United States v. Slape

Case: 18-41085 Document: 00516430949 Page: 1 Date Filed: 08/12/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 12, 2022
No. 18-41085
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Cory Hays Slape,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:17-CV-22
Before Richman, Chief Judge, and Clement and Engelhardt,
Circuit Judges.
Kurt D. Engelhardt, Circuit Judge:
Defendant-Appellant Cory Hays Slape appeals the district court’s
denial of his 28 U.S.C. § 2255 habeas corpus petition. Slape claims that his
trial counsel was ineffective in failing to challenge asserted violations of
Slape’s double jeopardy rights.
For the reasons that follow, we AFFIRM.
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I
A
In 2011 and 2012, Cory Hays Slape dealt heroin and marijuana to a
group of regular customers. Slape’s most notable patron was a 16-year-old
girl who overdosed on heroin she purchased from Slape, but thankfully
survived her resulting brush with death. Searches of Slape’s car and bedroom
uncovered three guns and a full complement of drug-dealing paraphernalia.
In April 2012, a federal grand jury charged Slape with conspiracy to
distribute and possess with intent to distribute more than 100 grams but less
than one kilogram of heroin. In April 2013, the same grand jury returned a
superseding indictment including three additional firearms charges and
alleging that the same drug-dealing conspiracy involved a higher quantity and
greater mix of illicit drugs. After initially pleading not guilty, Slape pleaded
guilty at trial. In exchange for Slape’s guilty plea on the superseding
indictment’s principal drug-dealing charge (“Count 1”), the Government
dismissed all other charges. The parties stipulated to a recommended prison
sentence of 240 months. The district court followed the parties’ sentencing
recommendation and dismissed all remaining counts in the superseding
indictment “on the motion of the United States.”
Some months later, the Government discovered the procedural snag
at the heart of this case: the superseding indictment to which Slape pleaded
guilty had been returned by a grand jury whose term had expired. The
Government promptly notified Slape—who was then incarcerated in
Arkansas—of the mistake. In April 2015, Slape’s appointed counsel
informed him that the Government was “prepared to offer” him a 144-
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month sentence if he pleaded guilty to the original indictment, which had
been returned during the grand jury’s rightful term.1
Unfazed by its mix-up, the Government persisted in its efforts to
prosecute Slape. In May 2015, a new grand jury returned a new indictment
charging Slape with the same drug-dealing conspiracy alleged in Count 1 of
the original grand jury’s untimely superseding indictment. Conceding “that
the indictment to which the defendant was convicted and sentenced [was]
invalid because it was returned by a grand jury whose term had expired,” the
Government moved to dismiss that indictment. The district court granted
the Government’s motion and dismissed the faulty superseding indictment
without prejudice.
In October 2015, Slape struck a new plea deal with the Government.
In a revised plea agreement, Slape agreed to plead guilty to an information
charging him with conspiracy to distribute and possess with intent to
distribute a lesser quantity of heroin than that alleged in Count 1 of the faulty
superseding indictment he was originally convicted and sentenced on. This
time, however, the parties stipulated to a reduced prison sentence of 144
months—an 8-year decrease from Slape’s initial sentence. To acknowledge
Slape’s time served on the invalid initial charge, the parties included the
following special provision:
The parties recommend that the Court include the
following in the judgment: “The defendant is hereby
committed to the custody of the Attorney General for a 144-
month term of incarceration. In reviewing the defendant’s
1
As the Government now observes, “the parties apparently overlooked that the
[original] indictment had been dismissed.” This mix-up has little practical import on
appeal, but it does contribute to Slape’s overall impression “that this whole situation is a
complete mess and it is a mess that was created by the Government’s mistakes with the
grand jury and the dismissal.”
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eligibility for prior custody credit in accordance with 18 U.S.C.
§ 3585(b), the Bureau of Prisons shall evaluate time defendant
spent in custody in [connection with the prior federal criminal
action against him]. The indictment in that case has been
dismissed as void. The Court finds that the offense for which
defendant spent time in custody [in that case] is the same
offense as that for which sentence is imposed in this case.
Insofar as necessary to have the same effect as if the term began
on the original date of imposition, and in accordance with
Sentencing Guideline 5G1.3, the 144-month term shall be
reduced by the amount of prior custody credit that is unable to
be applied as a result of 18 U.S.C. § 3585(b) for the period of
confinement between the date of imposition of the original
term for this offense and the date of this judgment.”
At a plea hearing in which Slape indicated satisfaction with his trial
counsel’s performance and familiarity with the “grand jury mess-up[]” that
had occurred in his initial case, Slape pleaded guilty in accordance with the
new plea agreement. The district court then imposed the 144-month
sentence the parties agreed to and noted for the record the key terms of the
provision quoted above.
B
While serving his revised prison sentence in 2017, Slape filed a § 2255
habeas corpus petition alleging double jeopardy violations and ineffective
assistance of trial counsel. In his petition to the district court, Slape made
essentially the same arguments he now makes in this court. In Slape’s telling,
legal jeopardy attached at the opening of the 2013 jury trial during which he
ultimately decided to plead guilty and terminated when his original sentence
was imposed in 2014. This attachment-and-termination, Slape contends,
rendered the Government’s subsequent prosecution for what it admitted was
the same criminal conduct an unconstitutional double jeopardy violation,
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which in turn rendered the failure of Slape’s trial counsel to object to—or
even raise the possibility of—such a violation ineffective assistance of counsel.
Without conducting a hearing, the district court accepted a
magistrate’s recommendation that Slape’s § 2255 motion be denied. Slape
appeals that ruling here. As explained below, we agree with the district court.
Slape’s trial counsel cannot be deemed ineffective for failing to advance
arguments that have no merit to begin with.
II
We begin with Slape’s ineffective assistance of counsel claim. The
legal standard for Sixth Amendment ineffective-assistance claims is familiar
and exacting. To prevail on an ineffective-assistance claim, a convicted
defendant must show both (1) deficient performance and (2) prejudice.
Strickland v. Washington, 466 U.S. 668, 687 (1984). “The proper standard
for attorney performance is that of reasonably effective assistance,” and “an
error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error had no effect
on the judgment.” Id. at 687, 691 (cleaned up).
In this case, Slape fails to make either of Strickland’s twin showings.
Start with “deficient performance.” Slape’s argument on this issue is
straightforward and reducible, in essence, to the following tautology:
(1) Slape’s trial counsel was ineffective in failing to inform him of a glaring
double jeopardy issue that reasonably effective counsel would have used to
fatally undermine the legal basis for Slape’s second guilty plea; and (2) the
failure of Slape’s trial counsel to raise or advise of this glaring issue subjected
Slape to a Fifth Amendment double jeopardy violation that renders his
present conviction invalid.
However you slice it, Slape’s argument rests on a fundamental
assumption: namely, that a double jeopardy issue that any reasonably
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effective lawyer would have noticed and advised his client of in fact existed
in the first place. We hold today that such an issue did not exist in Slape’s
case, but it bears noting that we need not do so to reject Slape’s argument for
deficient performance.
Strickland’s deficiency prong requires defendants to “demonstrate
that [their] attorney’s performance fell below an objective standard of
reasonableness.” United States v. Herrera, 412 F.3d 577, 580 (5th Cir. 2005).
“This reasonableness standard requires counsel ‘to research relevant facts
and law, or make an informed decision that certain avenues will not prove
fruitful,’” United States v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000) (quoting
United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999)), which in turn
demands that “solid, meritorious arguments based on directly controlling
precedent be discovered and brought to the court’s attention.” Williamson,
183 F.3d at 463 (cleaned up). Because no such arguments and “directly
controlling precedents” were available to Slape’s trial counsel here,2 he
could not have flunked this test. As we’ve consistently observed, the Sixth
Amendment’s reasonableness standard does not require counsel to guess
correctly on questions of first impression, but merely to present “directly
controlling precedents” in support of meritorious arguments their clients
might beneficially advance. See, e.g., Williamson, 183 F.3d at 462–63. There
is no indication here that Slape’s trial counsel failed to meet this modest
professional obligation, and as a result, there is no indication that Slape
received constitutionally deficient representation.
2
If such precedents did exist, we trust that Slape’s capable appellate counsel would
have brought them to the court’s attention. Tellingly, he did not, instead staking Slape’s
entire appeal on the inapposite Eleventh Circuit case of United States v. McIntosh, 580 F.3d
1222 (11th Cir. 2009).
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Moreover, Slape’s trial counsel cannot possibly be deemed ineffective
for an even more fundamental reason: because ineffective assistance of
counsel cannot arise from the “failure to raise a legally meritless claim,”
and—as we hold below—Slape’s double jeopardy argument is just that. See
Smith v. Puckett, 907 F.2d 581, 585 n.6 (5th Cir. 1990) (“Counsel is not
deficient for, and prejudice does not arise from, failure to raise a legally
meritless claim.”).
III
Slape’s argument that a double jeopardy violation occurred is similarly
straightforward and unavailing. As Slape contends, the “Fifth Amendment’s
Double Jeopardy Clause protects against a second prosecution for the same
offense after conviction,” as well as “multiple punishments for the same
offense,” and both of those things occurred here. Indeed, Slape continues,
the “Government reindicted [him] in the 2015 case one week before it filed
its motion to dismiss the original indictment and three weeks before the
district court entered an order granting [its] dismissal,” so consequently,
“[t]he 2015 case was a second prosecution for the same offense after Slape’s
conviction in the 2012 case.”
This claim is eye-catching in the abstract—particularly considering
the Government’s fault in bungling Slape’s original case—but it withers
under closer examination. As the Government correctly notes, the Double
Jeopardy Clause3 requires more than the mere appearance of a successive
prosecution and/or punishment; it requires defined instances of the
“attachment” and “termination” of a valid course of prosecutorial jeopardy.
3
The Fifth Amendment’s Double Jeopardy Clause provides that “nor shall any
person be subject for the same offence to be twice put in jeopardy of life or limb.” U.S.
Const. amend. V.
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See United States v. Garcia, 567 F.3d 721, 730 (5th Cir. 2009) (“In the
successive prosecution context, the authorities hold that a defendant’s
double jeopardy concerns arise only after original jeopardy attaches and
terminates.”). Here, neither attachment nor termination occurred in the
Government’s initial prosecution of Slape—however ham-fisted it may have
been.
In a jury trial, “jeopardy attaches when the jury is empaneled and
sworn.” United States v. Stricklin, 591 F.2d 1112, 1120 (5th Cir. 1979). As a
result, because Slape went to trial on the 2013 superseding indictment before
deciding to plead guilty midtrial, it might appear at first glance that jeopardy
did attach in the course of Slape’s initial prosecution. “But this is not an
ordinary case,” the Government asserts, “because the 2013 [superseding]
indictment was void from the outset.”
The Government is correct. We have never held directly that an
indictment returned by a defunct, out-of-term grand jury is void ab initio, but
at least two other circuits have,4 and we join those circuits in doing so today.
Our determination that an out-of-term grand jury’s indictment is void ab
initio—meaning “null from the beginning,”5 and therefore without legal
effect—accords with the well-established rule that a federal grand jury loses
all legal authority at the conclusion of its term, which may run for a maximum
4
The Government identifies the Second and Seventh Circuits as sister circuits that
have reached the natural conclusion that the acts of an expired grand jury are void ab initio.
See United States v. Macklin, 523 F.2d 193, 197 (2d Cir. 1975) (allowing the reindictment of
a defendant in a similar case because “[s]ince the grand jury had no power to indict,” its
initial actions were “void ab initio”); United States v. Bolton, 893 F.2d 894, 895, 898–901
(7th Cir. 1990) (per curiam) (affirming district court’s determination “that since the grand
jury had not been validly extended, the indictment was a nullity so that there was no
jurisdiction to try” the defendant initially).
5
See, e.g., Void Ab Initio, Black’s Law Dictionary (5th ed. 2016) (cleaned
up).
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of twenty-four months. See Fed. R. Crim. P. 6(g); 1 Fed. Prac. &
Proc. Crim. (Wright & Miller) § 114 (4th ed. 2021) (“Once the
grand jury is discharged or its term has expired it no longer has any legal
authority, and an indictment issued by an expired grand jury has no effect . . . .”
(emphasis added)).
There are good practical reasons for such a rule as well. For starters,
the Supreme Court and this court have consistently placed substantive and
technical realities ahead of mere appearances in double jeopardy cases. As
both courts have observed, the mere appearance of a successive
prosecution—and even the erroneous conviction or acquittal of a defendant in
certain invalid proceedings—does not suffice for the attachment of jeopardy
where a “fatal defect” in a criminal prosecution renders the proceedings
“void.” See, e.g., Ball v. United States, 163 U.S. 662, 669 (1896) (“An
acquittal before a court having no jurisdiction is, of course, like all the
proceedings in the case, absolutely void, and therefore no bar to subsequent
indictment and trial in a court which has jurisdiction of the offense.”);
Schlang v. Heard, 691 F.2d 796, 798 (5th Cir. 1982) (per curiam) (subsequent
trial of defendant was not barred by Double Jeopardy Clause even where
defendant had been tried and convicted on a “fatally defective” charge that
failed to allege required mens rea). Such is the case here as well, where an
initial prosecution and guilty plea were premised on a superseding indictment
returned by a grand jury made legally defunct by the expiration of its term.
See, e.g., Wright & Miller, supra, § 114.
Importantly—and as would be true in any similar case—our
recognition of the voidness ab initio of the faulty indictment on which Slape
was initially sentenced affronts neither of “the twin aims of the Double
Jeopardy Clause: protecting a defendant’s finality interests and preventing
prosecutorial overreaching.” United States v. Brune, 991 F.3d 652, 659 (5th
Cir. 2021) (quoting United States v. Patterson, 406 F.3d 1095, 1097 (9th Cir.
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2005) (Kozinski, J., dissenting from denial of rehearing en banc)). Put simply,
this is not a case where Slape’s finality interests were offended by a
successive prosecution—indeed, Slape was not acquitted but later reindicted
by pesky prosecutors, but was actually benefited by the Government’s
mistake, which resulted in an 8-year reduction in the sentence Slape
ultimately received for the very same crimes. Nor is this a case of
prosecutorial overreach—indeed, in admitting its mistake and promptly
pursuing a valid reindictment, the Government ensured that Slape was held
accountable for his serious criminal conduct but also treated fairly and
rewarded with sentencing credit for all time erroneously served. As such, this
is a far cry from the paradigmatic double jeopardy scenario the ratifiers of the
Fifth Amendment envisioned. There, the Government makes “repeated
attempts to convict an individual, thereby exposing him to continued
embarrassment, anxiety, and expense, while increasing the risk of an
erroneous conviction or an impermissibly enhanced sentence.” Ohio v.
Johnson, 467 U.S. 493, 498–99 (1984). Here, prosecutors admitted an honest
(and nonprejudicial) mistake while ensuring that Slape was held accountable
for serious criminal charges he voluntarily pleaded guilty to.
Slape’s counterarguments fall flat. The sole case Slape relies on in
support of his position is the Eleventh Circuit case of United States v.
McIntosh, 580 F.3d 1222 (11th Cir. 2009). There, the Eleventh Circuit found
a double jeopardy problem with the Government’s voluntary dismissal of an
indictment bearing the relatively benign and nonfatal flaw of an incorrect
date. Id. at 1225–29. Citing Supreme Court cases including Ball (supra), the
court acknowledged that a “fatal defect in an indictment may permit a second
indictment,” but simply concluded that the voluntarily dismissed indictment
at issue “did not contain that kind of flaw.” Id. at 1228 (emphasis added).
For that reason, McIntosh actually supports the Government’s position in this
case. As noted above, there is abundant reason to deem the flaw at issue here
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a fatal one—and, thus, the kind of flaw that places a case within the class of
void prosecutions that are legally incapable of placing a defendant in genuine
criminal jeopardy.
With little caselaw to back his position, Slape resorts to a “bottom
line” argument “that this whole situation is a complete mess and it is a mess”
of the Government’s doing. Slape specifically asserts that the Government’s
faulty initial conviction of Slape muddies Slape’s criminal record, “subject[s]
him to enhanced punishments in any future criminal proceeding,” and
“impact[s] his ability to seek employment and to live life in general.” On
these points, Slape is mistaken. Contrary to his suggestion, our ruling today
makes plain that Slape’s initial conviction and sentence were null and void
because they were premised on an indictment that was void ab initio. Any
employer or government body need only read this opinion to disabuse
themselves of any misimpression the Government’s unfortunate mix-up in
this case may have caused concerning Slape’s criminal history. Lest any
doubt remain, the record is now clear: Slape was not convicted of the same
crime twice; and he was not exposed to an unfairly enhanced punishment (in
fact, quite the opposite); he was, however, held accountable for a crime made
no less severe by an honest error spotted and corrected by respectable
prosecutors who both complied with the Double Jeopardy Clause and treated
Slape with fairness and dignity to boot.
* * *
It follows from the rule we’ve announced today that the expired grand
jury’s untimely superseding indictment in Slape’s first criminal case was null
and void when jeopardy would have otherwise attached at Slape’s jury trial
and, accordingly, could not have placed Slape in actual legal jeopardy within
the meaning of the Double Jeopardy Clause. Because the failure of Slape’s
trial counsel to advise Slape of a meritless double jeopardy argument was
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neither deficient nor prejudicial, the district court was correct to deny
Slape’s habeas corpus petition.
AFFIRMED.
12