(caption unavailable)

* Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 91-3994
Summary Calendar
__________________
UNITED STATES OF AMERICA,
Petitioner-Appellee,
versus
DELORES SCOTT,
Respondent-Appellant.
______________________________________________
Appeal from the United States District Court for the
Eastern District of Louisiana
(CR 89-00310 (004)
______________________________________________
(January 26, 1993)
Before GARWOOD, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.*
GARWOOD, Circuit Judge:
Defendant-appellant Delores Scott (Scott) is presently serving
a six-year sentence for federal drug and firearms convictions.
Acting pro se, she filed a motion before the district court for a
modification of her sentence; treating this motion as a petition
for habeas corpus under 28 U.S.C. § 2255, the trial court denied

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2
her motion. Scott appeals this denial of relief and requests
appointment of counsel. Finding the issues raised by Scott in this
appeal to be without merit, we decline to appoint counsel and
affirm the decision of the district court.
Facts and Prior Proceedings
A complete discussion of the facts of this case is set forth
in our prior opinion on direct appeal, in which we affirmed the
convictions of Scott and her co-conspirators. United States v.
Beverly, 921 F.2d 559, 560-61, 563 (5th Cir.), cert. denied, 111 S.
Ct. 2869 (1991). We give here only the facts relevant to our
discussion of the issues presented in this section 2255 appeal.
Between April 21, 1989, and June 23, 1989, agents from the
Bureau of Alcohol, Tobacco, and Firearms (ATF) monitored or
participated in a number of undercover drug purchases from an
apartment in New Orleans shared by Scott and her co-conspirators,
Carl Sykes (Sykes), Emanuel Brown (Brown), and Boisey Beverly
(Beverly). Firearms and references thereto figured into several of
these purchases. In April, Charles Kilbourne (Kilbourne), a
confidential informant for the government, purchased cocaine from
Sykes. Following the sale, Sykes escorted Kilbourne from the
apartment to Kilbourne's car; Sykes was armed with a semi-automatic
handgun at the time. On June 6, Kilbourne and ATF agent David
Sullivan (Sullivan) purchased cocaine from Sykes and Brown.
Noticing what appeared to be the outline of a handgun under Sykes'
shirt, Sullivan asked him if he were afraid of being "ripped off."
Sykes replied that if someone were to try, "it would be like
Vietnam around here." Later in June, Sullivan bought cocaine from

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1 The remaining two counts involved distribution charges
against Scott's co-conspirators.
3
Scott; after this sale, while escorting Sullivan to his car,
Beverly asked Sullivan if he were interested in purchasing
firearms.
Federal agents executed a search warrant of Scott's apartment
on June 23, 1989. During the search, the agents found two loaded
handguns and ammunition in a box under a bed. The guns were a
Smith and Wesson .357 Magnum revolver and a Rossi 38 caliber
revolver. The agents also found a small amount of cocaine and
$2,200.00 in cash, some of which was marked and came from the June
6 sale from Sykes and Brown.
In July 1989, Scott was charged in four counts of a six-count
indictment.1 The first three counts alleged violations of 21
U.S.C. §§ 846 and 841(a): (1) conspiracy to distribute cocaine;
(2) distribution of cocaine; and (3) possession of cocaine with
intent to distribute. In the last count, Scott was charged with
using and carrying firearms during and in relation to the drug
trafficking offense of conspiracy to distribute cocaine, in
violation of 18 U.S.C. § 924(c)(1). Scott's co-conspirators were
also charged in the conspiracy and firearms counts.
Scott and her co-conspirators were tried and found guilty on
all counts in a jury trial. None of the defendants contested their
drug convictions, but together they filed a motion for acquittal on
the firearms count, contending that there was insufficient evidence
that the firearms found during execution of the search warrant were
used or carried in relation to the conspiracy to sell cocaine. The

