                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                                May 19, 2006
                        FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk
                        ____________________

                            No. 04-50329
                        ____________________


     UNITED STATES OF AMERICA

                                     Plaintiff-Appellee

          v.

     ARANDAL DERRICK GOODLEY

                                     Defendant-Appellant


_________________________________________________________________

           Appeal from the United States District Court
                 for the Western District of Texas
                             (01-CV-10)
_________________________________________________________________

Before KING, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:*

     Defendant-appellant Arandal Derrick Goodley appeals from the

denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or

correct his sentence.   For the reasons stated below, we AFFIRM.

                           I.   BACKGROUND

     Defendant-appellant Arandal Derrick Goodley (“Goodley”) was

arrested in April 1997 after selling cocaine base (“crack


     *
        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that this opinion should not be published and is not precedent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.
cocaine” or “crack”) to an undercover police officer.   Shortly

thereafter, Goodley retained Tony Chavez (“Chavez”) as counsel

and paid Chavez $10,000 for his services.   In September 1997

Goodley was indicted for various drug offenses committed over a

four-year period.1   On June 6, 1998, Goodley was convicted on

charges of money laundering and conspiracy and possession with

intent to distribute crack cocaine.

     Five days after Goodley’s conviction, on June 11, 1998,

Chavez was also indicted in the Western District of Texas for his

role in a separate and unrelated drug conspiracy.2   After

appointing new counsel for sentencing, the trial court sentenced

Goodley to concurrent sentences of life imprisonment on the drug

conspiracy charges and twenty years imprisonment on both the

possession with intent to distribute and the money laundering

charges.   This sentence was affirmed by this court in an


     1
        Goodley was charged with conspiracy and possession with
intent to distribute crack in violation of 21 U.S.C.
§§ 841(a)(1), 846, and with money laundering in violation of 18
U.S.C. § 1956.
     2
        Chavez was indicted for two counts of intimidating or
using force against a witness in violation of 18 U.S.C. § 1512,
two counts of conspiracy to defraud the United States in
violation of 18 U.S.C. § 371, two counts of conspiracy to
distribute marijuana in violation of 21 U.S.C. § 846, and one
count of racketeering in violation of 18 U.S.C. § 1952.
     On November 2, 1998, Chavez pleaded guilty to the
intimidation charges and was sentenced to thirty months in
prison, three years of supervised release, and a fine of $5,000.
The illegal activities for which Chavez was convicted were
unrelated to the illegal activities for which Goodley was
convicted.

                                 2
unpublished opinion.   United States v. Goodley, No. 98-50923,

slip op. (5th Cir. Sept. 23, 1999), cert. denied, 528 U.S. 1144

(2000).

     On January 22, 2001, Goodley filed a motion to vacate or

amend his sentence pursuant to 22 U.S.C. § 2255, arguing, inter

alia, that Chavez’s personal legal problems created a conflict

between Chavez’s self-interest and Goodley’s interest as his

client.   Goodley argued that this conflict rendered Chavez

constitutionally ineffective in Goodley’s own case, thereby

depriving Goodley of his Sixth Amendment right to counsel.3    On

May 22, 2003, Goodley and Chavez both testified about Chavez’s

performance at Goodley’s trial during an evidentiary hearing.

After considering this testimony, the district court denied

Goodley’s § 2255 claims on March 31, 2004, applying the rule set

forth in Strickland v. Washington, 466 U.S. 668 (1984), and

concluding that Chavez’s performance at Goodley’s trial was not

constitutionally deficient.

     Goodley then filed an application for a certificate of

appealability (“COA”), raising eight grounds for relief from the

district court’s decision to deny his § 2255 motion.   On June 28,



     3
        Goodley now argues, and the government concedes, that
both the district court judge and the attorneys prosecuting
Goodley’s case were aware of the separate and ongoing
investigation into Chavez’s otherwise unrelated illegal
activities. Apparently, Goodley was the only principal in the
courtroom who was unaware of that investigation.

