Long v. Warden Dixon Corr ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-30090
Summary Calendar
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BENNY FRANK LONG,
Petitioner-Appellant,
versus
WARDEN, DIXON CORRECTIONAL INSTITUTION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Louisiana
(98-CV-627)
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October 29, 1999
Before HIGGINBOTHAM, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Benny Frank Long, Louisiana prisoner #133075, convicted for
one count of aggravated rape of a minor child and five counts of
attempted rape of another minor child, appeals the denial of his 28
U.S.C. § 2254 habeas petition. The district court granted a
certificate of appealability (COA) for whether Long received
ineffective assistance of his appointed counsel based on a conflict
of interest. Long’s motion for the appointment of counsel on
appeal is DENIED.
*
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this opinion should not be published and is not precedent except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.
Long bases his ineffective assistance of counsel claim on his
attorney being elected district attorney of the parish where Long’s
trial was held. Long maintains that the election affected his
attorney’s relationships with Long and with the jury; and that his
attorney’s “tough on sex offender” campaign affected Long’s
defense.
Long’s conflict-of-interest claim does not involve multiple
representation of defendants; accordingly, his claims are reviewed
under Strickland v. Washington, 466 U.S. 668, 687-88 (1984). He
must prove both that his attorney’s performance was deficient; and
that his defense was prejudiced by the deficient performance. See
Beets v. Scott, 65 F.3d 1258, 1265-72 (5th Cir. 1995) (en banc),
cert. denied, 517 U.S. 1157 (1996). Long does not contend that his
attorney’s performance was deficient; and, his claims that his
defense was prejudiced are conclusional. See Smallwood v. Johnson,
73 F.3d 1343, 1351 (5th Cir.), cert. denied, 519 U.S. 883 (1996).
Even if we were to assume, arguendo, that Long’s attorney’s
election to the office of district attorney before Long’s trial and
the attorney’s taking of the oath before Long’s sentencing resulted
in a conflict of interest, Long fails to show that such a conflict
adversely affected his attorney’s performance. See Perillo v.
Johnson, 79 F.3d 441, 449 (5th Cir. 1996). Again, Long’s
conclusional allegations that such a conflict adversely affected
his defense or his relationship with his attorney are insufficient
to entitle him to habeas relief. See Smallwood, 73 F.3d at 1351.
Long also asserts that the trial court should have conducted
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a hearing to determine his competency to stand trial. Because Long
did not seek, or obtain, a COA for this issue, we lack jurisdiction
to consider it. See Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir.
1997) (court lacks jurisdiction to review claim for which COA was
not sought or granted).
AFFIRMED
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