     Case: 13-31312      Document: 00512858725         Page: 1    Date Filed: 12/05/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-31312
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         December 5, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

HENRY RAY STEWART,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:12-CR-15-1


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Henry Ray Stewart pleaded guilty to health care fraud and was
sentenced to 46 months of imprisonment. He argues that his waiver of conflict-
free counsel was invalid. Stewart asserts that the district court did not comply
with 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 & n.2 (1984), and
should have conducted a more thorough inquiry regarding his waiver of the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 13-31312       Document: 00512858725         Page: 2     Date Filed: 12/05/2014


                                       No. 13-31312

right to conflict-free counsel. He contends that a conflict became apparent at
sentencing and resulted in him being sentenced to a lengthier sentence than
his similarly situated codefendant.
       Stewart does not establish the existence of an actual conflict, and, thus,
has not shown that the district court was required to conduct a Garcia hearing.
He therefore has no basis to challenge the thoroughness of the district court’s
inquiry. See United States v. Hernandez, 690 F.3d 613, 618-19 (5th Cir. 2012).
Even if a Garcia hearing was required, the record supports that the district
court complied with Garcia and that Stewart knowingly and voluntarily
waived his right to conflict-free counsel. See United States v. Garcia-Jasso,
472 F.3d 239, 243 (5th Cir. 2006). Accordingly, his argument is without merit.
       Stewart also contends that counsel rendered ineffective assistance at the
sentencing hearing by not securing documents and favorable witnesses and not
objecting to the district court’s sentencing decision.                The record is not
sufficiently developed to permit review of these claims on direct appeal. 1 See
United States v. Isgar, 739 F.3d 829, 841 (5th Cir.), cert. denied, 2014 WL
2616172 (Oct. 6, 2014) (No. 13-10484).
       Accordingly, the judgment of the district court is AFFIRMED.




       1  Stewart argued these grounds as a basis for an ineffective-assistance-of-counsel
claim in a 28 U.S.C. § 2255 motion seeking to vacate, set aside, or correct his sentence. In
that same motion, Stewart also argued that his counsel’s failure to perfect a timely appeal
constituted ineffective assistance of counsel. Finding that Stewart’s counsel failed to file a
timely notice of appeal, the district court vacated and reinstated the judgment of conviction
to afford Stewart the chance to appeal but dismissed Stewart’s other claims without
prejudice. Because the district court dismissed his other claims without prejudice, Stewart
is “entitled to an adjudication of all the claims presented in his earlier” habeas application
without seeking authorization to file a second or successive application. See Stewart v.
Martinez-Villareal, 523 U.S. 637, 643-44 (1998).


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