                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 00-3603
                                     ___________

Henrietta Furnish,                        *
                                          *
             Appellant,                   *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Eastern District of Missouri
United States of America,                 *
                                          *
             Appellee.                    *
                                     ___________

                               Submitted: May 18, 2001

                                    Filed: June 6, 2001
                                     ___________

Before McMILLIAN and BOWMAN, Circuit Judges, and MOODY,1 District Judge.
                          ___________

McMILLIAN, Circuit Judge.

       Henrietta Furnish (appellant) appeals from a final order entered in the United
States District Court2 for the Eastern District of Missouri, denying her motion for relief
from federal custody, pursuant to 28 U.S.C. § 2255. Furnish v. United States, No.


      1
        The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas, sitting by designation.
      2
       The Honorable Jean C. Hamilton, Chief United States District Judge for the
Eastern District of Missouri.
4:98CV147 (E.D. Mo. Sept. 25, 2000) (memorandum and order) (hereinafter "slip
op."). For reversal, appellant argues that the district court erred in holding that she
failed as a matter of law to establish ineffective assistance of counsel in her direct
criminal appeal, under the two-prong test set forth in Strickland v. Washington, 466
U.S. 668 (1984) (Strickland) (ineffective assistance of counsel claim requires showing
that (1) counsel was constitutionally deficient in his or her performance and (2) the
deficiency materially and adversely prejudiced the outcome of the case). For the
reasons discussed below, and pursuant to 8th Cir. R. 47B, we affirm the order of the
district court.

       Briefly summarizing the procedural background, appellant was indicted along
with nine other defendants, including her husband, Ronnie Furnish, on one count of
conspiracy to distribute, and to possess with the intent to distribute, more than one
kilogram each of methamphetamine and heroin. Following a seven-day trial, the jury
found appellant guilty. She was sentenced on January 25, 1996, to 300 months
imprisonment, five years supervised release, and a fine of $1,000.00. She appealed on
the basis that the evidence was insufficient as a matter of law to support the jury's
verdict. This court affirmed her conviction. See United States v. Bryson, 110 F.3d
575, 585-86 (8th Cir. 1997). The same attorney represented both appellant and her
husband at trial, at sentencing, and on appeal. Appellant had signed a waiver of the
attorney's conflict of interest.

       Appellant thereafter filed the present action seeking relief from federal custody
pursuant to 28 U.S.C. § 2255. In an amended § 2255 motion, she asserted five claims
of ineffective assistance of appellate counsel and one claim of ineffective assistance of
trial counsel. The district court found each of her claims to be without merit, but
granted a certificate of appealability on three of her five claims for relief. Slip op. at
12. The district court dismissed her § 2255 motion with prejudice, and appellant timely
appealed on the three certified claims.


                                           -2-
       Each of the three claims before this court is predicated on appellant's assertion
that her appellate counsel (in her direct criminal appeal) was influenced by a conflict
of interest resulting from his representation of both appellant and her husband, Ronnie
Furnish. As indicated above, the joint representation occurred throughout the trial,
sentencing, and direct appeal – after appellant had signed a waiver of the attorney's
conflict of interest.3 Appellant concedes that she signed the waiver, but contends that
she did not waive her constitutional right to effective representation. In this § 2255
action, appellant alleges that her attorney was mainly concerned with her husband's
success on appeal and consequently failed to raise appellate arguments on her behalf
that were meritorious, but did not concern her husband.

       In the first of the three § 2255 claims certified for appeal, appellant asserts
ineffective assistance of appellate counsel for failure to challenge the drug quantity
found to be attributable to her at sentencing. Upon review, we agree with the district
court's conclusion that this claim fails as a matter of law under the prejudice prong of
the Strickland test. Even if the issue had been raised in appellant's direct criminal
appeal, it is not reasonably probable that this court would have held that the district
court's drug quantity finding was clearly erroneous, in light of the evidence that was
before the district court and the preponderance of evidence standard that applied at
sentencing. See slip op. at 7-9.

       In the second certified § 2255 claim, appellant asserts ineffective assistance of
appellate counsel for failure to challenge the sentencing enhancement she received for
being a leader in the conspiracy. Appellant argues that her appellate attorney knew she
had a strong argument against the leadership enhancement because the attorney argued


      3
        The government does not argue that, in light of the signed waiver, appellant is
barred as a matter of law from asserting an ineffective assistance of counsel claim
based upon her attorney's conflict of interest. Because the issue has not been presented
to us, we do not address it.

                                          -3-
this point at sentencing and because the attorney successfully raised this issue in her
husband's direct appeal. See United States v. Bryson, 110 F.3d at 586. We again agree
with the district court that appellant's claim fails under the prejudice prong of the
Strickland test. As the district court reasoned, "[t]he testimony both at trial and during
sentencing revealed that [appellant] was the source of methamphetamine supply for
several other members of the conspiracy" and that appellant "necessarily received a
greater portion of the profits from the conspiracy." Slip op. at 9-10.

       In the third and final § 2255 claim now before this court, appellant asserts
ineffective assistance of appellate counsel for failure to raise the government's use of
an allegedly false statement signed by appellant's co-defendant, Linda Sue Bryson.
Appellant submitted to the district court, along with her § 2255 motion, an affidavit
signed by Bryson declaring that the statement in question was false and that she was
pressured by the government into sign it. Upon review of the § 2255 claim, the district
court reasoned, and we agree, that appellant has not shown deficiency in her appellate
counsel's representation (i.e., the performance prong of the Strickland test) because
Bryson's affidavit did not exist until many months after the direct appeal had become
final. See slip op. at 10-11. Nor is there any basis for believing that, at the time of the
direct appeal, appellant's attorney should have or could have known that such evidence
might be available.

       For the reasons stated, the order of the district court is affirmed. See 8th Cir. R.
47B.

       A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.


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