Hamili Milligan v. United States , 213 F. App'x 964 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 17, 2007
No. 06-12109 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 06-00054-CV-T-26-EAJ
03-00293-CR-T-2
HAMILI MILLIGAN,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 17, 2007)
Before ANDERSON, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Federal prisoner Hamili Milligan, proceeding pro se, appeals the district
court’s denial of his motion to vacate, set aside, or correct his sentence, filed
pursuant to 28 U.S.C. § 2255. Milligan filed a notice of appeal from the denial of
relief. This Court granted a certificate of appealability (COA) on the following
issues:
(1) Whether appellant’s trial counsel was ineffective for failing to file a
motion to dismiss based on a violation of the Speedy Trial Act, 18 U.S.C.
§ 3161(b).
(2) Whether appellant’s appellate counsel was ineffective for failing to raise
this first issue on direct appeal.
As to the first claim, Milligan has shown a violation of the Speedy Trial Act
occurred, but has failed to show he was prejudiced. As to the second claim, this
Court would not hear a direct appeal on whether Milligan’s trial counsel was
ineffective because the issue was not first raised in the district court. We,
therefore, affirm the district court’s denial of relief.
I. STANDARD OF REVIEW
Whether a defendant received ineffective assistance of counsel under the
Sixth Amendment is a mixed question of law and fact reviewed de novo. Mincey v.
Head, 206 F.3d 1106, 1142 (11th Cir. 2000). Our review is limited to the issues
specified in the COA issued pursuant to 28 U.S.C. § 2253(c). Murray v. United
States, 145 F.3d 1249, 1250–51 (11th Cir. 1998).
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II. DISCUSSION
A. Ineffective Assistance of Trial Counsel
To establish a claim of ineffective assistance of counsel, Milligan must
show: (1) his counsel’s performance fell below an objective standard of reasonable
professional assistance; and (2) there is a reasonable probability that the outcome
would have been different but for his lawyer’s unprofessional errors. Strickland v.
Washington, 104 S. Ct. 2053, 2064–68 (1984); Grossman v. McDonough, 466 F.3d
1325, 1344 (11th Cir. 2006). Counsel is presumed to have rendered adequate
assistance and to have exercised reasonable professional judgment. Strickland, 104
S. Ct. at 2064.
Even if Milligan can show his counsel’s performance fell below an objective
standard of reasonable professional assistance, he is unable to show prejudice. The
Speedy Trial Act provides “Any . . . indictment charging an individual with the
commission of an offense shall be filed within thirty days from the date on which
such individual was arrested . . . .” 18 U.S.C. § 3161(b). If the Government files
the indictment after this time limit, which the Government did in this case, the
charges will be dismissed with or without prejudice with the district court
considering the following factors: “the seriousness of the offense; the facts and
circumstances of the case which led to the dismissal; and the impact of a
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reprosecution on the administration of this chapter and the administration of
justice.” 18 U.S.C. § 3162(a)(1). This Court has previously held that drug and
firearm charges are serious offenses when considering whether to dismiss with or
without prejudice. See United States v. Williams, 314 F.3d 552, 559 (11th Cir.
2002).
Milligan has failed to establish that his trial counsel’s failure to file a motion
to dismiss prejudiced him. The district court would have likely dismissed the
charges without prejudice, and the case would have been refiled. In addition,
Milligan’s claims would not qualify as per se prejudice. See United States v.
Cronic, 104 S. Ct. 2039, 2046–47 (1984). The district court correctly found that
Milligan failed to show any prejudice from his counsel’s failure to file a motion to
dismiss.
B. Ineffective Assistance of Appellate Counsel
Milligan next argues his appellate counsel was constitutionally ineffective
because his appellate counsel failed to raise the issue of his trial counsel’s
ineffectiveness on appeal. An ineffective assistance of appellate counsel claim is
considered under the same two-part test announced in Strickland v. Washington,
104 S. Ct. 2052 (1984). Grubbs v. Singletary, 120 F.3d 1174, 1175 (11th Cir.
1997).
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Milligan’s appellate counsel could not be constitutionally ineffective
because this Court would not have heard his claim for ineffective assistance of trial
counsel on direct appeal. This Court does not consider claims of ineffective
assistance of counsel on direct appeal unless those claims were first raised in the
district court with an opportunity to develop a factual record relevant to the merits
of the claim. United States v. Perez-Tosta, 36 F.3d 1552, 1563 (11th Cir. 1994).
Milligan did not assert ineffective assistance of trial counsel prior to his direct
appeal. In fact, he stated he was satisfied with his counsel at his plea colloquy.
This Court would not have heard his claim on direct appeal; therefore, his appellate
counsel could not have been constitutionally ineffective for not raising the issue.
III. CONCLUSION
Based on the above discussion, Milligan’s claims for ineffective assistance
of trial and appellate counsel must fail. His failed to show his trial counsel’s error
caused him any prejudice. In addition, his appellate counsel could not have been
ineffective for not raising the ineffective assistance of trial counsel on direct appeal
because this Court would not have heard the claim. We, therefore, AFFIRM the
district court.
AFFIRMED.
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