                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-1595
                                   ___________

Kenny, sued as Kenny Wade Rucker,       *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
United States of America,               *
                                        *        [UNPUBLISHED]
             Appellee.                  *
                                   ___________

                             Submitted: March 2, 2004

                                  Filed: March 5, 2004
                                   ___________

Before WOLLMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

PER CURIAM.

       After we affirmed Kenny Wade Rucker’s guilty plea and sentence for a drug
trafficking offense, see United States v. Rucker, No. 98-2834, 1999 WL 627576, at
*1 (8th Cir. Aug. 16, 1999) (unpublished per curiam), Mr. Rucker brought this
28 U.S.C. § 2255 proceeding. The district court1 denied relief without an evidentiary
hearing, but granted Mr. Rucker a certificate of appealability on the issue whether



      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
trial counsel was ineffective for failing to object to Mr. Rucker’s sentence being
based on crack cocaine.

        After careful de novo review, see United States v. Duke, 50 F.3d 571, 576 (8th
Cir.), cert. denied, 516 U. S. 885 (1995), we conclude the denial of relief was proper.
See Strickland v. Washington, 466 U.S. 668, 693 (1984) (defendant must show both
that his attorney’s performance fell below objective standard of reasonableness and
that he was prejudiced by deficient performance); cf. Burkhalter v. United States,
203 F.3d 1096, 1098 (8th Cir.) (counsel not ineffective in failing to require
government to prove controlled substance was crack cocaine where defendant
repeatedly admitted in both his plea agreement and plea hearing that he was in
possession of crack cocaine, and that government could prove substance was crack,
particularly where counsel knew of defendant’s history of using and selling crack),
cert. denied, 529 U.S. 1082 (2000).

      Accordingly, we affirm.
                     ______________________________




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