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March 16, 2026 Get Citation Alerts Download PDF Add Note

United States v. Joshua Cobb

Court of Appeals for the Eleventh Circuit

• Citations: None known
• Docket Number: 24-14174
• Precedential Status: Non-Precedential

• Nature of Suit: NEW

• Opinion

• Authorities (9)

• Cited By (0)

• Summaries (0)

• Similar Cases (35)

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Combined Opinion

USCA11 Case: 24-14174 Document: 28-1 Date Filed: 03/16/2026 Page: 1 of 5

NOT FOR PUBLICATION

In the
United States Court of Appeals
For the Eleventh Circuit

No. 24-14174
Non-Argument Calendar

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus

JOSHUA GRANT COBB,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:24-cr-00136-PGB-RMN-1

Before LUCK, LAGOA, and MARCUS, Circuit Judges.
PER CURIAM:
Joshua Cobb is appealing his convictions for drug and fire-
arm offenses. Cobb argues that the district court reversibly erred
by failing to sua sponte inquire into a conflict of interest between
USCA11 Case: 24-14174 Document: 28-1 Date Filed: 03/16/2026 Page: 2 of 5

2 Opinion of the Court 24-14174

him and his counsel based on the sentence-appeal waiver. After
careful review, we affirm.
We review claims involving a counsel’s conflict of interest
de novo. United States v. Williams, 902 F.3d 1328, 1332 (11th Cir.
2018).
The Sixth Amendment guarantees that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the As-
sistance of Counsel for his defence.” U.S. Const. amend. VI. The
right to effective assistance of counsel “includes the right to counsel
who is unimpaired by conflicting loyalties.” Duncan v. Alabama, 881
F.2d 1013, 1016 (11th Cir. 1989) (involving a conflict-of-interest
claim raised in a 28 U.S.C. § 2254 habeas corpus proceeding). A
district court has a duty to inquire into a potential conflict of inter-
est either upon an objection or “where a trial court knows or rea-
sonably should know that a particular conflict exists -- whether that
conflict relates to joint representation of codefendants or to other
conflicts.” Dallas v. Warden, 964 F.3d 1285, 1303 (11th Cir. 2020).
If the court is on notice and fails to inquire into the conflict,
“reversal is only warranted if the petitioner shows an actual conflict
that negatively affected his attorney’s performance.” Id. at 1303–
04. Reversal is “automatic” when a trial court improperly requires
joint representation of codefendants over timely objection. Id. at
1302–03. The defendant must show an “actual conflict” because a
speculative or merely hypothetical conflict of interest does not
yield a Sixth Amendment violation. Reynolds v. Chapman, 253
F.3d 1337, 1342–43 (11th Cir. 2001). “An ‘actual conflict’ of interest
USCA11 Case: 24-14174 Document: 28-1 Date Filed: 03/16/2026 Page: 3 of 5

24-14174 Opinion of the Court 3

occurs when a lawyer has ‘inconsistent interests.’” Freund v. Butter-
worth, 165 F.3d 839, 859 (11th Cir. 1999). The inquiry into the ex-
istence of an actual conflict is “fact-specific.” Id. The burden is on
the defendant to “point to specific instances in the record to suggest
an actual conflict or impairment of [his] interests.” United States v.
Mers, 701 F.2d 1321, 1328 (11th Cir. 1983) (citation modified). A
record that shows only the theoretical division of counsel’s loyal-
ties is not enough to establish that counsel had an actual conflict of
interest. Mickens v. Taylor, 535 U.S. 162, 171 (2002).
To prove adverse effect, a defendant must show three ele-
ments: (1) “the defense attorney could have pursued a plausible al-
ternative strategy”; (2) the “alternative strategy was reasonable”;
and (3) “the alternative strategy was not followed because it con-
flicted with the attorney’s external loyalties.” Reynolds, 253 F.3d at
1343. “If there is a guilty plea involved, [we] look[] at whether the
attorney’s actual conflict adversely affected the defendant’s deci-
sion to plead guilty.” Pegg v. United States, 253 F.3d 1274, 1278 (11th
Cir. 2001).
Although a claim of ineffective assistance of counsel may be
raised on direct appeal, we rarely consider the claim at that stage
unless the record is sufficiently developed, meaning the district
court had an opportunity to entertain the claim and develop a fac-
tual record. United States v. Patterson, 595 F.3d 1324, 1328–29 (11th
Cir. 2010). Even where the record contains some indication of de-
ficient performance, claims of ineffective assistance are generally
more properly pursued through a collateral attack to a conviction
USCA11 Case: 24-14174 Document: 28-1 Date Filed: 03/16/2026 Page: 4 of 5

