangement for one co-defendant in exchange for his testimony against another co-defendant, see Burden v. Zant, 24 F.3d at 1298. However, again, the burden is on the petitioner to identify evidence in the record that indicates that his attorney was affected by the conflict of interest. See Reynolds, 253 F.3d at 1345 (finding that the petitioner had not met his burden when there was no record evidence that, when the petitioner's attorney secured plea agreements for his co-defendants, effective plea bargaining for the petitioner was prevented).
Here, the absence of any showing of an actual conflict, i.e. of any showing that Petitioner's interests were in conflict with the interests of his father, precludes Petitioner from demonstrating that trial counsel, Manuel Gonzalez, acted in a way that reflected such a conflict. At most, Petitioner could show that Gonzalez' representation reflected a generalized and unsubstantiated concern that Julio Menendez could have "talk[ed] himself back into trouble." (Objections at 5.) Speculative and hypothetical conflicts, however, have consistently been deemed insufficient to establish a basis for a conflict of interest claim. See, e.g., Burden, 24 F.3d at 1305. Therefore, the Court finds that Petitioner has not satisfied his burden of demonstrating that Gonzalez' performance reflected divided loyalties and further finds that, for this reason as well, Petitioner is not entitled to habeas corpus relief as to claim two of his Section 2255 Motion.
B. Adverse Effect
Because Petitioner has not established the existence of an "actual conflict," he also cannot satisfy the second prong of the conflict of interest analysis. The "adverse effect" prong requires a petitioner to demonstrate that an actual conflict adversely affected the representation that he received. See Reynolds, 253 F.3d at 1343; Freund, 165 F.3d at 860. The Eleventh Circuit has explained that an adverse effect is found only when a petitioner can demonstrate the following: (1) the petitioner's attorney could have pursued a plausible alternative strategy; (2) the alternative strategy was reasonable, and (3) the alternative strategy was not pursued because it conflicted with the attorney's loyalty to another client. Reynolds, 253 F.3d at 1343; Freund, 165 F.3d at 860.
Here, Petitioner argues that trial counsel could have called his father to testify at the suppression hearing and that this alternative strategy was reasonable. (Objections at 9-11.) Even if the Court were to accept these arguments, it cannot conclude that Manuel Gonzalez forwent this strategy specifically because it conflicted with his loyalty to Julio Menendez. First, Petitioner has not shown that a decision to place Julio Menendez on the stand at the suppression hearing would have constituted a breach of trial counsel's duty of loyalty to the elder Menendez. As discussed above, the record lacks any concrete evidence that Julio Menendez was involved in, aware of, or otherwise connected to Petitioner's illegal activities, such that Julio Menendez might have, for example, made self-incriminating statements on cross-examination. Further, Petitioner has consistently argued, and the evidence shows that, the testimony of Petitioner and Julio Menendez would have been entirely consistent. Thus, the Court cannot find that the decision not to have Julio Menendez testify exemplified the prioritization of trial counsel's duties to Julio Menendez over trial counsel's duties to Petitioner.
The reasonableness requirement mandates that the alternative strategy "possessed sufficient substance to be a viable alternative." Freund, 165 F.3d at 860. It does not, however, demand proof that the approach would have been successful, had it been pursued. Id.
Moreover, Manuel Gonzalez credibly testified that the decision not to call Julio Menendez was based on his general litigation strategy, not on his duty of loyalty to the elder Menendez. (See Report at 13.) Gonzalez explained that he believed his clients' interests were aligned and that, based on the evidence in the case, he was not concerned that Julio Menendez might be indicted at any later date, only about the possibility that new evidence could be identified or that a new witness could come forward. (Transcript at 115, 116.) Gonzalez further explained that the strategy employed was developed after consideration of the following factors: Gonzalez' determination that the crucial portion of the motion to suppress related to the traffic stop; the fact that Julio Menendez was not present during the stop and could not testify about it; Gonzalez' knowledge that, if the motion to suppress was denied as to that stop, Petitioner's guideline range, based on the amount of drugs seized, would not differ; and generalized concerns — held by both Petitioner and trial counsel — that Julio Menendez might be implicated in Petitioner's illegal activities even though he was not, in fact, involved. (Testimony at 116-17, 118-19, 120, 133-34.)
After reviewing the transcript in light of other pertinent portions of the record and having considered Petitioner's Objections, the Court adopts the credibility determinations of the Magistrate Judge with regard to the testimony of Manuel Gonzalez.
Thus, at most, the record demonstrates that the alternate strategy of placing Julio Menendez on the stand was not pursued because trial counsel, after finding Julio Menendez' testimony irrelevant to only argument that would have reduced Petitioner's likely guideline range, considered the unsubstantiated possibility that Julio Menendez might be brought back into the criminal action, despite his innocence. These facts, however, do not establish the type of causal relationship or "link" that satisfies the "adverse effect" prong. See Quince v. James Crosby, 360 F.3d 1259, 1264 (11th Cir. 2004) (finding no adverse affect when there was no causal relation between the actions of the attorney and his status as a "special deputy sheriff");Freund, 165 F.3d at 860 (explaining that a petitioner must show "some link between the actual conflict and the decision to forgo the alternative strategy"). Adverse effect is found when a petitioner establishes that the alternative strategy was inherently in conflict with, or not undertaken due to, the attorney's other loyalties or interests. Freund, 165 F.3d at 860. Here, however, the strategy of calling Julio Menendez to testify was not in conflict with trial counsel's duty of loyalty to Julio Menendez because there is no evidence that this strategy would have been detrimental to Julio Menendez' interests. Further, the only concrete evidence in the record is that trial counsel did not put Julio Menendez on the stand for tactical reasons unrelated to trial counsel's duty of loyalty to him. Accordingly, the Court finds that Petitioner has not satisfied the second prong of the conflict of interest analysis. Because Petitioner is not entitled to habeas corpus relief as to this claim, it is:
Because Petitioner agrees that with the Magistrate Judge that he is not entitled to any relief under Blakely v. Washington (Objections at 13), the Court will adopt, without comment, the determination of the Magistrate Judge that this supplemental claim must be denied.
ORDERED AND ADJUDGED that:
1. The Report of the Magistrate Judge (D.E. 48) is ADOPTED consistent with this Order.
2. Petitioner's Motion to Vacate Sentence pursuant to 28 U.S.C. § 2255 (D.E. 1), filed on September 29, 2002, is DENIED as to claim two.
3. This case is CLOSED.
4. All pending motions not otherwise ruled upon are DENIED as moot.