IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10501
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MILTON EUGENE ROBINS,
Respondent-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:97-CV-920-G
(3:90-CR-127-1-G)
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April 27, 2000
Before DAVIS, DUHÉ, and DeMOSS, Circuit Judges.
PER CURIAM:1
Milton Eugene Robins (#02993-078) has appealed the denial of
his motion to vacate, set aside, or correct judgment under 28
U.S.C. § 2255. Robins contends that he received ineffective
assistance of counsel because his trial attorney, Robert Smith,
labored under a conflict of interest. Robins contends that Smith
represented persons who were cooperating with the Government
against Robins. Because of his desire to shield those persons,
Robins argues, Smith failed to present the testimony of Donald Brow
in support of Robins's motion to suppress evidence seized from his
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this opinion should not be published and is not precedent except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.
house pursuant to a search warrant. Robins contends that Brow
would have testified that information was attributed falsely to him
in the affidavit supporting the issuance of the search warrant.
In the context of multiple-client representation, the standard
for judging whether a defendant has received ineffective-assistance
because his attorney labored under a conflict of interest is
provided by Cuyler v. Sullivan, 446 U.S. 335 (1980). Under Cuyler,
Robins must establish that an actual conflict of interest adversely
affected his lawyer’s performance. If Robins can make such a
showing, then prejudice is presumed. Beets v. Scott, 65 F.3d 1258,
1264 (5th Cir. 1995) (en banc). "The determinations of actual
conflict and adverse effect are mixed questions of fact and law,
which we review de novo." Perillo v. Johnson, ___ F.3d ___ (5th
Cir. Mar. 2, 2000, No. 98-20653), 2000 WL 235227, *2.
“Adverse effect” is a less onerous standard than the outcome-
determinative “prejudice” standard of Strickland v. Washington, 466
U.S. 668, 687 (1984). Under this standard, Robins must show that
some plausible defense strategy or tactic might have been pursued
but was not, because of the conflict of interest. Perillo, 2000 WL
235227, at *30.
Robins cannot show that Smith's alleged conflict could have
had anything to do with the denial of his motion to suppress. The
motion was decided on briefs prepared and filed by co-counsel prior
to Smith's involvement in the case. Smith, who appeared for Robins
for the first time on the date scheduled for the hearing on the
motion, did not present or attempt to present oral argument
regarding the motion. Instead, the argument was handled by co-
counsel.
Applying Franks v. Delaware, 438 U.S. 154 (1978), the district
court held that the search-warrant affidavit was sufficient,
without consideration of the challenged factual assertions, to show
probable cause. For that reason, the court held, Robins was not
entitled to a hearing. Because the district court refused to
permit Robins to present evidence in support of the motion to
suppress, Robins cannot show that evidence could have been
presented by Smith, but was not, because of Smith's alleged
conflict of interest.
Robins has briefed other issues which were not certified for
appeal in this court's order partially granting Robins's request
for a certificate of appealability ("COA"). This court's appellate
review is limited to issues specified in the order granting COA.
See United States v. Kimler, 167 F.3d 889, 892 n.4 (5th Cir. 1999).
The judgment is
AFFIRMED.