Unpublished Dispositiongeorge E. Spagnuolo, Petitioner-appellant, v. United States of America, Respondent-appellee, 875 F.2d 867 (6th Cir. 1989)

ORDER

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

George E. Spagnuolo, through counsel, appeals from the denial of his motion to vacate sentence filed under 28 U.S.C. § 2255. Mr. Spagnuolo was convicted following a jury trial of conspiracy to distribute cocaine, and was sentenced to five years imprisonment. His conviction was upheld on appeal by this court, and a motion for new trial was denied by the district court after a hearing. This motion to vacate raised the same issue as that presented in the motion for a new trial, namely that petitioner was denied the effective assistance of counsel due to a conflict of interest, based on the allegation that petitioner's defense counsel was pursuing a personal relationship with petitioner's wife during his trial. The district court adopted its previous findings and conclusions in denying this motion.

Upon consideration, we find no error in the denial of this motion. Petitioner did not establish that his counsel's performance was deficient or that he was prejudiced thereby. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Prejudice cannot be presumed in this case, as petitioner did not establish any active representation of a conflicting interest. See Cuyler v. Sullivan, 446 U.S. 335, 349-50 (1980).

Accordingly, the district court's judgment is hereby affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.