United States v. Rogers , 74 F. App'x 419 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS September 10, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-40398
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHANNON ROGERS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-02-CR-31-3
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Shannon Rogers, Texas prisoner # 696608, appeals the denial
of his pleading designated “Notice of Conflict,” which the
district court liberally construed as a motion to substitute
appellate counsel.
We hold that the district court did not err in liberally
construing Rogers’s pro se pleading as a motion to substitute
appellate counsel. Furthermore, the district court did not err
*
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that this opinion should not be published and is not precedent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.
No. 03-40398
-2-
in refusing to hold a Garcia** hearing. A Garcia hearing in
Rogers’s case was unnecessary given (1) that Rogers himself
brought the alleged conflict to the court’s attention in an
effort to secure new appellate counsel with the intent of
exercising his right to conflict-free representation and (2) that
there was no “actual conflict of interest.” See United States v.
Greig, 967 F.2d 1018, 1022 (5th Cir. 1992).
The grounds on which Rogers sought conflict-free
representation do not constitute an “actual conflict” and are
more properly characterized as claims of ineffective assistance,
which as a general rule are not resolved on direct appeal. See
United States v. Sanchez-Pena, 336 F.3d 431, 445 (5th Cir. 2003);
Mitchell v. Maggio, 679 F.2d 77, 79 (5th Cir. 1982).
Consequently, the district court did not abuse its discretion in
denying his request. See 18 U.S.C. § 3006A(c).
AFFIRMED.
**
United States v. Garcia, 517 F.2d 272 (5th Cir. 1975),
abrogated on other grounds by, Flanagan v. United States, 465
U.S. 259, 263 (1984).