United States v. David Ross Lei Ross

Court Case Details
Court Case Opinion

FILED

JUN 25 2014

NOT FOR PUBLICATION

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

No. 12-17485

Plaintiff - Appellee,

D.C. Nos. 1:12-cv-00062-DAE-
BMK

v.

1:08-cr-00223-DAE-1

DAVID OPOLLO ROSS,

*

MEMORANDUM

Defendant - Appellant.

UNITED STATES OF AMERICA,

No. 12-17486

Plaintiff - Appellee,

D.C. Nos. 1:12-cv-00086-DAE-
KSC

v.

1:08-cr-00223-DAE-2

LEI LAVARIAS ROSS, AKA Lei L
Lavarias, AKA Lei Lopez,

Defendant - Appellant.

Appeal from the United States District Court

for the District of Hawaii

David A. Ezra, District Judge, Presiding

Argued and Submitted June 11, 2014

*

This disposition is not appropriate for publication and is not precedent

except as provided by 9th Cir. R. 36-3.

Honolulu, Hawaii

Before: W. FLETCHER, IKUTA, and HURWITZ, Circuit Judges.

David and Lei Ross appeal the district court’s denial of their 28 U.S.C. § 2255

motions attacking their convictions for tax evasion and conspiracy to defraud the

United States. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and affirm.

David Ross contends that his attorney, Alan Richey, had an actual conflict of

interest because he was a necessary witness for their defense, and otherwise provided

ineffective assistance of counsel. The district court granted a certificate of

appealability on the actual conflict argument, but denied a certificate of appealability

on three other ineffective assistance claims.

1.

The district court concluded after a two-day evidentiary hearing that

Richey did not have an actual conflict, as he never advised the Rosses to undertake

illegal activity, and because his testimony would not have supported the defense and

would have likely aided the prosecution. Those factual findings were not clearly

erroneous. United States v. Aguirre–Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010).

Because the Rosses failed to make “a substantial showing of the denial

2.

of a constitutional right” on their other ineffective assistance claims, we decline to

2

address the issues not covered by the certificate of appealability. 28 U.S.C.

§ 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483 (2000).

AFFIRMED.

3

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