* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-50796

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GUILLERMO ARANGO,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Western District of Texas

USDC No. EP-95-CV-456

- - - - - - - - - -

August 1, 1997

Before JOLLY, BENAVIDES, and PARKER, Circuit Judges

PER CURIAM:*

Guillermo Arango’s (federal prisoner # 61844-080) motion for

leave to appeal in forma pauperis is GRANTED. 

This court formerly granted a certificate of appealability

(COA) on two issues and implicitly denied COA on three other

issues. Application of the COA requirement was mandated by our

decision in United States v. Orozco, 103 F.3d 389, 392 (5th Cir.

1995). The United States Supreme Court decision in United States
2

v. Lindh, __ S. Ct. __ (June 23, 1997), 1997 WL 338568, calls

into question whether the Anti-Terrorism and Effective Death

Penalty Act of 1996 (AEDPA), and its concomitant COA requirement,

apply to this appeal because Arango’s 28 U.S.C. § 2255 motion was

filed in district court prior to the enactment of the AEDPA. 

Because none of Arango’s issues on appeal merits reversal, and

because we need no further briefing from the United States to

decide the appeal, we decline to decide whether Lindh has

overruled Orozco. Instead, we address all the issues raised by

Arango in his initial brief to this court.

Arango argues that he received ineffective assistance of

counsel due to 1) his attorney’s misstatement at the sentencing

hearing that Arango by himself carried over a kilogram of heroin;

2) his attorney’s failure to object to the presentence report

which recommended that Arango be sentenced for the combined

quantity of heroin he and his co-defendant imported; and 3) his

attorney’s conflict of interest during plea negotiations and the

entering of his plea, such that he was made to enter his plea on

misadvice from counsel. Arango also argues that 4) the district

court erred in not conducting an inquiry into whether counsel had

an actual conflict of interest at the beginning of the proceeding

due to his attorney’s representation of co-defendant, and 5) his

guilty plea was not voluntarily and knowingly entered.

Under Strickland v. Washington, 466 U.S. 668, 689-94 (1984),

Arango must show that 1) that his counsel’s performance was
3

deficient in that it fell below an objective standard of

reasonableness, and 2) that the deficient performance prejudiced

his defense. This standard applies in a noncapital sentencing

context. United States v. Seyfert, 67 F.3d 544, 547 (5th Cir.

1995). To establish ineffective assistance of counsel due to a

conflict of interest, Arango must show that his attorney actively

represented conflicting interests and that an actual conflict of

interest adversely affected counsel’s performance. Cuyler v.

Sullivan, 446 U.S. 335, 350 (1994). With respect to Arango’s

plea, he must show that but for the misadvice of counsel, it was

reasonably probable that he 1) would not have pleaded guilty and

2) would have proceeded to trial. James v. Cain, 56 F.3d 662,

667 (5th Cir. 1995). The district court’s failure to conduct an

inquiry pursuant to Fed. R. Crim. P. 44(c) is not a cognizable

constitutional issue in a 28 U.S.C. § 2255 motion. See United

States v. Benavidez, 664 F.2d 1255, 1258 (5th Cir. 1982). 

We agree with the district court that, while Arango’s

attorney may have been deficient during Arango’s sentencing for

failing to object to the presentence report’s recommendation that

Arango’s and codefendant’s quantities of heroin be combined,

Arango has not shown a reasonable probability that his sentence

would be different but for the deficient conduct of his attorney. 

Thus he has not satisfied the second prong of Strickland. 

Arango has not shown that an actual conflict of interest

existed with his attorney’s representation of his co-defendant or
4

that there was any prejudice to his defense if such a conflict

did exist. See Barrientos v. United States, 668 F.2d 838, 840-41

(5th Cir. 1992). 

The record indicates that Arango was fully aware of the

consequences of his plea, including that he was considered to

have jointly undertaken the charged offense with codefendant and

the minimum sentence for the offense. His plea was knowingly and

voluntarily entered.

Accordingly, we AFFIRM for essentially the reasons stated in

the report and recommendation of the magistrate judge, which the

district judge approved and adopted. See United States v.

Guillermo Arango, No. EP-95-CA-456-DB (W.D. Tex. Sept. 10, 1996). 

AFFIRMED.