govinfo:USCOURTS-okwd-5_20-cv-00527-0

IN THE UNITED STATES DISTRICT COURT FOR THE    
 WESTERN DISTRICT OF OKLAHOMA 
 
UNITED STATES OF AMERICA, ) 
 ) 
Plaintiff ) 
 ) 
vs. )  No. CR-15-126-C 
 )      CIV- 20-527-C 
CURTIS ALLEN ANTHONY, ) 
 ) 
Defendant ) 
 
 MEMORANDUM OPINION AND ORDER 
 
 Defendant filed a pro se Motion pursuant to 28 U.S.C. § 2255 seeking to vacate, set 
aside, or correct his sentence.  The Court appointed counsel to assist Defendant and 
counsel filed an Amended Motion.  In the Amended Motion, Defendant argues that his 
trial counsel was ineffective in two respects – 1) in failing to file an appeal of his 
convictions and sentences and 2) that a conflict of interest existed during trial counsel’s 
representation of him at trial.  Plaintiff has filed a Response  arguing Defendant has not 
demonstrated he is entitled to relief.  The Court conducted a hearing and heard the 
testimony of Defendant, his ex-wife, and his trial counsel. 
 To prevail on an ineffective assistance of counsel claim, Defendant must 
demonstrate that his attorney performed deficiently and that the performance prejudiced 
him.  See Strickland v. Washington, 466 U.S. 668, 687 (1984).   “T o establish deficient 
performance, a defendant must show ‘counsel’s representation fell below an objective 
standard of reasonableness.’”  United States v. Deiter, 890 F.3d 1203, 1209 (10th Cir. 
2018) (quoting Strickland, 466 U.S. at 688).  “To establish prejudice, ‘[t]he defendant 
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must show that there is a reasonable probability that, but for counsel’s unprofessional 
errors, the result of the proceeding would have been different.   A reasonable probability 
is a probability sufficient to undermine confidence in the outcome.’”  Deiter, 890 F.3d at 
1209 (quoting Strickland, 466 U.S. at 694).  “The focus of the inquiry is ‘whether 
counsel’s deficient performance renders the result of the trial unreliable or the proceeding 
fundamentally unfair.’”  Deiter, 890 F.3d at 1209 (quoting Lockhart v. Fretwell, 506 U.S. 
364, 372 (1993)). 
 Defendant’s first argument is that his trial counsel failed to appeal his conviction 
and sentence.  According to Defendant, he instructed counsel to file the appeal shortly 
after trial, yet his trial counsel did not file the appeal.  Defendant supports this assertion 
with an affidavit.   The failure to file an appeal when requested by a client is ineffective 
assistance of counsel.  See Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000); United States 
v. Williamson, 859 F.3d 843, 851 (10th Cir. 2017).  There is no requirement of proof that 
the appeal has merit.  Peguero v. United States, 526 U.S. 23, 28 (1999).  If Defendant did 
in fact tell trial counsel to file an appeal and counsel failed to do so, Defendant is entitled 
to relief.  Id.  In response to Defendant’s Motion, Plaintiff has filed an affidavit from trial 
counsel which states the only issue Defendant wished to appeal was the restitution issue 
and that issue was appealed.  Plaintiff also notes that Defendant’s story regarding his 
conversations with trial counsel have changed over time.  When Defendant first filed a 
§ 2255 Motion, that document asserted that he was “not offered to appeal by counsel.”   
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(Dkt. No. 470).  Now Defendant states a conversation did occur, but that trial counsel only 
appealed the restitution, contrary to Defendant’s request.  At the hearing, Defendant 
recounted a very abrupt meeting with counsel and stated that was the only meeting between 
conviction and sentencing.  According to Defendant, he told counsel at that meeting he 
wanted to “appeal my case.”  Trial counsel testified that he had several post-trial meetings 
with Defendant and that despite his urging, Defendant did not want to appeal his conviction 
or sentence.  According to trial counsel’s testimony, Defendant was concerned that if he 
appealed, he would get a longer sentence.  Trial counsel testified that Defendant’s primary 
concern was the restitution issue, as Defendant had a business deal that was his “retirement 
plan.”   
After consideration of the arguments raised in the pleadings and the testimony at 
trial, the Court finds Defendant only sought to appeal the restitution issue.  This 
determination is based on Defendant’s changing story in his various § 2255 Moti ons, and 
the lack of credibility in Defendant’s testimony.  Contrary to Defendant’s testimony at the 
evidentiary hearing, the billing records of trial counsel reflect trial counsel and Defendant 
met approximately twice a month in six  months following the jury’s verdict. *  Further 
challenging Defendant’s version of events is the fact that trial counsel did in fact file an 
appeal.  It strains belief to find that trial counsel would appeal one aspect of the trial at 
 
