In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3670
F ABIAN L AFUENTE,
Petitioner-Appellant,
v.
U NITED STATES OF A MERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:08-cv-00160—Harry D. Leinenweber, Judge.
A RGUED JULY 8, 2010 —D ECIDED A UGUST 13, 2010
Before B AUER, R IPPLE and K ANNE, Circuit Judges.
P ER C URIAM. Fabian Lafuente was convicted by a jury
of drug and weapons offenses in September 2003; he is
serving a 188-month sentence. Lafuente filed a timely
This appeal is successive and is being submitted to the panel
that resolved Lafuente’s direct appeal pursuant to Operating
Procedure 6(b).
2 No. 08-3670
motion to set aside his conviction, 28 U.S.C. § 2255, al-
leging that he was denied his right to conflict-free
counsel because, at the time of his trial, his counsel was
subject to prosecution by the same U.S. Attorney’s office
that was prosecuting Lafuente. The district court denied
the motion without a hearing or other discovery. Be-
cause the motion was denied prematurely, we vacate
the judgment and remand for further proceedings.
In his § 2255 motion, Lafuente contended that he was
denied conflict-free representation because at the time
of trial, his counsel, Andrea Gambino, had violated
federal law by harboring an alien, 8 U.S.C. § 1324; had
admitted her guilt; and was “cooperating fully” with the
investigation. The motion asserts that Gambino (and her
associate, Keri Ambrosio) intentionally withheld the
facts of her criminal investigation from him, citing the
trial transcript where Gambino says that she would
rather not discuss the matter on the record. Lafuente
swears that he did not learn that Gambino was subject
to disciplinary sanction by the Illinois Attorney Registra-
tion and Disciplinary Commission until after the trial, and
even then Gambino refused to explain the nature of the
charges. Lafuente supported his assertions with a copy
of the disciplinary complaint against Gambino filed with
the ARDC.
According to that complaint, in 1996, while working as
a federal defender, Gambino represented Jorge Ramos-
Gonzales in his guilty plea to charges of possession with
intent to distribute heroin and illegal reentry. Ramos-
Gonzales was sentenced to 63 months’ imprisonment.
No. 08-3670 3
In March 2000, Ramos-Gonzales was released from
prison and removed to Mexico. After his removal,
Ramos-Gonzales contacted Gambino and, in either late
March or early April, illegally reentered the United
States. From April through September 2000, the com-
plaint continues, Gambino and Ramos-Gonzales “com-
menced a personal relationship.” The complaint also
asserts that Gambino violated federal law by assisting
Ramos-Gonzales financially and, on one occasion,
helping him evade law enforcement. As a result of
her conduct, Gambino was terminated by the Federal
Defenders office. In re Gambino, No. M.R. 18878, 02 CH
81 (Ill. Sept. 24, 2003), available by searching at https://
www.iardc.org. Gambino ultimately consented to the
ARDC complaint, confirming its allegations, expressing
regret, and accepting a one-year suspension from the
practice of law (three months’ actual suspension, and
the other nine months stayed pending one year of proba-
tion). Id.
The government opposed Lafuente’s motion, main-
taining that he did not produce sufficient evidence of a
potential conflict to merit a hearing, let alone relief from
the judgment. The government contended that Lafuente
only alleged Gambino committed a disciplinary viola-
tion, not that she was subject to a criminal investigation.
Moreover, his allegations did not warrant a hearing
because they were nothing more than bare assertions:
Lafuente’s affidavit does not even explain when, where,
and from whom he learned of the supposed criminal
investigation. Finally, the government maintained that
4 No. 08-3670
it was aware of no evidence showing that Gambino was
under criminal investigation at the time of Lafuente’s trial.
The district court denied Lafuente’s motion, and this
court granted a certificate of appealability on the ques-
tion of whether Gambino had a conflict of interest.
A § 2255 petitioner is entitled to an evidentiary hearing
on his claim where he alleges facts that, if true, would
entitle him to relief. Sandoval v. United States, 574 F.3d 847,
850 (7th Cir. 2009); Hall v. United States, 371 F.3d 969,
972 (7th Cir, 2004). A hearing, though, is not required
when “the files and records of the case conclusively
show that the prisoner is entitled to no relief,” 28 U.S.C.
