United States v. Thomas , 305 F. App'x 960 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6977
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LENDRO MICHAEL THOMAS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge.
(1:03-cr-00189-JFM-1; 1:07-cv-02741-JFM)
Submitted: December 17, 2008 Decided: January 5, 2009
Before MICHAEL, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lendro Michael Thomas, Appellant Pro Se. John Francis Purcell,
Jr., Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lendro Michael Thomas appeals the district court’s
order denying his 28 U.S.C.A. § 2255 (West Supp. 2008) motion.
The district court granted Thomas a certificate of appealability
on his contention that his trial attorney was ineffective for
failing to move to dismiss the indictment pending against him
because of a violation of the Speedy Trial Act and Thomas’ Sixth
Amendment right to a speedy trial. After a careful review of
the record, we conclude Thomas did not receive ineffective
assistance of counsel; accordingly, for the reasons discussed
below, we affirm the district court’s order.
In April 2005, Thomas was convicted, following a jury
trial, of various drug and firearms offenses and was sentenced
to 204 months’ imprisonment. Thomas appealed, and in an
unpublished opinion, this court affirmed his conviction and
sentence. See United States v. Thomas, 189 F. App’x 219 (4th
Cir. 2006) (No. 05-4496).
Thomas subsequently filed a motion to vacate, set
aside, or correct his sentence, pursuant to 28 U.S.C.A. § 2255,
raising multiple issues. Relevant to this appeal, however, is
the single issue of whether Thomas’ attorney was ineffective for
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failing to object to the delay in trying Thomas. 1 Construed
liberally, Thomas’ § 2255 motion raised this issue pursuant to
both the Speedy Trial Act (the “Act”), codified at 18 U.S.C.
§§ 3161-3174 (2006), and the Sixth Amendment. Thomas maintained
the Government exceeded by twenty-three days the seventy-day
period allotted by the Act within which to try a defendant on
felony charges. Thomas claimed he was prejudiced by this delay
because, prior to commencement of his trial, his co-defendant,
Edwin Matthews, died, and was unavailable to provide what Thomas
asserted would be exculpatory testimony.
Citing Barker v Wingo, 407 U.S. 514 (1972), the
district court denied the claim, noting that, “[i]f for no other
reason, Thomas’ Speedy Trial Act claim fails because he has
demonstrated no prejudice resulting from the delay in bringing
him to trial.” The district court concluded Matthews died
before Thomas could viably assert his speedy trial right, and
that Thomas had not established that Matthews would have
testified at all or provided exculpatory testimony.
Thomas filed a timely Fed. R. Civ. P. 59(e) motion for
reconsideration arguing that, because counsel’s failure to move
1
This is the sole issue we address because it is the single
issue on which the district court granted a certificate of
appealability, and Thomas has not moved to expand the
certificate of appealability to include any other issues. 4th
Cir. R. 22(a)(2).
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for a dismissal based on a violation of the Act was not subject
to harmless error review, counsel’s error was presumptively
prejudicial under Strickland. 2 Thomas further alleged actual
prejudice because, had counsel raised the issue, the indictment
would have been dismissed as violative of the Act. The district
court denied the motion in a margin order.
Thomas subsequently filed an application for a
certificate of appealability in which he re-asserted and
expanded the argument raised in his Rule 59(e) motion. Thomas
argued the district court’s conclusion that Thomas did not
establish prejudice was debatable because, pursuant to the
Supreme Court’s decision in Zedner v. United States, 547 U.S.
489 (2006), a violation of the Act is not subject to harmless
error review, and other precedential authority established that
errors not subject to harmless error review are per se
prejudicial under Strickland. Thomas also reiterated his claim
of actual prejudice: being tried and convicted on an indictment
that should have been dismissed. 3 In a margin order, the
district court granted Thomas’ request for a certificate of
appealability.
2
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
3
Thomas asserted that, between his May 1, 2003 initial
appearance and his June 14, 2004 trial date, more than seventy
non-excludable days elapsed, in violation of the Act.
4
To succeed on his claim that his attorney was
ineffective for failing to seek dismissal of the indictment
based on the alleged speedy trial violation, Thomas must show
the failure on counsel’s part constituted deficient performance,
and that Thomas suffered prejudice as a result. Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). Under Strickland’s
first prong, a defendant must demonstrate that counsel’s
performance “fell below an objective standard of reasonableness”
under prevailing professional norms. Id. at 688. To satisfy
the second prong, a defendant must show “a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at
694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. Courts may bypass
the performance prong and proceed directly to the prejudice
prong when it is easier to dispose of the case for lack of
prejudice. Id. at 697.
A criminal defendant’s right under the Act is separate
and distinct from his Sixth Amendment right to a speedy trial.
See United States v. Woolfolk, 399 F.3d 590, 594-98 (4th Cir.
2005); United States v. Feurtado, 191 F.3d 420, 426 (4th Cir.