* Trial counsel’s time records were not submitted as evidence at the evidentiary hearing.  
However, pursuant to 28 U.S.C. § 2255(b) the Court may consider the “files and records” of the 
case in determining if relief is warranted. 
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Defendant’s request but not add in the additional aspects of which Defendant now 
complains.  Trial counsel’s willingness to challenge rulings of the Court is evidenced by 
his prior appeal of the dismissal and reinstatement of the Superseding Indictment.  These 
facts strongly suggest that trial counsel would have appealed any issue requested by 
Defendant.  The Court finds Defendant lacks credibility and his testimony will be 
disregarded.  Thus, the only logical conclusion from the facts before the Court is that the 
restitution issue was the only issue Defendant requested be appealed.  Defendant’s Motion 
will be denied on this issue. 
 Defendant’s second argument of ineffective assistance is ba sed on trial counsel’s 
allegedly inappropriate contact and requests of Defendant’s then wife.  According to 
Defendant, during his representation trial counsel repeatedly made sexual innuendoes, 
requested private meetings, sought contact on social media, and other conduct seeking 
unprofessional contact with the woman.  The Court finds Defendant’s ex-wife’s testimony 
too general to offer any meaningful weight on the issue.  Defendant’s ex-wife could 
recount only one specific interaction with trial counsel whi ch occurred at Defendant’s 
initial appearance.  Other than that, her testimony was limited to discussion of her feelings 
about trial counsel rather than any specific conduct.  In an effort to bolster his claim, 
Defendant directs the Court to complaints by other women about trial counsel.  Defendant 
notes that these contacts occurred during trial counsel’s representation of him and that trial 
counsel was disciplined by the Oklahoma Bar Association for this conduct. 
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“The Sixth Amendment’s guarantee of the right to counsel ‘includes the right to 
representation that is free from conflicts of interest.’”  United States v. Williamson, 859 
F.3d 843, 851 (10th Cir. 2017) (quoting Gardner v. Galetka, 568 F.3d 862, 886 (10th Cir. 
2009)).  A conflict can be either actual  or potential.   “ An actual conflict of interest 
therefore means a ‘conflict that affected counsel’s performance —as opposed to a mere 
theoretical division of loyalties.’ ”  Williamson, 859 F.3d at 852 (quoting Mickens v. 
Taylor, 535 U.S. 162, 171 (2002)).  Defendant does not offer any evidence that the alleged 
interaction with his ex -wife affected counsel’s performance.  Therefore, Defendant has 
not demonstrated an actual conflict existed.  Before it can support an ineffective assistance 
of counsel claim, a potential conflict must convert to an actual conflict.  Williamson, 859 
F.3d at 852.  This conversion occurs when “ over the course of litigation, the defendant’s 
interests actually clash with his attorney’s interests.”  Id.   
After consideration of the arguments raised by Defendant,  as well as the evidence 
offered at the hearing, the Court finds Defendant has failed to offer any evidence or 
argument that trial counsel’s interaction with his ex-wife created a situation where tri al 
counsel’s interests conflicted with Defendant’s interest.  The Court notes that the one 
specific incident occurred nearly two years before trial, yet Defendant’s ex-wife never 
voiced her concerns to any Court personnel or made any report to the Oklahoma Bar 
Association.  Consequently, the Court finds the testimony to have minimal evidentiary 
value in determining whether the alleged interactions support an ineffective assistance of 
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counsel claim.  Thus, Defendant has failed to demonstrate conflict of interest sufficient to 
demonstrate his trial counsel was ineffective.   
CONCLUSION 
 For the reasons set forth herein, Defendant’s Amended Motion Under 28 U.S.C. 
§ 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Dkt. 
Nos. 564, 5) is DENIED.  A separate judgment will issue.  
 IT IS SO ORDERED this 30th day of November 2022.   
 
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