United States v. Jeffery McNealy ( 2013 )

Case: 12-51291 Document: 00512466646 Page: 1 Date Filed: 12/10/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 12-51291 FILED
Summary Calendar December 10, 2013
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff−Appellee,
versus
JEFFERY C. MCNEALY,
Defendant−Appellant.
Appeal from the United States District Court
for the Western District of Texas
No. 3:11-CR-3015-1
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
Jeffery McNealy appeals his jury-trial conviction of receipt/distribution
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 12-51291 Document: 00512466646 Page: 2 Date Filed: 12/10/2013
No. 12-51291
of material involving the sexual exploitation of children and possession of
material involving the sexual exploitation of children. For the first time on
appeal, McNealy contends he was denied his Sixth Amendment right to the
effective assistance of counsel because his attorney failed to retain a defense
expert in the field of computer forensics.
“[T]he general rule in this circuit is that a claim for ineffective assistance
of counsel cannot be resolved on direct appeal when the claim has not been
raised before the district court since no opportunity existed to develop the rec-
ord on the merits of the allegations.” United States v. Cantwell, 470 F.3d 1087,
1091 (5th Cir. 2006) (internal quotation marks and citation omitted). Because
we conclude that “we cannot fairly evaluate the claim from the record,” we
decline to consider McNealy’s claim on direct appeal. See United States v. Gul-
ley, 526 F.3d 809, 821-22 (5th Cir. 2008); United States v. Lampazianie, 251
F.3d 519, 527 (5th Cir. 2001).
AFFIRMED.
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