[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 07, 2007
No. 06-12043 THOMAS K. KAHN
Non-Argument Calendar 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
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authority.
AFFIRMED.
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