                                 3
2004, the district court denied Goodley’s application for a COA

with respect to his first four grounds of relief, but granted the

COA with respect to Goodley’s last four grounds of relief, all of

which revolve around the alleged violation of Goodley’s Sixth

Amendment rights caused by Chavez’s deficient representation.4


                         II.   DISCUSSION

     In this appeal, Goodley claims that the alleged conflict

between Chavez’s interests and his own should be analyzed under

     4
        More specifically, the district granted Goodley’s
application for a COA with respect to the following claims:

     5) whether trial counsel labored under an actual
        conflict of interest by choosing his own interests
        over those of his client; violating Movant’s
        constitutional right to effective and conflict free
        counsel;

     6) whether the untimely-plea-acceptance argument is
        waived;

     7) whether trial counsel was ineffective for failing
        to timely communicate his client’s acceptance of a
        plea offer; and

     8) whether counsel’s other failures at trial,
        including his lacking preparation, failure to move
        for a judgment of acquittal, and his distraction
        due to his own ongoing criminal investigation
        rendered him constitutionally ineffective.

R. at 335. On December 28, 2004, this court also denied
Goodley’s application for a COA on the first four grounds of
relief requested in his application. Before an appeal from the
dismissal or denial of a § 2254 or § 2255 habeas application can
be taken, a would-be appellant must first obtain a COA which can
issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)
(2000). Therefore, only the grounds of relief quoted above are
raised in this appeal.

                                 4
the standard set forth in Cuyler v. Sullivan, 446 U.S. 335

(1980).   In Sullivan, the Supreme Court held that when a lawyer

simultaneously represents multiple defendants, a defendant may be

able to establish a limited presumption of prejudice if he can

show that “an actual conflict of interest adversely affected his

lawyer’s performance.”    Sullivan, 446 U.S. at 348.   Goodley now

argues that this court should apply this limited presumption from

Sullivan because Chavez’s conflicted representation of Goodley

raises the same concerns present in the multiple representation

discussed in Sullivan.

     Goodley’s arguments are misplaced; the district court’s

decision to apply the Strickland standard was correct.     This

court has determined that “[n]ot all conflicts of interest . . .

[are] suited to [Cuyler v. Sullivan’s] stringent rule,” and that

“Strickland more appropriately gauges an attorney’s conflict of

interest that springs not from multiple client representation but

from a conflict between the attorney’s personal interest and that

of his client.”    Beets v. Scott, 65 F.3d 1258, 1269, 1260 (5th

Cir. 1993) (en banc); see also United States v. Corona, 108 F.3d

565, 575 (5th Cir. 1997) (refusing to apply Sullivan to an

alleged attorney-client conflict that did not arise from multiple

representation).   Because the Strickland standard applies when,

as here, the quality of representation is alleged to have been

affected by the attorney’s self-interest, the district court

correctly determined that Goodley’s claims should be evaluated

                                  5
under Strickland’s standard, not Sullivan’s.   Recent instruction

from the Supreme Court and the recent decisions of this court

have reaffirmed the strict limitation of Sullivan to cases

involving multiple representation and the application of

Strickland to most other alleged conflicts.    See Mickens v.

Taylor, 535 U.S. 162, 174-75 (2002) (quoting Beets, 65 F.3d at

1266, and criticizing courts of appeals that “have applied

Sullivan ‘unblinkingly’ to ‘all kinds of alleged attorney ethical

conflicts,’” even when the conflict arises because

“representation of the defendant somehow implicates counsel’s

personal or financial interests”); United States v. Newell, 315

F.3d 510, 516 (5th Cir. 2002) (stating that Sullivan’s standard

is “confined to claims . . . that challenge an attorney’s divided

loyalties due to multiple representation,” while “Strickland’s

two-pronged analysis . . . governs all other attorney-client

conflicts”).

