               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 01-50411
                         Summary Calendar



                      SHANE EDWARD DROUSCHE,

                                            Petitioner-Appellant,

                               versus

           JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT
          OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

                                            Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. A-99-CV-593-SS
                       --------------------
                          March 25, 2002

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

     Shane Edward Drousche, Texas prisoner # 750819, appeals from

the district court's denial of his 28 U.S.C. § 2254 petition for

writ of habeas corpus in which he challenges his conviction for

murder.    Drousche   argues   that   his   trial   counsel,   Lawrence

Schaubhut, was burdened by unconstitutional conflicts of interest

which adversely affected his representation because he did not call

as witnesses Beth Pearson, Scott Pearson, and Michelle Pearson.

Drousche asserts that the Pearsons were former or current clients


     *
        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that this opinion should not be published and is not precedent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. 01-50411
                                  -2-

of Schaubhut at the time of trial, and they could have impeached

the state's eye witness, Michael Dear-Kelly, by testifying that

Dear-Kelly told them he was too drunk on the night of Drousche's

fight with the victim, C.W. Dean, to know what happened or to

remember the events of the fight the next day.    The district court

granted Drousche a certificate of appealability on this issue, and

we now affirm.

     The respondent contends that Drousche failed to exhaust his

factual allegations in state court because the state habeas court

refused to consider two supporting exhibits upon which Drousche

relies.     Assuming, without deciding, that Drousche failed to

properly present the exhibits to the state court or exhaust his

claims based on the exhibits, we may affirm the denial of habeas

relief on the merits.     See 28 U.S.C. § 2254(b)(2).

     Drousche argues that Schaubhut referred to all three of the

Pearsons as his clients and that because of an actual conflict we

must presume prejudice.    Prejudice is presumed if it is shown that

an attorney's actual conflict of interest adversely affected his

performance.     See Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).

The presumed prejudice standard applies to cases involving multiple

representation.    Perillo v. Johnson, 205 F.3d 775, 797 (5th Cir.

2000).    We conclude based on the record that only Beth Pearson was

Schaubhut's former client, having been represented by him in a

divorce action 25 years prior to trial. We conclude that Drousche

has failed to show an actual conflict involving Beth Pearson or

that such a conflict adversely affected Schaubhut's representation

of Drousche. Id. at 781-82. An affidavit from Dear-Kelly executed
                            No. 01-50411
                                 -3-

in 1999 reveals that on the day after Drousche's fight with Dean,

Dear-Kelly spoke with Scott Pearson, not Beth Pearson, about his

intoxication.

     With respect to Scott and Michelle Pearson, Drousche must show

both that Schaubhut rendered deficient performance and that the

deficient   performance   prejudiced   his    case.    Strickland   v.

Washington, 466 U.S. 668, 697 (1984).        We conclude that Drousche

has failed to show that Schaubhut rendered deficient performance or

that there is a reasonable probability that but for Schaubhut's

failure to call Scott or Michelle Pearson to impeach Dear-Kelly,

the result of his trial would have been different.        Id. at 694.

The record shows that Dear-Kelly admitted in his testimony that he

was drunk and that Schaubhut cross-examined Dear-Kelly about his

intoxication.   Dear-Kelly's 1999 affidavit does not state that he

told Scott Pearson that he was so drunk that he could not see the

fight or remember its details.   The affidavit also does not state

that Dear-Kelly's trial testimony was incorrect or inaccurate.

Finally, in addition to testimony from Dear-Kelly, the jury had a

written confession from Drousche describing the brutal nature of

the assault and medical evidence showing that the cause of death

was a combination of blows as a result of being hit and kicked in

the face and head.

     The district court's judgment is AFFIRMED.
