                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           DEC 20 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 01-2053
                                               (D.C. No. CIV-00-995-LH/WWD)
    JOSE ANTONIO CARRASCO,                                (D. N.M.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before HENRY and HOLLOWAY , Circuit Judges, and               BRORBY , Senior
Circuit Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Defendant Jose Antonio Carrasco appeals from an order of the district court

denying his petition seeking relief under 28         U.S.C. § 2255. We affirm.

       In 1988, Mr. Carrasco was indicted with six other co- defendants. He was

charged with conspiracy to possess and possession of more than 100 grams of

methamphetamine and more than 500 grams of cocaine with intent to distribute in

violation of 21 U.S.C. §§ 841(a) and 846. All defendants entered guilty pleas.

Mr. Carrasco was sentenced to concurrent terms of 262 and 240 months. He did

not appeal.

       Mr. Carrasco, proceeding pro se, then filed this timely §      2255 motion. He

argued that (1) he had received ineffective assistance of counsel, (2) his guilty

plea was improper under     Apprendi v. New Jersey, 530 U.S. 466 (2000), and

(3) 21 U.S.C. § 841 is unconstitutional . We granted a certificate of appealability

(COA) on the issue of whether Mr. Carrasco received ineffective assistance of

counsel because counsel simultaneously represented him and one co-defendant,

Javier Lopez-Melgar.    1



       In reviewing the district court’s ruling on a §      2255 motion, we may grant

relief only if we determine that “the judgment was rendered without jurisdiction,

or that the sentence imposed was not authorized by law or otherwise open to



1
      Mr. Carrasco raises several other ways in which his counsel was
ineffective. We address only the issue on which a COA was granted.

                                               -2-
collateral attack, or that there has been such a denial or infringement of the

constitutional rights of the prisoner as to render the judgment vulnerable to

collateral attack.”   28 U.S.C. § 2255. “In reviewing an ineffective assistance of

counsel claim based upon a conflict of interest, we review the district court’s

determination of whether an actual conflict existed de novo, and we review the

district court’s factual findings under a clearly erroneous standard.” United

States v. Gallegos, 108 F.3d 1272, 1279 (10th Cir. 19 97).

       To prevail on an ineffective assistance of counsel claim due to an alleged

conflict of interest, even if the trial court was aware or reasonably should have

known of the potential conflict, the defendant must establish that an actual

conflict of interest adversely affected his counsel’s performance “as opposed to a

mere theoretical division of loyalties.” Mickens v. Taylor, 122 S. Ct. 1237, 1243

(2002); see also Cuyler v. Sullivan, 446 U.S. 335, 350 (1980) (mere possibility of

conflict of interest “is insufficient to impugn a criminal conviction”).

             An actual conflict of interest results if counsel was forced to
       make choices advancing other interests to the detriment of his client.
       Without a showing of inconsistent interests, any alleged conflict
       remains hypothetical, and does not constitute ineffective assistance.
       Indeed, to demonstrate an actual conflict of interest, the petitioner
       must be able to point to specific instances in the record which
       suggest an impairment or compromise of his interests for the benefit
       of another party.

United States v. Alvarez, 137 F.3d 1249, 1252 (10th Cir. 19 98) (citations and

quotations omitted); see also Cuyler , 446 U.S. at 356 n.3 (Marshall, J., concurring

                                          -3-
in part and dissenting in part) (petitioner can show actual conflict of interest by

establishing that his and his co-defendants’ interests “diverge[d] with respect to a

material factual or legal issue or to a course of action”);   United States v Bowie ,

892 F.2d 1494, 1500 (10th Cir. 1990) (“[D]efense counsel’s performance was

adversely affected by an actual conflict of interest if a specific and seemingly

valid or genuine alternative strategy or tactic was available to defense counsel,

but it was inherently in conflict with his duties to others . . . .”).

       The same counsel represented both Mr. Carrasco and another co-defendant,

Guadalupe Natividad-Saenz. The court held a hearing pursuant to

Fed. R. Crim. P. 44, and Mr. Carrasco waived the conflict with

Mr. Natividad-Saenz.    2
                            Mr. Carrasco contends, however, he was not aware that at

one point, his counsel also represented Javier Lopez-Melgar. Mr. Carrasco

maintains he would not have waived the conflict as to Mr. Lopez-Melgar.

       Mr. Carrasco states that, due to the conflict, counsel told him not to tell the

government about the other defendants’ roles in the conspiracy , refused to

accompany him to the debriefing session with the government, misadvised him as

to the possible sentence he faced, and did not obtain a plea agreement for him.




2
      Mr. Carrasco maintains he was unaware that he waived the conflict. The
record belies this contention.

                                              -4-
       Mr. Carrasco’s allegations are purely speculative.      No defendant presented

evidence implicating another defendant. Mr. Carrasco has failed to show that

counsel made choices advancing Mr. Lopez-Melgar’s interests to Mr. Carrasco’s

detriment. Mr. Carrasco does not contest the fact that he received the lowest

possible sentence permissible under the guidelines based on the facts he admitted

in entering his plea. Consequently, lacking a       showing of specific instances where

counsel’s performance was adversely affected by his representation of both

Mr. Carrasco and Mr. Lopez-Melgar, we hold the district court did not err in

rejecting Mr. Carrasco’s claim of ineffective assistance of counsel based on his

attorney’s representation of Mr. Lopez-Melgar.

       Mr. Carrasco urges us to also consider the issues on which a certificate of

appealability was not granted. Even if we were to consider them, they are without

merit. See United States v. Mora , 293 F.3d 1213, 1219 (10th Cir.) (      Apprendi “is

not retroactively applicable to initial habeas petitions”),   cert. denied , 123 S. Ct.

388 (2002); United States v. Cernobyl , 255 F.3d 1215, 1218-19 (10th Cir. 2001)

(§ 841(b)(1) not unconstitutional due to      Apprendi ).




                                              -5-
     The judgment of the United States District Court for the District of New

Mexico is AFFIRMED.



                                                 Entered for the Court



                                                 William J. Holloway, Jr.
                                                 Circuit Judge




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