*

The Honorable James B. Loken became Chief Judge of the United States

Court of Appeals for the Eighth Circuit on April 1, 2003.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-3408

___________

Charles McKay McNeil, *

*

Appellant, * Appeal from the United States 

* District Court for the District

v. * of Minnesota.

*

United States of America, * [UNPUBLISHED]

*

Appellee. *

___________

Submitted: March 11, 2003

Filed: April 30, 2003

___________

Before McMILLIAN, FAGG, and LOKEN,*

 Circuit Judges.

___________

PER CURIAM.

The government charged Charles McNeil with distribution of and conspiracy

to distribute methamphetamine. A jury convicted McNeil, and he was sentenced to

ten years in prison. We affirmed his conviction. United States v. McNeil, 184 F.3d

770, 773 (8th Cir. 1999). McNeil then filed a 28 U.S.C. § 2255 motion asserting his

trial counsel rendered ineffective assistance in failing to communicate a pretrial plea
**The Honorable John Tunheim, United States District Judge for the District of

Minnesota.

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offer to him and in failing to present him for a “safety valve” interview following his

conviction. 

The district court** held an evidentiary hearing on McNeil’s plea offer claim.

The plea offer provided that in exchange for his cooperation, McNeil could plead

guilty to a lesser telephone count in violation of 21 U.S.C. § 843(b), which carries a

statutory maximum sentence of forty-eight months in prison. McNeil’s trial attorney

testified he remembered receiving the plea offer and he normally communicates all

offers to clients, but he could not specifically recall communicating the offer to

McNeil because almost five years had passed since then. McNeil testified his

attorney never communicated the offer, he would have accepted it, and he could have

fulfilled the offer’s cooperation requirement. On cross-examination, however,

McNeil continued to assert his innocence of all charges and state he never had any

drug-related dealings with the person against whom the government sought McNeil’s

cooperation. The district court held it was unnecessary to decide whether the offer

was communicated because, even if it wasn’t, McNeil failed to show any prejudice.

The district court found McNeil would not have accepted the offer or satisfied the

cooperation requirement. The district court also found defense counsel’s decision not

to present McNeil for a safety valve interview was objectively reasonable. 

On appeal, McNeil first asserts trial counsel’s failure to inform him of the plea

offer constitutes ineffective assistance of counsel. To prevail on an ineffective

assistance claim, McNeil must show his attorney’s performance was not objectively

reasonable and the deficient performance prejudiced his defense. See Strickland v.

Washington, 466 U.S. 668, 687-88 (1984). To establish prejudice, McNeil must

show he would have accepted the plea if it had been communicated to him and could

have and would have satisfied the offer’s requirement that he cooperate and provide
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substantial assistance. Engelen v. United States, 68 F.3d 238, 241 (8th Cir. 1995).

Here, the record contains no evidence that McNeil would have acknowledged his

guilt before trial. See id. McNeil has steadfastly maintained his innocence, including

during his testimony at trial and at the posttrial evidentiary hearing on his § 2255

motion. McNeil has also failed to establish prejudice because he has not shown a

reasonable probability that he would have performed the offer’s condition by

cooperating with the government. United States v. Ayd, 25 F.3d 624, 626 (8th Cir.

1994). 

McNeil last contends the district court committed error in denying his safety

valve claim without a hearing. This issue is not properly before us because it is

beyond the scope of the certificate of appealability. United States v. Robinson, 301

F.3d 923, 927 (8th Cir. 2002). 

We thus affirm the district court’s denial of McNeil’s § 2255 motion.

A true copy.

Attest:

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