4 Opinion of the Court 24-14174

and sentence. Id. A sentence-appeal waiver precludes a defendant
from attempting to attack, in a collateral proceeding, his sentence
through a claim of ineffective assistance of counsel during sentenc-
ing. Williams v. United States, 396 F.3d 1340, 1342 (11th Cir. 2005).
But the waiver does not necessarily preclude a defendant from rais-
ing ineffective-assistance claims concerning counsel’s conduct dur-
ing the plea proceedings. Id. at 1342 n.2.
Here, Cobb argues that the district court reversibly erred by
failing to sua sponte inquire into an “obvious conflict of interest”
between him and his counsel; he bases this alleged conflict of inter-
est on the appeal waiver in his plea agreement, which prohibited
him from raising ineffective-assistance-of-counsel claims on direct
appeal or in a 28 U.S.C. § 2255 motion to vacate. We find no merit
to this claim. For starters, Cobb is not entitled to automatic rever-
sal because he did not object below and this case does not involve
counsel’s joint representation of codefendants. Dallas, 964 F.3d at
1302–04. Further, he has not shown that the court had a duty to
inquire into other potential conflicts because he did not raise any
objection at the plea hearing, and he has put forth no basis for why
the court should have known that a potential conflict existed. Id.
at 1303.
Nor, in any event, can Cobb show an actual conflict. See
Reynolds, 253 F.3d at 1342–43. The appeal waiver in Cobb’s plea
agreement prohibited him from appealing his sentence except in
certain circumstances and it did not explicitly prohibit him from
USCA11 Case: 24-14174 Document: 28-1 Date Filed: 03/16/2026 Page: 5 of 5

24-14174 Opinion of the Court 5

raising an ineffective-assistance claim in a § 2255 proceeding; in-
deed, § 2255 is the method by which our Court generally prefers
those claims to be pursued. Patterson, 595 F.3d at 1328–29. More-
over, under our case law, even if the sentence-appeal waiver pre-
cluded him from attempting to collaterally attack his sentence
through a claim of ineffective assistance of counsel, it would not
necessarily preclude him from bringing an ineffectiveness claim
concerning counsel’s conduct during his plea agreement. See Wil-
liams, 396 F.3d at 1342. Instead, Cobb offers a generalized argu-
ment that a conflict exists anytime a defendant agrees to an appeal
waiver in a plea agreement. In so doing, he has only raised facts
that show a “speculative[] or merely hypothetical” conflict and has
failed to “point to specific instances in the record to suggest an ac-
tual conflict or impairment of [his] interests.” Reynolds, 253 F.3d at
1342–43; Mers, 701 F.2d at 1328 (citation modified). Nor, finally,
has Cobb shown how his counsel’s potential conflict negatively af-
fected his decision to plead guilty. Pegg, 253 F.3d at 1278. 1
AFFIRMED.

1 To the extent Cobb argues in his reply brief that independent counsel “plau-

sibly could have advised” him not to waive his right to challenge counsel’s
performance on appeal, we do not consider arguments that were not raised in
an initial brief. See United States v. Castillo, 899 F.3d 1208, 1215 (11th Cir. 2018)
(“[A]n appellant in a criminal case may not raise an issue for the first time in a
reply appellate brief.”) (citation modified).