     Case: 09-50342     Document: 00511219791          Page: 1    Date Filed: 08/31/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           August 31, 2010
                                     No. 09-50342
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

STEVEN ROBERT BARTH,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                               USDC No. 2:08-CV-19
                             USDC No. 2:03-CR-124-14


Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
        Steven Robert Barth appeals the denial of his 28 U.S.C. § 2255 motion
which sought to challenge his jury trial conviction for conspiracy to possess with
intent to distribute marijuana, conspiracy to import marijuana, and possession
of firearms in furtherance of a drug trafficking crime, for which he was
sentenced to 241 months in prison. He argues that trial counsel rendered
ineffective assistance due to an actual conflict of interest stemming from 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50342   Document: 00511219791 Page: 2        Date Filed: 08/31/2010
                                No. 09-50342

payment of legal fees by Jason Schillings, a former client and a government
witness.
      We have carefully reviewed the record and the appellate arguments and
conclude that the district court did not err in finding that Barth failed to
establish an actual conflict of interest which adversely affected counsel’s
performance. See United States v. Burns, 526 F.3d 852, 856-57 (5th Cir. 2008).
The conflict here remained purely hypothetical.      See id.   Barth’s attorney
represented Schillings in an unrelated civil matter; the representation had been
unequivocally terminated prior to trial; and the facts and issues of the previous
representation had no relation to the criminal charges against Barth. See id.
Moreover, the payment of legal fees by one client for another does not establish,
by itself, an actual conflict of interest. See United States v. Corona, 108 F.3d
565, 575 (5th Cir. 1997).
      AFFIRMED.




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