     Strickland establishes a two-part test for analyzing

conflicts between a convicted client and his attorney’s alleged

self-interest:

     First, the defendant must show that counsel’s performance
     was deficient. This requires showing that counsel made
     errors so serious that counsel was not functioning as the
     ‘counsel’ guaranteed the defendant by the Sixth
     Amendment.   Second, the defendant must show that the
     deficient performance prejudiced the defense.        This
     requires showing that the counsel’s errors were so
     serious as to deprive the defendant of a fair trial, a
     trial whose result is reliable. Unless a defendant makes
     both showings, it cannot be said that the conviction or


                                6
     death sentence resulted from a breakdown in the adversary
     process that renders the result unreliable.

Strickland, 466 U.S. at 687.   These two steps are often referred

to as the “performance component” and the “prejudice component”

of the Strickland test.   Id. at 699.    The district court found

that Goodley’s claims failed to meet the “performance component”

because Goodley failed to provide any evidence that Chavez’s

performance was actually deficient.     We agree.

     Contrary to Goodley’s assertions, the district court

correctly found that Chavez’s failure to interview certain

witnesses fell short of Strickland’s standard for deficient

performance.   The district court recognized that under

Strickland, a petitioner such as Goodley “who alleges a failure

to investigate on the part of his counsel must allege with

specificity what the investigation would have revealed and how it

would have altered the outcome of the trial.”       United States v.

Green, 882 F.2d 999, 1003 (5th Cir. 1989) (citing, inter alia,

Alexander v. McCotter, 775 F.2d 595 (5th Cir. 1985)).      Because

Goodley did not provide sufficient detail about what the foregone

investigations might have revealed or how they might have altered

the outcome of his trial, the district court correctly concluded

that he failed to show that these foregone investigations met the

performance component of the Strickland test.

     Second, the district court also correctly rejected Goodley’s

claim that Chavez’s failure to make a motion for a judgment of


                                 7
acquittal pursuant to FED. R. CRIM. P. 29 was deficient under

Strickland’s standard.     After reviewing the record from Goodley’s

trial, the district court concluded that such a motion would have

been futile, given the weight of the evidence presented by the

prosecution.   The district court correctly analyzed the facts and

our precedent; we have repeatedly stated that the performance

component of Strickland does not require counsel “to make futile

motions or objections.”5    Koch v. Puckett, 907 F.2d 524, 527 (5th

Cir. 1990); see also United States v. Gibson, 55 F.3d 173, 179

(5th Cir. 1995) (stating that trial counsel’s failure to file a

motion to suppress evidence did not constitute deficient

performance under Strickland because “[c]ounsel is not required

by the Sixth Amendment to file meritless motions”).

     Third, the district court correctly concluded that Goodley’s

claims about Chavez’s general state of impairment failed to meet

the performance component of the Strickland test.     The district

court found

     that   the   record    demonstrates   that    [Chavez’s]
     representation at trial, though imperfect, was effective

     5
        Of course, the boundaries of the performance component
of the Strickland test are not fixed at mere futility in every
case. As we have repeatedly held, “counsel is not obligated to
advance every available nonfrivolous argument . . . .” Smith v.
Collins, 977 F.2d 951, 960 (5th Cir. 1992) (citing, inter alia,
Murray v. Carrier, 477 U.S. 478, 485-88 (1986)). Therefore, a
defendant must point to more than the possibility of success in
order to demonstrate ineffective assistance of counsel under
Strickland. See id. However, when, as here, even the
possibility of success is lacking, further analysis under
Strickland is unnecessary.

                                   8
     and did not rise to the level that violates the Sixth
     Amendment . . . . [In addition, Goodley] has not proven
     that the alleged impairment caused any acts or omissions
     that resulted in an unfair trial nor negated the fact
     that some acts or omissions were due to human error and
     not the impairment.

Chavez admitted that he made mistakes while representing Goodley,

and he conceded that the ongoing investigation into his own

criminal activity was “unsettling” and “disruptive,” but he also

maintained that he gave Goodley his best efforts and “didn’t hold

back any punches because of what was happening” outside of

Goodley’s trial.   While Chavez’s performance, by his own

admission, fell far short of the ideal, more is required to meet

Strickland’s performance component.   See Smith, 977 F.2d at 960

(stating that under Strickland “[t]he defense of a criminal case

is not an undertaking in which everything not prohibited is

required. . . . [nor does it require] the employment of wholly

unlimited time and resources”).   Goodley’s general claim that

Chavez’s distraction due to his own ongoing criminal

investigation rendered him constitutionally ineffective falls

short of this requirement.