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2 Scott received three concurrent twelve-month sentences on
the drug counts, a five-year sentence on the firearm count to run
consecutively to the other counts, and a three-year term of
supervised release to begin after she is released from prison.
4
district court denied this motion and sentenced the defendants.2
Scott and the other defendants appealed their firearms
convictions on the ground of insufficient evidence. We affirmed,
holding that the evidence supported the firearms convictions.
Beverly, 921 F.2d at 563. Scott now claims that her sentence
should be modified pursuant to 28 U.S.C. § 2255.
Discussion
Scott raises two issues in her petition for relief: (1)
whether the evidence was insufficient to support her conviction on
the firearms count; and (2) whether she was prejudiced by her trial
counsel's failure to move for a severance on the firearms count.
We have previously specifically considered and decided the
insufficiency of the evidence claim adversely to Scott on direct
appeal and need not consider it further. Scott may not raise by a
section 2255 motion what she has already challenged on direct
appeal. United States v. Kalish, 780 F.2d 506, 507-508 (5th Cir.)
("It is settled in this Circuit that issues raised and disposed of
in a previous appeal from an original judgment of conviction are
not considered in § 2255 Motions."), cert. denied, 476 U.S. 1118,
106 S.Ct. 1977 (1986); Ordonez v. United States, 588 F.2d 448, 448-
49 (5th Cir.) (same), cert. denied, 441 U.S. 963, 99 S.Ct. 2409
(1979); Buckelew v. United States, 575 F.2d 515, 517-18 (5th Cir.
1978) ("a matter need not be reconsidered on a section 2255 motion
if it has already been determined on direct appeal"). No reason

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3 At the district court level, Scott claimed that she received
ineffective assistance because her counsel (1) failed to properly
instruct her on the charges against her; and (2) failed to defend
her against allegedly frivolous charges made by the undercover
agent. She did not produce any evidence to support these claims,
however, and the district court properly denied her section 2255
motion. Scott does not pursue these particular grounds before
this Court.
5
appears to depart in this case from the foregoing general rule.
Although Scott raised her claim of ineffective assistance of
counsel before the district court, she did not base this claim on
her trial counsel's failure to move for a severance on the firearm
count.3 We will consider an issue raised for the first time on
appeal only if it is a purely legal issue and if we must consider
it in order to avoid a miscarriage of justice. United States v.
D.K.G. Appaloosas, Inc., 829 F.2d 532, 537-38 (5th Cir. 1987),
cert. denied sub nom. One 1984 Lincoln Mark VII Two-Door v. United
States, 485 U.S. 976, 108 S.Ct. 1270 (1988). Assuming, arguendo,
that Scott's claim in this respect has not been waived by failure
to raise it below, the claim is nevertheless without merit and
Scott is not entitled to relief thereon.
In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 2064 (1984), the Supreme Court set forth a two-part test for
evaluating claims of ineffective assistance of counsel; both prongs
of the test must be met in order to establish the ineffective
assistance claim. First, Scott must show that her counsel's
performance was deficient. "This requires showing that counsel
made errors so serious that counsel was not functioning as the
`counsel' guaranteed the defendant by the Sixth Amendment." Id.
A lawyer's representation is deficient only if it falls below an

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6
objective standard of reasonableness, measured under prevailing
professional norms. Id. at 688, 104 S.Ct. at 2064, 2065.
Second, Scott must show that her defense was prejudiced by the
deficient performance. "This requires showing that counsel's
errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable." Id. at 687, 104 S.Ct. at 2064.
In order to establish prejudice, Scott must show that there is a
reasonable probability that a different result would have occurred
but for the deficient representation. Id. at 694, 104 S.Ct. at
2068.
Scott was represented at trial and on direct appeal by John
Mulvehill, a federal public defender. In assessing Mr. Mulvehill's
failure to move for a severance, we must afford his performance a
high degree of deference. Id. at 689, 104 S.Ct. at 2065. We find
that his actions were not unreasonably deficient.
As a general rule, persons indicted together should be tried
together. United States v. Rocha, 916 F.2d 219, 227-28 (5th Cir.
1990), cert. denied sub nom. Hinojosa v. United States, 111 S.Ct.
2057 (1991). Rule 14, Fed. R. Crim. P., however, allows severance
if it appears that a defendant is prejudiced by the joinder of
other defendants for trial. This prejudice may arise if a co-
defendant refuses to give exculpatory testimony or if a co-
defendant asserts irreconcilable or mutually exclusive defenses.
Rocha, 916 F.2d at 231-32.
No such prejudice has been shown in this case; therefore, Mr.
Mulvehill's failure to move for a severance did not constitute
deficient representation. See United States v. Garza, 563 F.2d

