United States of America v. David Opollo Ross

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID OPOLLO ROSS,
Defendant - Appellant.
No. 12-17485
D.C. Nos. 1:12-cv-00062-DAE-
BMK
1:08-cr-00223-DAE-1
MEMORANDUM*
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEI LAVARIAS ROSS, AKA Lei L
Lavarias, AKA Lei Lopez,
Defendant - Appellant.
No. 12-17486
D.C. Nos. 1:12-cv-00086-DAE-
KSC
1:08-cr-00223-DAE-2
Appeal from the United States District Court
for the District of Hawaii
David A. Ezra, District Judge, Presiding
Argued and Submitted June 11, 2014
FILED
JUN 25 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

-- 1 of 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).
2. Because the Rosses failed to make “a substantial showing of the denial
of a constitutional right” on their other ineffective assistance claims, we decline to
2

-- 2 of 3 --

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

-- 3 of 3 --