§ 2255(b); Cooper v. United States, 378 F.3d 638, 641-42
(7th Cir. 2004). The district court also has the authority
to order discovery or something short of a full-blown
hearing to allow an adequate inquiry into a petitioner’s
claim, or to help the court determine whether a full
hearing is necessary. See Bracy v. Gramley, 520 U.S. 899,
904 (1997); Blackledge v. Allison, 431 U.S. 63, 81 (1977);
Boyko v. Parke, 259 F.3d 781, 790 (7th Cir. 2001); Wright v.
Gramley, 125 F.3d 1038, 1044 (7th Cir. 1997); see also
Rules Governing Section 2255 Proceedings 6, 7. We evalu-
ate the decision whether to order an evidentiary hearing
for abuse of discretion. Brock v. United States, 573 F.3d
497, 499 (7th Cir.), cert. denied, 130 S. Ct. 762 (2009).
Lafuente’s allegations, if believed, entitle him to relief. If
a criminal defendant’s attorney is under investigation
by the prosecutors of her client, there is a conflict. United
States v. Lowry, 971 F.2d 55, 61 (7th Cir. 1992); Thompkins
v. Cohen, 965 F.2d 330, 332 (7th Cir. 1992). Although
No. 08-3670 5
Lafuente will eventually have to show that Gambino
had an actual fear of retaliation, see United States v.
Balzano, 916 F.2d 1273, 1293 (7th Cir. 1990), at this stage,
his motion adequately alleges a claim that would entitle
him to relief if proven.
The government contends that Lafuente’s affidavit is
insufficient to warrant a hearing because it failed to
provide any detail concerning the purported investiga-
tion and fails to explain how Lafuente learned of it. But
it is not within Lafuente’s ability to have personal knowl-
edge of whether Gambino was under investigation or
feared investigation. Just as William Bracy was unable
to marshal evidence of Judge Maloney’s corruption
without discovery, Bracy, 520 U.S. at 909, here, too,
Lafuente’s allegation will require further investigation
before it can be confirmed.
To warrant further investigation, a petitioner must
support a request with more than “mere unsupported
assertions,” and Lafuente did. First, he provided his
own affidavit, which alone may be sufficient. See Kafo v.
United States, 467 F.3d 1063, 1068 (7th Cir. 2006). And
Lafuente also presented the ARDC complaint, which
confirms his allegation that Gambino violated federal
law. Moreover, contrary to the government’s assertion,
Lafuente did explain how he came to know about
Gambino’s criminal acts: after the trial, Lafuente’s
father filed an ARDC complaint and received a record
of Gambino’s other disciplinary complaint. That the
affidavit does not contain the explanation makes no
difference because the § 2255 motion, which does set
6 No. 08-3670
forth this explanation, was sworn under penalty of
perjury, and thus is considered an affidavit. See id. at 1071.
The petitioner’s pro se motion, sworn statement, and
corroborating evidence show that his allegations are
plausible, and are sufficient to warrant further inquiry
by the district court. Accordingly it was an abuse of
discretion to deny the motion without discovery or a
hearing. We therefore remand the case for further pro-
ceedings.
We note that a full evidentiary hearing is not the only
option available to the district court to resolve the
essential disputed facts: whether Gambino was actually
investigated by the U.S. Attorney’s Office, or whether
she feared such an investigation. If she was not investi-
gated, or at least was unaware of any investigation, there
would be no conflict of interest, and Lafuente’s claim
would necessarily fail. Rule 6 of the Rules Governing
Section 2255 Proceedings provides that a judge may
authorize further discovery upon request; Rule 7 autho-
rizes the judge to expand the record without request.
Either option provides a relatively straightforward way
to resolve the crucial issues of fact that underpin
Lafuente’s claim. See Bracy, 520 U.S. at 908 (holding that
discovery is appropriate in a collateral proceeding to
allow an adequate inquiry into a petitioner’s claim); see
also Blackledge, 431 U.S. at 81; Boyko, 259 F.3d at 790;
Wright, 125 F.3d at 1044. The government could
obviate the need for an evidentiary hearing by simply
confirming, through an affidavit, that Gambino was
never under investigation; an affidavit from Gambino
No. 08-3670 7
would confirm whether she feared prosecution. These
discovery methods can help the district court determine
whether a more extensive hearing is necessary.
Because Lafuente’s pro se motion, affidavit, and exhibits
sufficiently allege facts that would entitle him to relief
on his § 2255 motion, the district court erred by denying
the motion prematurely. We remand for further pro-
ceedings.
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