USA v. Jeffery McNealy, No. 12-51291 (5th Cir. 2014)

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This opinion or order relates to an opinion or order originally issued on December 10, 2013.

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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 Summary Calendar FILED 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 record 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. Gulley, 526 F.3d 809, 821-22 (5th Cir. 2008); United States v. Lampazianie, 251 F.3d 519, 527 (5th Cir. 2001). AFFIRMED. 2

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