Cabello v. USA., 98-1543

Decision Date18 August 1999
Docket NumberNo. 98-1543,98-1543
Citation188 F.3d 871
Parties(7th Cir. 1999) Maria E. Cabello, Petitioner-Appellant, v. United States of America, Respondent-Appellee
CourtU.S. Court of Appeals — Seventh Circuit

Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:97 CV 72 (2:92 CR 22)--James T. Moody, Judge. [Copyrighted Material Omitted] Before Easterbrook, Kanne, and Diane P. Wood, Circuit Judges.

Diane P. Wood, Circuit Judge.

Just before Maria Cabello's trial on charges of conspiracy to distribute cocaine in violation of 21 U.S.C. sec. 846 began, a lawyer appeared and announced he was there to represent her. He did so, but Cabello was ultimately convicted and sentenced to 121 months in prison. She then brought a collateral attack on her conviction under 28 U.S.C. sec. 2255, claiming that she had received ineffective assistance of both appellate and trial counsel. The district court agreed with respect to appellate counsel and re-entered its judgment against her; it rejected her argument that a conflict of interest tainted the representation she received from trial counsel because the hidden benefactor who provided the trial lawyer was Cabello's former paramour, who was also the ringleader of the alleged conspiracy. We affirm.

I

Maria Cabello and Gilberto Rodriguez-Corral lived together from 1984 until August 1991, when the police raided their home while investigating a drug distribution ring allegedly run by Rodriguez-Corral. Soon thereafter, Rodriguez- Corral vanished, and he has been a fugitive from justice ever since. Cabello, in contrast, was indicted by a federal grand jury (along with 13 others) in February 1992 for conspiring to distribute drugs. At trial, the government presented substantial evidence against Cabello, including $7,000 worth of heroin recovered during the August 1991 raid, quantities of cocaine and marijuana, packaging material, $234,000 in cash, drug sale ledgers recovered during an earlier raid of Cabello's home, and testimony by witnesses who saw Cabello deliver cocaine and accompany Rodriguez-Corral on drug buys.

After Rodriguez-Corral fled, Cabello had trouble supporting herself and her four children. Her financial straits hampered her ability to secure legal representation. She lost her first defense attorney because she could not afford to pay him. When it became clear that she would also be unable to pay her second attorney, Gregory Brown, he filed a motion seeking to be appointed by the court to represent her. On the very day the court was scheduled to rule on the appointment motion, Richard Nunez, an attorney from Brownsville, Texas, appeared in court and announced that he would be representing Cabello. (We note in passing that this lawyer's name is spelled Nunez throughout the record, not "Nunez." We therefore have not used the letter "n" in his name in this opinion.) Nunez filed an appearance with the court and returned to Texas. Later, Dale Robertson, another lawyer from Nunez's firm, returned to represent Cabello at trial. Unbeknownst to the court, Cabello, and the prosecutor, Rodriguez-Corral was paying Nunez's firm to represent Cabello. It was not until after Cabello's trial that this information was brought to the court's attention.

Cabello's case proceeded to trial in August 1992. Although she testified on her own behalf, the jury chose to believe the government's account and found her guilty. After the verdict, the court permitted Robertson to withdraw from the case on the ground that Cabello no longer wanted his services. The court then appointed Robert Truitt to represent Cabello for sentencing and any other post-trial proceedings. Truitt, however, fell down on the job when he neglected to file a notice of appeal, contrary to Cabello's wishes. In February 1997, Cabello, now represented by David Thomas, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. sec. 2255, alleging that the performances of her trial and sentencing counsel had been unconstitutionally deficient. The government agreed that Truitt, insofar as he was acting as appellate counsel, had rendered constitutionally deficient services, but it argued that trial counsel had been adequate.

