The opinion of the court was delivered by: Harry D. Leinenweber, Judge United States District Court
Hon. Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Fabian Lafuente's (hereinafter, "Lafuente") Motion to Vacate, Set Aside, or Correct His Sentence Pursuant to 28 U.S.C. § 2255. For the following reasons, the motion is denied without an evidentiary hearing.
I. FACTUAL AND PROCEDURAL BACKGROUND
On September 22, 2003, Fabian Lafuente was convicted by a jury of attempting to possess cocaine with intent to distribute, possessing with intent to distribute, and possessing a firearm with an altered, removed, or obliterated serial number. This Court sentenced Lafuente on April 28, 2004 to 300 months. Lafuente's conviction was affirmed on appeal, and following a Paladino remand, on July 24, 2007, this Court sentenced Lafuente to 188 months imprisonment. Lafuente timely filed this § 2255 motion on January 8, 2008.
A. Actual Conflict of Interest
Lafuente asserts that his trial counsel, Andrea Gambino, provided ineffective assistance because she had an actual conflict of interest that adversely affected her performance. See Hall v. U.S., 371 F.3d 969, 973 (7th Cir., 2004) (citing Cuyler v. Sullivan, 446 U.S. 335 (1980)). "Under Sullivan, an actual conflict exists if the defense counsel was faced with a choice between advancing his own interests above those of his client." Id. (citation omitted). An "'adverse effect' occurs 'when an attorney's actual conflict of interest causes a lapse in representation contrary to the defendant's interests.'" Gray-Bey v. U.S., 156 F.3d 733, 739 (7th Cir., 1998) (citation omitted). Lafuente asserts that during and prior to his trial, Ms. Gambino was under investigation and facing criminal charges by the same U.S. Attorney's Office that was prosecuting him. See Mot. at 2. He alleges that Ms. Gambino "had been found to be
[h]arboring an illegal alien named Jorge Ramos-Gonzales in violation of Title 8 U.S.C. § 1324"; that she "had been caught red-handed"; "admitted her guilt in the matter to the U.S. Attorney's Office"; and that "[t]o avoid her own criminal charges Ms. Gambino had an interest in maintaining a friendly and cooperative relationship with the U.S. Attorney's Office with a view to arriving at a favorable disposition to her criminal charges." Mot. at 3. Thus, she could not, and did not, provide him with vigorous and effective representation.
The Seventh Circuit has held that "[a] situation of this sort (the criminal defendant's lawyer himself under criminal investigation), . . . can create a conflict of interest. It may induce the lawyer to pull his punches in defending his client lest the prosecutor's office be angered by an acquittal and retaliate against the lawyer. Such retaliation would be unethical; but still the defense lawyer may fear it, at least to the extent of tempering the zeal of his defense of his client somewhat. Yet presumably the fear would have to be shown before a conflict of interest could be thought to exist." Thompkins v. Cohen, 965 F.2d 330, 332 (7th Cir., 1992).
Although an actual conflict of interest can exist under these circumstances, Lafuente has not provided any evidence that Ms. Gambino was being investigated or facing criminal charges by the U.S. Attorney's Office. Under Prewitt v. U.S., 83 F.3d 812 (7th Cir., 1996), a § 2255 motion must be accompanied by "a detailed and specific affidavit which shows that the petitioner had actual proof of the allegations going beyond mere unsupported assertions." Id. (citing Prewitt, 83 F.3d at 819). While an evidentiary hearing must be granted "if a § 2255 petitioner 'alleges facts that, if proven, would entitle him to relief,' the threshold determination that the petitioner has sufficiently alleged such facts requires the petitioner to submit a sworn affidavit showing what specific facts support the petitioner's assertions." Galbraith v. U.S., 313 F.3d 1001, 1009 (7th Cir., 2002) (citations omitted).
Lafuente has submitted his own affidavit, wherein he states that he was never advised by Ms. Gambino or her co-counsel, Keri Ambrosio, that Ms. Gambino was being investigated and facing criminal charges by the U.S. Attorney's Office, and that he did not become aware of this until after his trial and conviction. He further states that if he had known these facts, he would not have allowed her to represent him. Ex. C at 1-2. Despite these sworn statements, Lafuente has not provided any evidence that Ms. Gambino was in fact under investigation and/or facing criminal charges by the U.S. Attorney's Office. His statements assume that she was under investigation and facing criminal charges. The Government asserts in its response to Lafuente's motion that "there is no support for defendant's claim that his lead counsel was facing criminal charges from the same prosecutor's office against whom she was defending her client at trial. Defendant points to no evidence in support of his bald assertion that lead counsel was being "investigated" during the trial, or that she was facing any criminal charges. In fact, the government is not aware that any such evidence exists." Response at 4.
What the record does show is that Ms. Gambino was being investigated and disciplined by the Illinois Attorney Registration and Disciplinary Commission (the "ARDC") for having a personal relationship with a client who was an illegal alien and whose unlawful stay in the country she had helped facilitate. Among the exhibits that Lafuente attached to his motion is the ARDC complaint against Ms. Gambino dated September 5, 2002. See Ex. B. The complaint asserts that her acts were in violation of 8 U.S.C. § 1324 (Bringing and Harboring Certain Aliens). While Ms. Gambino could have been prosecuted for such acts, the ARDC complaint provides no evidence that Ms. Gambino was actually under investigation or facing criminal charges by the U.S. Attorney's Office.
The issue of Ms. Gambino facing ARDC disciplinary charges was raised before the Court, and the Court made an inquiry into the matter. On September 16, 2003, the first day of trial, Ms. Gambino stated to the Court, "the government has brought to my attention an issue that has a bearing on my representation of Mr. Lafuente. While I don't believe it's an issue I would like to go and talk to [supervisors of the AUSA] and have suggested that they need to bring it up before we continue." Sept. 16, 2003 Tr. 32. Ms. Gambino did not want to discuss the problem on the ...