1999). Analysis of a Sixth Amendment speedy trial claim is
governed by the Supreme Court’s holding in Barker, which sets
forth four factors to determining whether the right has been
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violated: (1) the length of the delay; (2) the reason for the
delay; (3) the defendant’s assertion of his right to a speedy
trial; and (4) the extent of prejudice to the defendant.
Barker, 407 U.S. at 530.
Under the Act, a defendant facing felony charges must
be brought to trial within seventy days of the later of his
indictment or his initial appearance before a judicial officer.
18 U.S.C. § 3161(c)(1). If there is a violation of the Act,
upon counsel’s motion, the indictment must be dismissed,
although the trial court has the discretion to determine whether
the dismissal is with or without prejudice. 18 U.S.C.
§ 3162(a)(2). Neither type of dismissal is “the presumptive
remedy for a Speedy Trial Act violation.” United States v.
Taylor, 487 U.S. 326, 334 (1988). Section 3162(a)(2) lists the
specific factors that a court must consider when deciding
whether to dismiss a case with or without prejudice due to a
Speedy Trial violation: “the seriousness of the offense; the
facts and circumstances of the case which led to the dismissal;
and the impact of a reprosecution on the administration of this
chapter and on the administration of justice.” Although not
dispositive, “the presence or absence of prejudice to the
defendant” is also “relevant for a district court’s
consideration,” and may be considered in conjunction with the
third factor. Taylor, 487 U.S. at 334, 341; see also United
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States v. Howard, 218 F.3d 558, 561-62 (6th Cir. 2000); United
States v. Pierce, 17 F.3d 146, 149 (6th Cir. 1994). While
consideration of these factors guides a court’s decision to
dismiss an indictment with or without prejudice, see United
States v. Robinson, 389 F.3d 582, 588-90 (6th Cir. 2004)
(conducting “substantive review” of record in light of statutory
factors and resulting prejudice to determine dismissal without
prejudice was appropriate), these factors are not determinative
in assessing whether there was a violation of the Act. 18
U.S.C. § 3162(a)(2); Zedner, 547 U.S. at 499.
We first conclude counsel’s decision not to raise a
Sixth Amendment challenge was appropriate, under Barker, and
thus his performance was not objectively unreasonable. Little
more than a year passed between Thomas’ initial appearance and
commencement of his trial and, according to Thomas, almost
eleven months of that time was attributable to adjudication of
Thomas’ motion to suppress. The fairly short delay would not
have triggered evaluation of Barker’s other factors. United
States v. MacDonald, 635 F.2d 1115, 1117 (4th Cir. 1980)
(concluding a seven-month delay was “entirely too short to
‘trigger’ further inquiry under Barker”). Accordingly, Thomas
fails to demonstrate he was prejudiced by counsel’s failure to
raise a Sixth Amendment challenge, because the result of the
proceeding would not have been different if counsel had done so.
7
See Truesdale v. Moore, 142 F.3d 749, 756 (4th Cir. 1998) (“It
is certainly reasonable for counsel not to raise unmeritorious
claims. . . . [B]ecause these claims would have been dismissed
had they been raised, [the defendant] cannot show a reasonable
probability of any different outcome . . . .”).
Nor was Thomas prejudiced by counsel’s failure to move
to dismiss the indictment based on the Act. The length of
delay, the seriousness of the narcotics and firearm charges, and
the lack of evidence of prosecutorial neglect or misconduct
causing the delay would have, at most, resulted in a dismissal
without prejudice. United States v. Gardner, 488 F.3d 700, 719
(6th Cir. 2007); Robinson, 389 F.3d at 588 (concluding thirty-
one-day delay, “although not insubstantial, was not severe
enough to warrant a dismissal with prejudice regardless of the
other circumstances”); United States v. Jones, 887 F.2d 492, 495
(4th Cir. 1989). Moreover, Thomas was not prejudiced by the
delay because Matthews was unavailable to testify as of his
death in June 2003, far before the alleged violation occurred. 4
Thus, counsel’s failure to raise the issue was not prejudicial.
4
For the first time in his Rule 59(e) motion, Thomas
asserted a new basis for prejudice: that he was tried and
convicted on an indictment that should have been dismissed.
However, this is plainly a deviation from Thomas’ original basis
for prejudice — Matthews’ death prior to Thomas’ trial — and
thus was improperly raised in the district court for the first
time in his motion for reconsideration. “Rule 59(e) motions may
(Continued)
8
Accordingly, while we grant Thomas’ motion to strike
his initial informal brief and to replace it with his
supplemental informal brief, we affirm the district court’s
order denying Thomas’ § 2255 motion. We further deny Thomas’
motions for appointment of counsel and oral argument. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
not be used . . . to raise arguments which could have been
raised prior to the issuance of the judgment, nor may they be
used to argue a case under a novel legal theory that the party
had the ability to address in the first instance.” Pac. Ins.
Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.
1998).
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