                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ______________

                                  No. 98-3197WM
                                  ______________

James E. Rhodenizer,                     *
                                         *
             Appellant,                  *
                                         * On Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri.
United States of America,                *
                                         * [Not to be published]
             Appellee.                   *
                                    ___________

                            Submitted: June 2, 1999
                                Filed: July 13, 1999
                                    ___________

Before WOLLMAN, Chief Judge, RICHARD S. ARNOLD and BEAM, Circuit
      Judges.
                           ___________

PER CURIAM.

      James Rhodenizer appeals from the District Court’s1 denial of his 28 U.S.C.
§ 2255 motion. We affirm.

       Following a jury trial, Rhodenizer was convicted of one count of possessing
methamphetamine with intent to distribute, and one count of possessing marijuana with
intent to distribute, both in violation of 21 U.S.C. § 841(a)(1); and two counts of

      1
        The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
carrying a firearm during and in relation to a drug trafficking offense, in violation of 18
U.S.C. § 924(c)(1) (“gun charges”). Rhodenizer’s convictions were affirmed on direct
appeal, and the facts underlying his convictions are set out in this Court’s prior opinion.
See United States v. Rhodenizer, 106 F.3d 222, 223-25 (8th Cir. 1997).

       In his section 2255 motion, Rhodenizer alleged as relevant that his counsel was
ineffective for not timely disclosing an alibi witness and for misrepresenting to him that
the gun charges had been dismissed, thereby causing him to reject the government’s
plea offer. The District Court denied Rhodenizer’s motion without a hearing.

       We review de novo the denial of Rhodenizer’s section 2255 motion, and, as it
was denied without an evidentiary hearing, will affirm only if the motion, files, and
record conclusively show he was not entitled to relief. See United States v. Duke, 50
F.3d 571, 576 (8th Cir.), cert. denied, 516 U.S. 885 (1995). To succeed on his
ineffective-assistance claims, Rhodenizer must show (1) his counsel’s performance was
professionally unreasonable, and (2) there is a reasonable probability that, but for
counsel’s unprofessional error, the result of the proceeding would have been different.
See Strickland v. Washington, 466 U.S. 668, 694 (1984).

       Regarding the alleged failure to designate the alibi witness, we note that counsel
explained at trial he had not known about the possible alibi witness until the weekend
before the Monday on which trial started, that counsel attested the witness had not
come forward earlier because of personal reasons, that Rhodenizer did not suggest how
his counsel could have learned of the witness, and that counsel attempted to use the
testimony once he learned of it. As Rhodenizer did not contend he told his counsel
about the witness, we conclude that counsel’s failure to designate the witness was not
ineffective assistance. See Schlup v. Armontrout, 941 F.2d 631, 639 (8th Cir. 1991),
cert. denied, 503 U.S. 909 (1992); Cox v. Wyrick, 642 F.2d 222, 226 (8th Cir.), cert.
denied, 451 U.S. 1021 (1981).


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       Assuming arguendo that Rhodenizer’s counsel misrepresented that the gun
charges had been dismissed, we agree with the District Court that Rhodenizer was not
thereby prejudiced, because he must have known that the representation was not
accurate. An instruction was read at the beginning of trial advising him the gun
charges were at issue, guns were discussed during the prosecutor’s opening statement,
evidence about the guns was introduced, and Rhodenizer did not dispute that the plea
offer remained open during the trial.

      Accordingly, we affirm.

      A true copy.

             Attest:

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




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