     Fourth, the district court correctly rejected Goodley’s

claim that Chavez’s performance was actually deficient under

Strickland based on Chavez’s alleged failure to timely

communicate Goodley’s acceptance of a plea offer.6   The district

     6
        Goodley and Chavez both testified that Assistant United
States Attorney Tom Beery (“Beery”) contacted Chavez before
Goodley’s trial and offered Goodley a plea deal involving a ten-

                                  9
court held that “this particular claim of deficient performance”

had been waived because it was not included in Goodley’s original

motion to vacate, which focused solely “on the efforts of

[Chavez] at trial” without any “mention of the plea

negotiations.”   The district court also addressed the substance

of Goodley’s plea argument and concluded that Goodley had not

demonstrated deficient performance under Strickland because there

was no evidence that the plea would have been accepted by either

Goodley’s prosecutors or the trial court.   This substantive

analysis was correct, but we will not consider it further because

Goodley has not provided sufficient reasons to overturn the

district court’s waiver ruling.

     Ordinarily, this court accepts “a district court’s finding

of waiver unless it is clearly erroneous, as it constitutes a

finding of fact.”   United States v. Gipson, 985 F.2d 212, 216

(5th Cir. 1993) (citing Meeks v. Cabana, 845 F.2d 1319, 1323 (5th

Cir. 1988)).   In this appeal, Goodley argues that the plea offer


year maximum sentence. Goodley and Chavez both testified that
Goodley initially declined the offer, but they agreed that Chavez
was eventually able to convince Goodley to accept it.
     However, Chavez testified that he did not immediately convey
Goodley’s acceptance of this alleged plea deal to Beery or any
other attorney involved in Goodley’s prosecution. Furthermore,
Chavez testified that by the time he communicated Goodley’s
acceptance of the deal to Goodley’s prosecutors, Beery had been
replaced by Assistant United States Attorney Mark Roomberg, who
refused to accept or acknowledge the plea offer allegedly made by
Beery. Chavez testified that he had no good reason for failing
to timely communicate Goodley’s acceptance of Beery’s alleged
plea offer, and he acknowledged that “if you want to talk about
mistakes, that certainly was.”

                                  10
argument was not waived because his original motion roughly

described the factual circumstances related to the alleged plea

deal, albeit without expressly claiming that Chavez’s performance

was somehow deficient.    To support this reading of the original

motion, Goodley also points to excerpts from the government’s

first responses to his original motion, which tend to dispute

Goodley’s description of the factual circumstances related to

this alleged plea deal.   However, these responses also do not

discuss the quality of Chavez’s performance as it related to the

circumstances surrounding the alleged plea deal.      Goodley’s

citations, and our own examination of the record, reveal that

although Goodley discussed the existence of the alleged plea

agreement in his original motion, he failed to claim that

Chavez’s performance in connection with this alleged plea

agreement was somehow deficient.      Therefore, we conclude that

Goodley has failed to show that the district court’s waiver

finding was clearly erroneous.

     In conclusion, the district court correctly found that

Goodley’s arguments fail to meet the performance component of the

Strickland test.   We also briefly note that Goodley’s claims fail

to meet the prejudice component of the Strickland test.      To meet

the prejudice component of Strickland, a defendant must show that

the errors under review “were so serious as to deprive [him] of a

fair trial, a trial whose result is reliable.”      Strickland, 466

U.S. at 687.   As we held in Goodley’s direct appeal, the

                                 11
prosecution presented “overwhelming evidence of guilt” against

Goodley during the course of his trial.    United States v.

Goodley, No. 98-50923, slip op. at 2 (5th Cir. Sept. 23, 1999).

In light of this overwhelming evidence of guilt, Chavez’s alleged

errors cast no doubt on the result of Goodley’s trial.

                       III.   CONCLUSION

     For the reasons stated above, we AFFIRM.




                                12
