* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore ordered s ubmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 30 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, vs. CALVIN DEAN PETERS, Defendant - Appellant. No. 00-2095 (D.C. No. CIV-99-623-SC) (D.N.M.)

ORDER AND JUDGMENT *

Before BRORBY , KELLY , and MURPHY , Circuit Judges. **
Petitioner-Appellant Calvin Dean Peters, an inmate appearing pro se, seeks to appeal from the dismissal of his motion under 28 U.S.C. § 2255. Upon the recommendation of the magistrate judge, the distric t court denied the motion, dismissed the case with prejudice, and denied a certificate of appealability. Mr. Peters was convicted of one count of aggravated sexual abuse on an Indian- 2 -

Reservation, 18 U.S.C. §§ 1153, 2241 & 2245(2)(A) ( 1990), and one count of aggravated burglary on an Indian Reservation, 18 U. S.C. § 1153 (1990) & N.M. Stat. Ann. § 30-16-4(C) (1990). He was sentenced o n November 1, 1996, to 210 months imprisonment and 5 years supervised release, to be served consecutive to a 1990 state sentence of 92 years imprisonment for aggravated burglary, kidnapping and criminal sexual penetration of two s tate victims. Mr. Peters claims ineffective assistance of counsel in connect ion with: (1) counsels’ failure to adequately investigate and present an alibi defe nse; (2) one attorney’s “conflict of interest;” and (3) counsels’ failure to raise ce rtain objections at sentencing. In support of his application, Mr. Peters asserts that the district court (1) made erroneous factual findings; (2) abused its dis cretion by refusing to hold an evidentiary hearing and by denying his motion for appointed counsel; (3) erred in concluding that petitioner’s sentencing-related cla ims had already been addressed by the Tenth Circuit in his direct appeal; and (4) applied the wrong legal standard to his “conflict of interest” ineffective assistanc e claim. We have carefully reviewed petitioner’s motions and supporting memoranda and conclude that petitioner has not made “a substantial showing of t he denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). We therefore deny his application for a certificate of appealability. Claims of ineffective assistance of counsel are mix ed questions of law and- 3 -

fact which we review de novo. See United States v. Prows , 118 F.3d 686, 691 (10th Cir. 1997). We find no error. Nor did the c ourt abuse its discretion by denying petitioner’s requests for an evidentiary he aring and for appointed counsel. See Johnson v. Gibson , 169 F.3d 1239, 1253 (10th Cir.), cert. denied , 120 S. Ct. 415 (1999); Rucks v. Boergermann , 57 F.3d 978, 979 (10th Cir. 1995). Further, we agree that two of Mr. Peters’ three sen tencing-related claims have already been considered by the Tenth Circuit in his direct appeal. See United States v. Peters , No. 96-2286, 1998 WL 17750, at *4 (10th Cir. Jan. 20, 1998), cert. denied , 524 U.S. 961 (1998). Mr. Peters’ third sentencing-related ineffective as sistance claim is based on the Assimilative Crimes Act (“ACA”), 18 U.S.C. § 13 . In pertinent part, the ACA provides that Mr. Peters’ federal sentence for aggr avated burglary under 18 U.S.C. § 1153 may not exceed the maximum punishmentallowable for aggravated burglary under New Mexico law at the time of senten cing. See United States v. Hicks , 146 F.3d 1198, 1200 n.2 (10th Cir.), cert. denied , 525 U.S. 941 (1998) (holding that defendant must be sentenced under gui delines in effect at time of sentencing); United States v. Garcia , 893 F.2d 250, 254 (10th Cir. 1989) (“[T]he Assimilative Crimes Act requires courts to impose s entences for assimilative crimes that fall within the maximum and minimum ter ms established by state law.”). Defendants convicted under federal law, incl uding § 13 or § 1153 of title- 4 -

18, must be sentenced in accordance with the senten cing guidelines. 18 U.S.C. § 3551(a). Neither the ACA nor § 3551(a) prohibits the imposition of consecutive sentences, nor is Mr. Peters’ federal sentence othe rwise inconsistent with the ACA or the sentencing guidelines. Finally, we agree with the district court’s resolut ion of petitioner’s ineffective assistance of counsel claims under Stri ckland v. Washington , 466 U.S. 668, 687 (1984). The fact that Mr. Peters’ second ineffective assistance claim alleged that the busy trial schedule of one of his attorneys created a “conflict of interest” does not bring that claim within the scop e of Cuyler v. Sullivan , 446 U.S. 335 (1980). See United States v. Zackson , 6 F.3d 911, 921 (2d Cir. 1993) (“In order to classify [a busy schedule] as a per s e sixth amendment violation, we would have to conclude that virtually all busy defe nse attorneys . . . who have more than one client . . . are inherently incapable of providing an adequate defense . . . .”). Petitioner’s application for a certificate of appea lability is DENIED, and the appeal is DISMISSED. All pending motions are D ENIED. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge