Michael L. Chambliss v. United States

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15016 ELEVENTH CIRCUIT
JUNE 23, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket Nos. 08-90034-CV-HL-5,
06-00031-CR-HL-5
MICHAEL L. CHAMBLISS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(June 23, 2010)
Before TJOFLAT, BIRCH and FAY, Circuit Judges.
PER CURIAM:
On March 4, 2008, we affirmed petitioner’s convictions for bank robbery
and for brandishing a firearm during the bank robbery. United States v.
Chambliss, 267 Fed.Appx. 870 (11th Cir. 2008). On October 22, 2008, petitioner
moved the district court to set aside his convictions pursuant to 28 U.S.C. § 2255.
The district court denied his motion. He appealed, and we issued a certificate of
appealability as to one issue: “Whether [petitioner’s trial attorney provided
ineffective assistance of counsel by failing to move for a dismissal of the
indictment, pursuant to 18 U.S.C. § 3162(a)(2),” the Speedy Trial Act.
The district court found that trial counsel did not provide ineffective
assistance because no violation of the Speedy Trial Act occurred. On appeal,
petitioner contends that over 70 days of includable time elapsed between his
arraignment and trial; therefore, his trial counsel was ineffective for failing to
move to dismiss the indictment. In response, the Government concedes that a
Speedy Trial Act violation occurred, but contends that petitioner failed to establish
either deficient performance or prejudice.
An ineffective-assistance-of-counsel claim presents a mixed question of law
and fact that we review de novo. Williams v. Allen, 598 F.3d 778, 788 (11th Cir.
2010). To succeed on an ineffective-assistance claim, a petitioner must show that
(1) his counsel’s performance was deficient, and (2) this deficient performance
prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
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2052, 2064, 80 L.Ed.2d 674 (1984). Under the deficient performance prong, the
petitioner must show that his attorney’s representation fell below an objective
standard of reasonableness. Id. at 687-88. 104 S.Ct. at 2064. To establish
prejudice, the petitioner must prove that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
Because the petitioner must satisfy both prongs of Strickland in order to prevail,
we need not address the performance prong if he has not shown prejudice, and vice
versa. Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000).
The Speedy Trial Act provides that a criminal defendant must be tried within
70 days of the filing of an indictment or an arraignment, whichever is later. 18
U.S.C. § 3161(c)(1). “[F]or purposes of the Act, a jury trial ‘commences’ when
the court begins the voir dire.” United States v. Gonzalez, 671 F.2d 441, 443 (11th
Cir. 1982). If a case involves multiple defendants, the 70-day period begins to run
after the last codefendant is indicted or arraigned. United States v. Schlei, 122 F.3d
944, 985 (11th Cir. 1997). Certain events, including delays resulting from pretrial
motions and continuances, constitute “excludable” time and toll the speedy trial
clock. See 18 U.S.C. § 3161(h). A delay resulting from a continuance, however,
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only tolls the clock if the district court makes findings that the ends of justice
served by granting the continuance outweigh the best interests of the public and the
defendant in a speedy trial. 18 U.S.C. § 3161(h)(7)(A). If the defendant is not
brought to trial within the 70-day period, the defendant may move to dismiss the
indictment, and the district court must grant that motion and dismiss the
indictment. 18 U.S.C. § 3162(a)(2).
In determining whether the indictment should be dismissed with or without
prejudice, the district court must consider: (1) the seriousness of the offense; (2)
the facts and circumstances that led to the dismissal; (3) the impact of a
reprosecution on the administration of justice. Id. “Where the crime charged is
serious, the court should dismiss only for a correspondingly severe delay.” United
States v. Russo, 741 F.2d 1264, 1267 (11th Cir. 1984). Offenses involving the use
of firearms are serious. United States v. Williams, 314 F.3d 552, 559 (11th Cir.
2002).
In considering the facts and circumstances that led to the dismissal, “we
focus on the culpability of the delay-producing conduct.” Id. (quotation omitted).
With respect to the impact of re-prosecution on the administration of justice, we
consider aggravating and mitigating factors such as the length of the delay and the
prejudice suffered by the defendant. Id. at 560. We have indicated that a 68-day
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violation of the Speedy Trial Act is not, in and of itself, so substantial as to
mandate a dismissal with prejudice. Id.Federal law establishes a five-year statute of limitations for noncapital
crimes such as bank robbery and using a firearm during a crime of violence. See
18 U.S.C. § 3282(a). When an indictment is dismissed without prejudice after the
limitations period has run, a new indictment may be returned within six months of
the date of dismissal. 18 U.S.C. § 3288.
In this case, petitioner’s trial did not commence within the 70-day period
prescribed by the Speedy Trial Act. Therefore, the Government properly concedes
that a violation of the Act occurred. We need not address whether petitioner’s trial
counsel provided constitutionally deficient performance by failing to move for
dismissal of the indictment because we conclude that petitioner did not suffer
prejudice. If counsel had moved to dismiss the indictment, the district court would
have granted a dismissal without prejudice because of the serious nature of the
charges and because the delay did not harm petitioner’s ability to present a defense.
After the district court dismissed the indictment without prejudice, the Government
would have re-indicted him on the same charges. If the statute of limitations had
run by the time that the indictment was dismissed, the government still would have
had six months to obtain a new indictment. See 18 U.S.C. § 3288. Because the
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outcome of the proceedings would not have been different had counsel moved to
dismiss the indictment, petitioner has not shown prejudice. Accordingly, we affirm
the district court’s denial of his ineffective-assistance-of-counsel claim.
AFFIRMED.
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