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should not be published.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

_____________________________________

No. 95-60008

Summary Calendar

_____________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

DONALD HOOKER,

Defendant-Appellant.

______________________________________________________

Appeal from the United States District Court

for the Northern District of Mississippi

(3:93 CV 175 D)

______________________________________________________

August 24, 1995

Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.

PER CURIAM:1

Donald Hooker appeals the district court's dismissal of his §

2255 petition. We affirm.

I.

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

a six-count indictment with various drug-trafficking and firearm

offenses. Hooker was charged and convicted on the first four

counts, and this court affirmed the conviction. See United States

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

were represented by the same counsel, Mr. Gaines Dyer, and both

signed a "Waiver of Conflict of Interest." 

 Hooker filed a pro se motion to vacate, set aside or correct

the sentence pursuant to 28 U.S.C. § 2255. He asserted that: (1)

the district court violated Fed. R. Crim. P. 44(c) by failing to

inform him of the specific facts and consequences of dual

representation; (2) the district court's failure to inform him of

the consequences of joint representation violated his right of due

process and deprived him of effective assistance of counsel; and

(3) the district court erred in ordering Hooker to pay a fine.

Without holding a hearing or eliciting a response from the

Government, the district court, who had presided over the trial,

denied the motion. The district court found that Hooker had been

capably represented by counsel, that potential conflicts of

interest were properly handled, and that the remaining arguments

lacked merit. Hooker filed a timely notice of appeal. 

II.

A.

 Hooker argues first that he was unable to make a knowing

decision whether to retain separate counsel because the district

court did not make him aware pursuant to Fed. R. Crim. P. 44(c)

that he had a right to separate counsel and that there were

possible consequences to dual representation. However, 

the question presented is not one of constitutional dimension;

when a trial court has no reason to believe that a conflict

exists, its failure to inquire concerning the propriety of

joint representation or to advise a criminal defendant of his

right to conflict-free representation is not in itself a

denial of his constitutional rights.
3

United States v. Benavidez, 664 F.2d 1255, 1258 (5th Cir.), cert.

denied, 457 U.S. 1121 (1982). Thus, Hooker's claim concerning the

district court's failure to comply with Rule 44(c) is not

cognizable in a § 2255 motion. Moreover, because the issue could

have been raised on direct appeal, we should not consider it unless

failure to do so would result in a miscarriage of justice. See

United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). Hooker

has not demonstrated such a circumstance. 

B. 

Hooker argues further, however, that the district court's

noncompliance with Rule 44(c) resulted in a violation of his Sixth

Amendment right to effective assistance of counsel. However, joint

representation is not unconstitutional per se. Holloway v.

Arkansas, 435 U.S. 475, 482 (1978). To establish a Sixth Amendment

violation in this context, a movant must demonstrate that an actual

conflict of interest adversely affected his lawyer's performance.

Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). In his motion,

Hooker presents no facts to show that counsel's performance was

deficient or that he labored under an actual conflict. Rather, he

merely rephrases his argument that the district court failed to

comply with Rule 44(c). Thus, his arguments are too conclusory to

raise a constitutional issue. See United States v. Pineda, 988

F.2d 22, 23 (5th Cir. 1993). 

C.

 Hooker argues next that the district court erred in imposing

a fine at sentencing without a determination on the record that
4

Hooker was able to pay the fine. The question of the propriety of

a fine is not cognizable under § 2255 because it is a sentencing

issue which could have been raised on direct appeal and is not of

constitutional dimension. See United States v. Segler, 37 F.3d

1131, 1137 (5th Cir. 1994); United States v. Faubion, 19 F.3d 226,

233 (5th Cir. 1994). The district court correctly rejected this

claim. 

AFFIRMED.