1 Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular cases

on the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession."

Pursuant to that Rule, the court has determined that this opinion

should not be published. UNITED STATES COURT OF APPEALS

for the Fifth Circuit

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No. 95-60026

Summary Calendar

_____________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

DONALD RAY REED,

Defendant-Appellant.

______________________________________________________

Appeal from the United States District Court

for the Northern District of Mississippi

(3:93 CV 200 (92 CR 026))

______________________________________________________ August 24, 1995

Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.

PER CURIAM: 1

Donald Ray Reed challenges the district court's dismissal of

his § 2255 petition. We affirm.

I.

Reed and his co-defendant, Donald Hooker, were charged in a

six-count indictment with various drug tr afficking and firearm

offenses. At trial, both Reed and Hooker were represented by the

same counsel, Mr. Gaines Dyer. Both signed a "Waiver of Conflict

of Interest." Reed was convicted on all counts charged. On direct2

appeal, this court reversed Reed's conviction for unlawful

possession of a firearm with an obliterated serial number (count 6)

and affirmed the conviction on all of the other counts. See United

States v. Hooker , 997 F.2d 67, 69 (5th Cir. 1993).

Reed then filed a pro se motion to vacate, set aside or

correct the sentence pursuant to 28 U.S.C. § 2255. The petition is

based primarily on Reed's contention that he was denied effective

assistance of counsel. Before the Government was served or filed

a response, the district court, who presided over the trial, denied

the motion. The court found that Reed was capably represented by

qualified cou nsel, that potential conflicts of interest were

properly handled, and that the remaining allegations lacked merit.

Reed filed a timely notice of appeal.

II.

Reed makes two arguments in support of his claim that his

counsel provided ineffective assistance: (1) that his counsel's

representation of both him and Hooker created a conflict of

interest, and (2) that counsel failed to call a witness that could

have rebutted the testimony of the government's main witness. We

address each of these arguments in turn.

A.

To establish ineffe ctive assistance of counsel, a defendant

must show tha t counsel's actions were deficient and that the

defendant was prejudiced as a result. S trickland v. Washington

,

466 U.S. 668, 698 (1984). Joint representation is not a per se

violation of the Sixth Amendment. B urger v. Kemp

, 483 U.S. 7 76,2 In his petition to the district court, Reed also alleged

in this regard that counsel: (1) failed to present evidence that

Hooker did not kill the CI and DEA agent Craig because Reed refused

to help him; and (2) failed to present mitigating evidence at

sentencing that Reed had prevented Hooker from killing the CI and

the agent. Because Ree d does not reiterate these arguments on

appeal, we deem them abandoned.

3 783 (1987). Rather, the petitioner must show that there was an

a c tual conflict of interest that adversely affected counsel's

performance. Id. As this court has explained:

An actual conflict of interest ex ists whenever one

defendant stands to gain significantly by advancing

plausible arguments that are damaging to the cause of a

co-defendant whom counsel is also representing.

Preju d ice is presumed with respect to a defendant's

inef f ective assistance of counsel claim only if the

defendant demonstrates that counsel actively represented

conflicting interests a nd that an actual conflict of

interest adversely affected couns el's performance.

"Adverse effect" is a less onerous standard, of course,

than the outcome-determinative "prejudice" standard.

United States v. McCaskey , 9 F.3d 368, 381 (5th Cir. 1993), cert.

denied , 114 S. Ct. 1565 (1994).

Reed argues that counsel's representation of both him and

Hooker prevented him from pursuing Reed's defense theory that the

sale of drugs to a confidential informant ("CI") was the sole act

of Hooker because it conflicted with Hooker's alibi defense. 2

However, the record belies Reed's assertions. It reveals that the

defendants employed a united "it didn't happen" strategy, through

which they attacked the credibility of the CI and unintelligibility

of the recorded conversations from the wire that the CI wore on the

day in question.

At trial, Reed testified that although the "CI" attempted to

purchase drugs from him at Reed's residence on January 29, 1992,4

Reed told him that he did not sell drugs. Reed testified that he

then left the house to go dow n the street, leaving the CI in the

h ouse. According to Reed, when he returned to the house, the CI

was gone. Hooker testified that although he had been at Reed's

house earlier in the day, he had left before the CI arrived. Reed

confirmed that Hooker had left before the CI's arrival. Other

witnesses at the house on that day confirmed Reed and Hooker's

story.

The CI presented a much different version of the events. He

testified that both Reed and Hooker were at Reed's house when he

approached Reed to purchase drugs. According to the CI, Reed

stated that he did not sell drugs and left the house, leaving the

CI with Hooker. When Reed returned to the house after walking down

the street and talking to someone in a car, he asked the CI whether

Hooker had gotten him the drugs. When the CI replied no, Reed

talked to Hooker for a while. Hooker then asked the CI to walk

down the street with him. After they had walked down the street,

Hooker gave the CI some cocaine which he retrieved from his

baseball cap.

Hooker's alibi defense was therefore not inconsistent with

Reed's defense that he did not sell the drugs to the CI. T he jury,

however, chose not to credit the defendants' version of the events,

choosing instead the version offered by the CI. Reed now argues in

retrospect that his counsel was ineffective for having chosen the

"united front" ap proach rather than a "shifting the blame"

approach.3 Reed's also alleges that because of the joint

representation counsel was precluded from: exploring possible plea

negotiations, including the possibility that Reed would testify for

the prosecution; chall enging the admission of evidence that was

prejudicial to one client but favorable to the other; and calling

Hooker as a witness. These arguments are too conclusory to raise

a constitutional issue. S ee United States v. Pineda

, 988 F.2d 22,

23 (5th Cir. 1993).

5 In United States v. Benavidez

, 664 F.2d 1255, 1259-61, we

rejected a similar argument, stating:

Taken to its limit, appellant's argument would

necessitate a per se rule against requiring s eparate

representation: every time a lawyer represents more than one

defendant, h e is precluded from "shifting the blame" to the

client against whom the government presents the stronger case. It has long been settled, however, that joint representation

is not unconstitutional per se. And it has long been

recognized that "[j]oint representation is a means of insuring

against recipro cal recrimination. A common defense often

gives strength against a common attack."

Thus, we d oubt that there can be a constitutional

violation when the only claim of conflict is that a defendant

should have abandoned t he common defense and invited

reciprocal recrimination, not because the government

introduced evidence indicating the defendant's innocence, but

solely because the government made a stronger case against his

codefendant. We have routinely rejected claims that defense

counsel needed to be free to abandon a "united front" strategy

. . . . Even if a constitutional violation could be proved in

this manner, neither defendant has demonstrat ed an actual

conflict because neither has shown that he stood "to gain

significantly" by abandoning the common defense.

Id. at 1260-61 (citations and internal quotations omitted). As in

Benavidez , Reed does not argue that counsel had reason to believe

at the outset that the united strategy was not in his best interest

or that a plausible alternative was available. Thus, the district

court did not err in dismissing Reed's conflict of interest claim. 36 B.

Reed argues next that counsel was ineffective when he failed

to call Reed's cousin , Clifton McDaniel, to rebut the CI's

testimony and to corroborate Reed's defense. He argues that, had

counsel called McDaniel, the outcome would have been different. At

trial, the CI testified that before the January 29, 1992 drug

purchase, he had previously purchased drugs from Reed and had also

accompanied McDaniel when he purchased drugs from Reed. According

to Reed, had McDaniel been cal led as a witness, he would have

testified that the CI had never gone with him to buy drugs from

Reed.

The record reveals that counsel strenuously objected to the

CI's testimony concerning McDanie l, but was overruled. More

importantly, it reveals that counsel impeac hed the CI on crossexamination by developing testimony that at the time the CI claimed

he went with McDaniel to buy drugs from Reed, Reed was serving a

prison sentence on an unrelated charge. McDaniel's testimony would

have only underscored this point. Counsel's decision not to call

McDaniel to further contradict the CI's testimony was a reasonable

strategic choice, not a serious error. Thus, this claim also

fails.

III.

Reed next raises two issues for the first time on appeal,

namely: (1) that the indictment should be dismissed because it was

based on perjured testimony; and (2) that he was placed in double

j eopardy when both criminal charges and a civil forfeiture4 Reed also filed motions seeking the production of grand

jury transcripts and forfeiture notices, as well as a 20-day

extension to file a reply brief. Given our disposition of the

appeal, we deny those motions. We also deny Reed's request for a

copy of the "Waiver of Conflict of Interest" because it is already

in the record.

7 complaint were brought against him based on the same offenses.

"[I]ssues raised for the first time on appeal `are not reviewable

by this court unless they involve purely legal questi ons and

fai lure to consider them would result in manifest injustice.'"

United States v. Garcia-Pillado

, 898 F.2d 36, 39 (5th Cir. 1990)

(quoting Self v. Blackburn

, 751 F.2d 789, 793 (5th Cir. 1985)).

Reed's arguments do not meet this criteria.

Finally, we note that Reed does not address on appeal the

remaining issues raised in his § 2255 motion. These claims are

therefore deemed abandoned. S ee Brinkmann v. Dallas County Deputy

Sheriff Abner , 813 F.2d 744, 748 (5th Cir. 1987).

AFFIRMED. 4