Eventually, the district court held a hearing on the sec. 2255 petition. At that hearing, Cabello argued that she had been denied effective assistance of trial counsel in violation of the Sixth Amendment because Robertson was being paid by Rodriguez-Corral. This circumstance created a conflict of interest, she claimed, because as a potential co-defendant Rodriguez-Corral had an interest in Cabello's defense that was separate and distinct from her own. She maintained that the trial judge should have realized that Rodriguez-Corral was bankrolling her defense, picked up on the potential conflict of interest, and conducted an appropriate inquiry. Because no such inquiry was undertaken, Cabello asserted that she is entitled to a new trial under Holloway v. Arkansas, 435 U.S. 475 (1978).

In the alternative, Cabello requested a new trial under Cuyler v. Sullivan, 446 U.S. 335 (1980), on the ground that her attorney's performance was diminished by an actual conflict of interest. In particular, Cabello claimed that Robertson's loyalty to Rodriguez-Corral hindered his ability to negotiate a plea bargain for Cabello. For example, Robertson did not suggest using his knowledge of Rodriguez-Corral's whereabouts as a bargaining chip, nor did he inform Cabello of her right not to testify. Cabello further testified that she had not known that Nunez was coming to represent her until he appeared in the courtroom and that she never signed a document requesting his representation. Furthermore, Nunez told her that Robertson was going to represent her at trial because Nunez himself intended to represent Rodriguez-Corral should the need arise.

Robertson also testified at the sec. 2255 hearing. He admitted that he had met with Rodriguez-Corral in a Mexican town just across the border from Brownsville to discuss Cabello's case. According to Robertson, Rodriguez-Corral made it clear that he was not planning to return to the United States. Under the Extradition Treaty between the United States of America and the United Mexican States, art. 9, 31 U.S.T. 5059, T.I.A.S. No. 9656, the Mexican government is not obliged to extradite its own nationals to the United States. Nor has it chosen in the past to exercise its discretion to do so. Robertson thus considered it unlikely that Rodriguez-Corral could be forced to face trial for his role in the conspiracy, nor did he see how Rodriguez-Corral's location could have been used as a bargaining chip for Cabello. He maintained that he had engaged in plea negotiations with the government but had been unable to reach a satisfactory agreement. Last, Robertson recalled discussing Cabello's testimony with her before trial, but he could not remember whether he had specifically informed her of her right not to take the stand.

After the hearing, the court denied Cabello's petition insofar as it related to her trial counsel, but, in light of the ineffectiveness of her appellate counsel, it vacated her sentence and re-entered judgment. In so doing, it rejected Cabello's arguments with regard to Robertson's performance at trial. The court found that it could not reasonably have been expected to deduce who was paying for Cabello's defense, nor was there anything that should have alerted the judge to inquire into the potential conflict of interest. In addition, the court was not persuaded that Robertson's performance had been adversely affected by an actual conflict of interest. We review the district court's determination that Cabello was not denied effective assistance of counsel due to a conflict of interest de novo. Spreitzer v. Peters, 114 F.3d 1435, 1450 (7th Cir. 1997). (We note that, despite Cabello's earlier desire to take a direct appeal, the finding of ineffectiveness of appellate counsel, and the court's re-entry of the underlying judgment, Cabello has not complained about anything in the trial or sentence apart from her ineffectiveness of counsel point. She has therefore waived any other possible arguments that she might have made on direct appeal.)

II

Ineffective assistance of counsel claims generally are evaluated under the standard detailed in Strickland v. Washington: the argument will succeed only if the petitioner demonstrates both that her attorney's performance fell below an objective standard of reasonableness and that she was actually prejudiced by the deficient performance. 466 U.S. 668, 687 (1984). When an ineffective assistance claim is based on an alleged conflict of interest, however, we impose a somewhat lighter burden on the petitioner with regard to the prejudice requirement. Recognizing that loyalty to her client is among the most basic of an attorney's duties and the near impossibility of measuring the precise effect on the defense of representation corrupted by a breach of this duty, we presume prejudice in certain cases. Id. at 692;...

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