IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-50745
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD C. RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-94-CV-305
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December 1, 1998
Before EMILIO M. GARZA, DEMOSS and BENAVIDES, Circuit Judges.
PER CURIAM:*
Richard C. Rodriguez appeals the denial of his motion to
vacate his federal sentence, filed pursuant to 28 U.S.C. § 2255.
Rodriguez argues that his counsel performed ineffectively
by: inducing him to plead guilty to possession of heroin with
intent to distribute by misinforming him about his potential
sentence; failing to argue that his federal sentence should run
concurrently with an unexpired state sentence under U.S.S.G.
§ 5G1.3; and failing to challenge an alleged ex post facto
violation regarding § 5G1.3. To prevail on this issue, Rodriguez
*
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that this opinion should not be published and is not precedent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.
No. 96-50745
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must prove that his attorney’s performance fell below an
objective standard of reasonableness and that counsel’s deficient
performance prejudiced his defense. Strickland v. Washington,
466 U.S. 668, 687-88 (1984). In order to show prejudice in the
context of a guilty plea, Rodriguez must establish that, but for
counsel’s deficient performance, there is a reasonable
probability that he would not have pleaded guilty and would have
insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59
(1985).
Rodriguez failed to make the requisite showing as to any of
his ineffectiveness claims, all of which are based on the
underlying contention that he was entitled under U.S.S.G.
§ 5G1.3(b) to have his federal sentence run concurrently with an
unexpired state prison term for an unrelated offense. That
underlying argument is meritless because Rodriguez cannot show
prejudice.
Rodriguez’s substantive claim based on § 5G1.3 is not
cognizable under § 2255 because it does not give rise to a
constitutional issue. United States v. Vaughn, 955 F.2d 367, 368
(5th Cir. 1992). Rodriguez’s Ex Post Facto Clause claim
regarding § 5G1.3 is meritless because the sentencing court
properly applied the guideline in effect at the time of
sentencing. See United States v. Carmouche, 138 F.3d 1014, 1017
(5th Cir. 1998). Rodriguez was not entitled to an evidentiary
No. 96-50745
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hearing as to any of these claims. United States v. Drummond,
910 F.2d 284, 285 (5th Cir. 1990).
AFFIRMED.