United States v. Justin Bicket , 581 F. App'x 608 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-3797
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Justin R. Bicket
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: November 4, 2014
Filed: November 6, 2014
[Unpublished]
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Before WOLLMAN, BYE, and SMITH, Circuit Judges.
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PER CURIAM.
Justin Bicket, who was convicted of being a felon in possession of a firearm
after a jury trial, see United States v. Bicket, 497 Fed. Appx. 679 (8th Cir. 2013) (per
curiam), appeals the district court’s1 order denying his 28 U.S.C. § 2255 motion
without an evidentiary hearing. In his motion, Bicket claimed that his trial counsel
provided ineffective assistance by failing to move to dismiss the indictment on
speedy-trial grounds, and by failing to communicate a government plea offer.
Following de novo review, we conclude the denial of relief was proper. The
record establishes that Bicket’s counsel sought continuances to prepare for trial, that
Bicket waived his speedy-trial rights, and that counsel’s decision not to seek
dismissal of the indictment did not amount to deficient performance. See Thomas v.
United States, 737 F.3d 1202, 1206, 1209 (8th Cir. 2013) (standard of review;
decision whether to move to dismiss for speedy trial violation is tactical decision of
trial strategy), cert. denied, 134 S. Ct. 2323 (2014). Further, Bicket’s attestations in
support of his second ineffective-assistance claim--that his counsel “never” informed
him of a plea offer--were contradicted by the record, including by his testimony at his
sentencing hearing that he was aware of a specific eve-of-trial plea offer. The denial
of relief without an evidentiary hearing was thus not an abuse of discretion. See
Winters v. United States, 716 F.3d 1098, 1103 (8th Cir.) (§ 2255 motion may be
dismissed without hearing if movant’s allegations, accepted as true, would not entitle
him to relief; or if allegations cannot be accepted as true because they are
contradicted by record, are inherently incredible, or are conclusions rather than
statements of fact), cert. denied, 134 S. Ct. 447 (2013).
Accordingly, we affirm.
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1
The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
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