*

 This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

DEC 31 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WILLIAM McILROY,

Defendant-Appellant.

No. 96-2219

(D.C. No. CIV-94-1163-JC)

(D. N.M.)

ORDER AND JUDGMENT*

Before BRORBY, EBEL and KELLY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

William McIlroy appeals from the district court's denial of his motion to
1

 Mr. McIlroy's motion to proceed in forma pauperis is granted.

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vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. We have

jurisdiction under 28 U.S.C. § 1291 and we affirm.1

Mr. McIlroy was convicted by a jury of conspiracy to manufacture more

than 500 grams of amphetamine, and aiding and abetting, in violation of 21

U.S.C.§ 841(a)(1) and (b)(1)(C), 21 U.S.C. § 846, and 18 U.S.C. § 2, and of the

manufacture of more than 500 grams of amphetamine, and aiding and abetting, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and 18 U.S.C. § 2. He was

sentenced to 151 months imprisonment on each count to run concurrently. The

facts of Mr. McIlroy's case are detailed in United States v. Langston, 970 F.2d

692, 695-97 (10th Cir.), cert. denied, 506 U.S. 965 (1992), where this court

affirmed Mr. McIlroy's conviction, along with those of his co-conspirators.

In his original § 2255 motion, Mr. McIlroy contended he received a

disparate sentence in violation of both his due process rights and equal protection

of the law. The magistrate judge determined this claim was procedurally barred

because Mr. McIlroy had failed to raise it on direct appeal and could not show

cause for his procedural default and actual prejudice resulting from the alleged
-3-

errors, nor could Mr. McIlroy show a fundamental miscarriage of justice if the

claim was not addressed. See United States v. Allen, 16 F.3d 377, 378 (10th Cir.

1994).

In a supplemental brief in support of his § 2255 motion, Mr. McIlroy raised

claims of prosecutorial misconduct and ineffective assistance of counsel. The

magistrate judge considered these claims and amended his findings, concluding

the prosecutorial misconduct claim also was procedurally barred under United

States v. Frady, 456 U.S. 152 (1982), and the ineffective assistance claim failed

to meet the standard articulated in Strickland v. Washington, 466 U.S. 668 (1984). 

The magistrate judge recommended Mr. McIlroy's motion be denied. After a de

novo review of Mr. McIlroy's objections, the district court adopted the findings

and recommendation of the magistrate judge, and denied the § 2255 motion. Mr.

McIlroy appeals the district court's conclusions regarding his ineffective

assistance of counsel and prosecutorial misconduct claims.

We review a claim of ineffective assistance of counsel de novo. Hoxsie v.

Kerby, 108 F.3d 1239, 1245 (10th Cir.), cert. denied, 118 S. Ct. 126 (1997). To

prevail, Mr. McIlroy must meet the two-prong test set forth in Strickland. First,

he must show his counsel's performance fell below an objective standard of
-4-

reasonableness. Strickland, 466 U.S. at 687-88. Second, he must show the

deficient performance of counsel resulted in prejudice to his defense. Id. at 687. 

There is a "strong presumption" counsel's performance falls within the range of

"reasonable professional assistance." Id. at 689.

The gravamen of Mr. McIlroy's ineffective assistance claim is that his trial

counsel failed to raise a defense based on Mr. McIlroy's alleged withdrawal from

the conspiracy to manufacture amphetamine. According to the evidence adduced

at trial, on or about July 6, 1989, Mr. McIlroy and several co-conspirators went to

an isolated ranch property to operate an amphetamine laboratory. Mr. McIlroy

agreed to produce amphetamine and helped to oversee the manufacturing process. 

On July 11, 1989, when the conspirators were entering the "finishing process"

stage of manufacturing the amphetamine, according to Mr. McIlroy, he opted to

discontinue his participation, left the ranch, and ceased all communication with

his fellow conspirators. Mr. McIlroy now contends his trial counsel was

ineffective in failing to raise a withdrawal defense in reliance on United States v.

Parnell, 581 F.2d 1374 (10th Cir. 1978), cert. denied, 439 U.S. 1076 (1979).

In Parnell, we stated that "[i]n order to withdraw from a conspiracy an

individual must take affirmative action, either making a clean breast to the
2

 The government contends Mr. McIlroy did not withdraw from the

conspiracy, but fled from fear of discovery.

-5-

authorities or communicating his withdrawal in a manner reasonably calculated to

reach co-conspirators." 581 F.2d at 1384. Assuming arguendo that Mr. McIlroy

did in fact withdraw from the conspiracy when he left the ranch during the

finishing process,2 we must further inquire what his withdrawal would have

accomplished with respect to the charges against him. See United States v.

Gonzalez, 797 F.2d 915, 917 (10th Cir. 1986).

In order to prove a defendant is guilty of a criminal drug conspiracy as a

principal under 21 U.S.C. § 846, the government must prove two or more persons

agreed to violate the law; the defendant knew the essential objectives of the

conspiracy; and the defendant knowingly and voluntarily became part of the

conspiracy. Langston, 970 F.2d at 705. To be guilty of aiding and abetting a

drug conspiracy under 18 U.S.C. § 2, the defendant must associate himself with

the venture, participate in it as something he wishes to bring about, and seek by

his action to make it succeed. Id. (citations omitted). The government must

further prove "'the commission of the offense by someone and the aiding and

abetting by the defendant so charged.'" Id. (quoting Roth v. United States, 339

F.2d 863, 865 (10th Cir. 1964)).
-6-

Once any conspirator commits an overt act in furtherance of the object of

the agreement, "the crime of conspiracy is complete; and no member of the

conspiracy can withdraw from that crime." Gonzalez, 797 F.2d at 916. As we

noted in Gonzalez, "when a withdrawal does occur, in the sense of disassociation

from the acts of a conspiracy, the withdrawing conspirator is exonerated only with

respect to future acts." Id. at 917 (emphasis added). Given that Mr. McIlroy had

already agreed to manufacture and had participated in the manufacture of

amphetamine prior to his departure from the ranch, his withdrawal would not

absolve him of the either the earlier completed conspiracy or of the manufacture

of amphetamine. See Langston, 970 F.2d 706-07 (detailing sufficiency of the

evidence of conspiracy against Mr. McIlroy).

Since a withdrawal defense would have been of no aid to Mr. McIlroy,

counsel did not act unreasonably in choosing not to raise a futile defense that

would have limited significantly his strategic options. See Strickland, 466 U.S. at

690 ("strategic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable"). Consequently,

failure to raise the withdrawal defense resulted in no prejudice to Mr. McIlroy. 
3

 Since Mr. McIlroy failed to allege sufficient facts to support his

ineffective assistance of counsel claim, we conclude no evidentiary hearing is

required. See Lasiter v. Thomas, 89 F.3d 699, 702-03 (10th Cir.), cert. denied,

117 S. Ct. 493 (1996).

-7-

Thus, Mr. McIlroy's ineffective assistance of counsel claim is without merit.3

Mr. McIlroy's claim of prosecutorial misconduct similarly relies on the

same misapprehension of the impact of his alleged withdrawal on his culpability

for past acts and is without merit.

The judgment of the district court is AFFIRMED.

Entered for the Court

WADE BRORBY

United States Circuit Judge