                     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United States of America,                *     [UNPUBLISHED]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 James B. Loken became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 1, 2003.
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


      **
      The Honorable John Tunheim, United States District Judge for the District of
Minnesota.

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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.




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