IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-20328
Summary Calendar
MARVIN R. ANSLEY,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
- - - - - - - - - -
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-96-CV-617
- - - - - - - - - -
June 30, 1999
Before DAVIS, DUHÉ, and PARKER, Circuit Judges.
PER CURIAM:1
Marvin R. Ansley (# 675445), a state prisoner, has appealed
the dismissal of his petition for a writ of habeas corpus. Ansley
has also moved to expedite the appeal. The motion is DENIED AS
MOOT.
The district court’s order was based on findings made and
conclusions reached after an evidentiary hearing. Accordingly, we
review the district court’s findings of fact for clear error and
its legal conclusions de novo. See Kirkpatrick v. Whitley, 992
F.2d 491, 494 (5th Cir. 1993).
1
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this opinion should not be published and is not precedent except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.
Ansley contends that he received ineffective assistance of
trial counsel because his attorney, William Goode, labored under a
conflict of interest because of Goode’s dual representation of
Ansley and Ansley’s codefendant, Kristi Barnes. Ansley contends
that Goode arranged for Barnes to receive a probated sentence in
exchange for Ansley’s guilty plea.
The standard for judging ineffective assistance allegations in
the context of multiple client representation is provided by Cuyler
v. Sullivan, 446 U.S. 335 (1980). Under Cuyler, Ansley must
establish that an actual conflict of interest adversely affected
his lawyer’s performance. Cuyler, 446 U.S. at 350.
Ansley argues that, under Holloway v. Arkansas, 435 U.S. 475
(1978), he is not required to show an adverse effect. Even under
Holloway, however, Ansley must show as a preliminary matter that
his attorney labored under an actual conflict of interest. See
United States v. Medel, 592 F.2d 1305, 1310-11 & n.2 (5th Cir.
1979); see also United States v. Alvarez, 580 F.2d 1251, 1255 (5th
Cir. 1978).
Ansley does not contend that there was probative evidence
which could have been offered by counsel or an argument which could
have been advanced by counsel which would have benefitted one of
his clients at the expense of the other. See, e.g., United States
v. Rico, 51 F.3d 495, 508 (5th Cir. 1995); Barrientos v. United
States, 668 F.2d 838, 840-41 (5th Cir. 1982); Jones v. Henderson,
549 F.2d 995, 997 (5th Cir. 1977). Barnes pleaded guilty and was
sentenced to a probated term of imprisonment prior to the entry of
Ansley’s guilty plea. If, as Ansley contends, Barnes’s probation
was contingent upon Ansley’s guilty plea, Barnes would not have
been permitted to enter a plea until after Ansley had pleaded
guilty.
Most of Ansley’s arguments go to the question whether the
trial court had knowledge or constructive knowledge triggering its
duty under Holloway to inquire whether the attorney’s joint
representation involve an actual conflict of interest. Ansley
contends that he need not show an actual conflict because the
question whether there was a conflict was put squarely to the trial
court in his motion to dismiss, but was ignored. Ansley’s argument
is without merit. The automatic reversal rule in Holloway is
implicated only in cases involving an actual conflict. See Medel,
592 F.2d at 1310; see also Barrientos, 668 F.2d at 840-41. Because
no actual conflict has been shown, the question whether the trial
court had a duty to inquire into the existence of a conflict is
“irrelevant.” Medel, 592 F.2d at 1312-13.
JUDGMENT AFFIRMED; MOTION DENIED AS MOOT.