IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-50796
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUILLERMO ARANGO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-95-CV-456
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August 1, 1997
Before JOLLY, BENAVIDES, and PARKER, Circuit Judges
PER CURIAM:*
Guillermo Arango’s (federal prisoner # 61844-080) motion for
leave to appeal in forma pauperis is GRANTED.
This court formerly granted a certificate of appealability
(COA) on two issues and implicitly denied COA on three other
issues. Application of the COA requirement was mandated by our
decision in United States v. Orozco, 103 F.3d 389, 392 (5th Cir.
1995). The United States Supreme Court decision in United States
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
v. Lindh, __ S. Ct. __ (June 23, 1997), 1997 WL 338568, calls
into question whether the Anti-Terrorism and Effective Death
Penalty Act of 1996 (AEDPA), and its concomitant COA requirement,
apply to this appeal because Arango’s 28 U.S.C. § 2255 motion was
filed in district court prior to the enactment of the AEDPA.
Because none of Arango’s issues on appeal merits reversal, and
because we need no further briefing from the United States to
decide the appeal, we decline to decide whether Lindh has
overruled Orozco. Instead, we address all the issues raised by
Arango in his initial brief to this court.
Arango argues that he received ineffective assistance of
counsel due to 1) his attorney’s misstatement at the sentencing
hearing that Arango by himself carried over a kilogram of heroin;
2) his attorney’s failure to object to the presentence report
which recommended that Arango be sentenced for the combined
quantity of heroin he and his co-defendant imported; and 3) his
attorney’s conflict of interest during plea negotiations and the
entering of his plea, such that he was made to enter his plea on
misadvice from counsel. Arango also argues that 4) the district
court erred in not conducting an inquiry into whether counsel had
an actual conflict of interest at the beginning of the proceeding
due to his attorney’s representation of co-defendant, and 5) his
guilty plea was not voluntarily and knowingly entered.
Under Strickland v. Washington, 466 U.S. 668, 689-94 (1984),
Arango must show that 1) that his counsel’s performance was
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deficient in that it fell below an objective standard of
reasonableness, and 2) that the deficient performance prejudiced
his defense. This standard applies in a noncapital sentencing
context. United States v. Seyfert, 67 F.3d 544, 547 (5th Cir.
1995). To establish ineffective assistance of counsel due to a
conflict of interest, Arango must show that his attorney actively
represented conflicting interests and that an actual conflict of
interest adversely affected counsel’s performance. Cuyler v.
Sullivan, 446 U.S. 335, 350 (1994). With respect to Arango’s
plea, he must show that but for the misadvice of counsel, it was
reasonably probable that he 1) would not have pleaded guilty and
2) would have proceeded to trial. James v. Cain, 56 F.3d 662,
667 (5th Cir. 1995). The district court’s failure to conduct an
inquiry pursuant to Fed. R. Crim. P. 44(c) is not a cognizable
constitutional issue in a 28 U.S.C. § 2255 motion. See United
States v. Benavidez, 664 F.2d 1255, 1258 (5th Cir. 1982).
We agree with the district court that, while Arango’s
attorney may have been deficient during Arango’s sentencing for
failing to object to the presentence report’s recommendation that
Arango’s and codefendant’s quantities of heroin be combined,
Arango has not shown a reasonable probability that his sentence
would be different but for the deficient conduct of his attorney.
Thus he has not satisfied the second prong of Strickland.
Arango has not shown that an actual conflict of interest
existed with his attorney’s representation of his co-defendant or
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that there was any prejudice to his defense if such a conflict
did exist. See Barrientos v. United States, 668 F.2d 838, 840-41
(5th Cir. 1992).
The record indicates that Arango was fully aware of the
consequences of his plea, including that he was considered to
have jointly undertaken the charged offense with codefendant and
the minimum sentence for the offense. His plea was knowingly and
voluntarily entered.
Accordingly, we AFFIRM for essentially the reasons stated in
the report and recommendation of the magistrate judge, which the
district judge approved and adopted. See United States v.
Guillermo Arango, No. EP-95-CA-456-DB (W.D. Tex. Sept. 10, 1996).
AFFIRMED.
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