A mere theoretical division of loyalties is insufficient to demonstrate an actual conflict of interest. Following a jury trial, Julio Burgos-Torres was convicted of criminal possession of a firearm and murder in connection with the shooting death of Jesus Gonzalez, for selling drugs in Burgos-Torres' territory. Two witnesses identified Burgos-Torres as the shooter including Michael Munoz. The conviction was upheld on direct appeal. The habeas court denied Burgos-Torres' petition for a writ of habeas corpus claiming ineffective assistance of trial counsel. Burgos-Torres appealed claiming that the habeas court abused its discretion in denying his petition for certification to appeal and that the denial of his petition for a writ of habeas corpus was improper because his trial counsel, Martin Minnella, was burdened by an actual conflict of interest and failed to present an alibi defense. The Appellate Court dismissed the appeal. The petitioner essentially argued that Minnella or, a past member of Minnella's law firm, previously represented Munoz and that Minnella was burdened by an actual conflict of interest which prevented him from effectively cross-examining Munoz. The habeas court specifically credited Minnella's testimony as credible that Minnella previously had not represented Munoz and found that the petitioner's claim lacked a factual basis. Its conclusion that no actual conflict existed was based upon a credibility determination which the Appellate Court declined to disturb on appeal. Based on the record, the Appellate Court agreed that the petitioner failed to present evidence establishing that Minnella "actively represented conflicting interests" as required by precedent and did not demonstrate a violation of his right to counsel predicated on an actual conflict of interest. The habeas court further rejected the claim that a past member of Minnella's firm had represented Munoz resulting in an actual conflict of interest which was imputed to Minnella. On appeal, the petitioner merely speculated as to the possibility that Minnella compromised his interests. He did not point to a scintilla of evidence in the record to support his assertions or to indicate that Minnella did not adequately cross-examine Munoz. The petitioner did not undermine the habeas court's finding that Minnella thoroughly and vigorously cross-examined Munoz. He failed to allege anything more than a mere theoretical division of loyalties. The alibi defense claim also lacked a factual basis.

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