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7
1164, 1166 (5th Cir. 1977) ("When, as in this case, severance is
not required as a matter of law, the failure to seek such relief
can amount to nothing more than a mistaken tactical decision" and
not to ineffective counsel), cert. denied, 434 U.S. 1077, 98 S.Ct.
1268 (1978).
Moreover, severance was not required because the firearms
charge related to the conspiracy charge; Scott was indicted and
convicted on the conspiracy charge with her co-conspirators and has
not contested this conviction either on direct appeal or by the
section 2255 motion before us now. We held on direct appeal that
the evidence was sufficient to support her conviction on the
firearms charge. We stated in our decision:
"The guns were found with ammunition in a bedroom
containing cocaine. Delores Scott, moreover, was found
in the apartment in possession of approximately $2,200 in
cash . . . . A jury thus could reasonably connect the
cash to the drug trafficking, and infer that these
specific guns were used as protection `in relation to'
both the ill-gained cash and drugs found in the room."
Beverly, 921 F.2d at 563.
Because Scott was clearly a member of the conspiracy, the
offense to which the firearms charge related, and because there was
sufficient evidence to support her conviction on the firearms
offense, we cannot say that her trial counsel acted unreasonably in
not moving for a severance. We also note that, because Scott's
participation in the conspiracy with all the other defendants was
shown, there was no evidence in the trial that would not have been
admissible in a separate trial of Scott alone. See, e.g.,
Bourgaily v. United States, 107 S.Ct. 2775 (1987). Having
satisfied ourselves that Scott's representation was not

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unconstitutionally deficient, we need not consider the second part
of the Strickland test; we note, however, that Scott has made no
showing of any likelihood that the result would have been different
had her trial been severed from that of her co-conspirators.
Our holding that Scott's trial counsel did not err in failing
to request a severance is supported by the Supreme Court's opinion
in Pinkerton v. United States, 328 U.S. 640, 647, 66 S.Ct. 1180,
1184 (1946). In Pinkerton, the Court ruled that a member of a
continuing conspiracy may be held responsible for the substantive
offenses committed by other members in furtherance of the
conspiracy, even though that member does not participate in, or
have actual knowledge of, the substantive offense.
We have applied this rule in the context of use or possession
of firearms in furtherance of drug conspiracies. In United States
v. Raborn, 872 F.2d 589, 595-96 (5th Cir. 1989), we affirmed a
defendant's conviction of carrying the firearm found in his co-
conspirator's truck pursuant to and in furtherance of a drug
trafficking crime. Following Pinkerton, we held that a firearm
conviction was proper even if the defendant did not have actual
knowledge that his co-conspirator possessed the pistol, because the
defendant was a member of the conspiracy. See also United States
v. Golter, 880 F.2d 91, 93-94 (8th Cir. 1989) (firearms conviction
proper under Pinkerton doctrine where co-conspirator's possession
of a handgun was in furtherance of a drug conspiracy).
In the case before us, the district court charged the jury
with a Pinkerton instruction. Thus the jury could properly have
convicted Scott of the firearms offense on the basis of her

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involvement with the drug conspiracy.
In her appellate brief, Scott moved this Court for appointment
of counsel. Representation for financially eligible persons
seeking relief under section 2255 may be provided when the
interests of justice so require. 18 U.S.C. § 3006A(a)(2). As
Scott's pro se brief describes the facts and issues adequately
enough to enable us to render an opinion, the interests of justice
do not require that we appoint counsel to pursue the matter
further. See Schwander v. Blackburn, 750 F.2d 494, 502-503 (5th
Cir. 1985).
Conclusion
We deny the motion for appointment of counsel. We affirm the
district court's denial of section 2255 relief.
AFFIRMED.

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