364 F.3d 727 (6th Cir. 2004), 03-1178, Campbell v. United States

Docket Nº:03-1178.
Citation:364 F.3d 727
Party Name:Robert CAMPBELL, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
Case Date:April 20, 2004
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 727

364 F.3d 727 (6th Cir. 2004)

Robert CAMPBELL, Petitioner-Appellant,


UNITED STATES of America, Respondent-Appellee.

No. 03-1178.

United States Court of Appeals, Sixth Circuit

April 20, 2004

Argued: March 18, 2004.

Rehearing Denied May 17, 2004.

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[Copyrighted Material Omitted]

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Dennis J. Clark (argued and briefed), Plunkett & Cooney, Detroit, MI, for Petitioner-Appellant.

Michael R. Mueller (argued and briefed), U.S. Attorney's Office, Detroit, MI, for Respondent-Appellee.

Before: COLE and GILMAN, Circuit Judges; SCHWARZER, Senior District Judge.[*]


GILMAN, Circuit Judge.

Robert Campbell appeals from the district court's denial of his post-conviction motion to vacate his sentence. For the reasons set forth below, we AFFIRM the judgment of the district court.


After two mistrials as a result of hung juries, a third grand jury indicted Campbell

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on the following three counts: (1) conspiracy to possess controlled substances with the intent to distribute and conspiracy to actually distribute the controlled substances, all in violation of 21 U.S.C. §§ 841(a)(1) and 846; (2) aiding and abetting the possession of cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and (3) aiding and abetting the possession of heroin with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.§ 2. In July of 1998, a jury found Campbell guilty on all counts. The district court sentenced Campbell to 324 months of imprisonment and 5 years of supervised release.

Campbell appealed, alleging numerous errors. In October of 2000, this court issued an amended opinion that affirmed his conviction and sentence by a 2 to 1 vote, with the dissent favoring a new trial because of the alleged prosecutorial misconduct that occurred during closing argument.

Campbell petitioned to vacate his sentence pursuant to 28 U.S.C. § 2255 in August of 2001. The case was referred to a magistrate judge, who issued a 30-page Report and Recommendation (R & R) concluding that the motion should be denied. Over Campbell's objections, the district court adopted the R & R. Campbell then applied for a certificate of appealability as to nine issues, all of which the district court certified. In January of 2003, Campbell filed a timely notice of appeal.


A. Ineffective-assistance-of-counsel claims

Campbell asserts numerous ineffective-assistance-of-counsel claims on appeal. To prevail on these claims, he must establish that (1) his "counsel's performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for the deficiency, the outcome of the proceedings would have been different." Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003). "The objective standard of reasonableness is a highly deferential one and includes a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Mason v. Mitchell, 320 F.3d 604, 616-17 (6th Cir. 2003) (quotation marks omitted). A "reasonable probability" has been defined by the Supreme Court as "a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

When deciding ineffective-assistance claims, courts need not address both components of the inquiry "if the defendant makes an insufficient showing on one." Id. at 697, 104 S.Ct. 2052. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id. These claims, as part of Campbell's motion to vacate his sentence under 28 U.S.C. § 2255, are reviewed de novo. Griffin, 330 F.3d at 736.

1. Ineffectiveness based upon alleged Speedy Trial Act violation

Campbell first argues that the district court erred in denying his claim that his counsel rendered ineffective assistance by not moving for a dismissal of the indictment based upon alleged violations of the Speedy Trial Act. 18 U.S.C. §§ 3161-74. The Act requires that a criminal defendant be brought to trial within 70 days after the filing of an indictment or an arraignment, whichever is later. 18 U.S.C. § 3161(c)(1). A retrial that follows a mistrial must start "within 70 days from the date the action occasioning the retrial becomes final...." 18 U.S.C. § 3161(e). If a defendant is not

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brought to trial within 70 days, taking into account excludable time periods under the Act, the district court is obligated to dismiss the indictment on the defendant's motion. 18 U.S.C. § 3162(a)(2); United States v. Jenkins, 92 F.3d 430, 438 (6th Cir. 1996). The dismissal may be either with or without prejudice. Id.

Campbell alleges the following three violations of the Speedy Trial Act: (1) 83 days elapsed between the end of his first trial and the start of his second, (2) approximately 157 days elapsed between the second mistrial and the dismissal of the second indictment, and (3) 78 days elapsed between the dismissal of the second indictment and Campbell's arraignment on the third superseding indictment. The magistrate judge's R & R concludes that even if violations of the Speedy Trial Act did occur, Campbell cannot demonstrate that he was prejudiced as required by Strickland. For the reasons that follow, we agree.

In his brief, Campbell asserts that the alleged violations of the Speedy Trial Act prejudiced him, but he provides little explanation and no authority to support his contentions. Campbell says that the prejudice "is obvious" and that "there clearly was prejudice suffered by Campbell." But he does not allege any specific prejudice, such as a witness becoming unavailable.

Under the Speedy Trial Act, courts must consider the following three factors when determining whether to dismiss an indictment with or without prejudice: "[1] the seriousness of the offense; [2] the facts and circumstances of the case which led to the dismissal; and [3] the impact of a reprosecution on the administration of [the Act] and on the administration of justice." 18 U.S.C. § 3162(a)(1). As explained in the R & R, "[e]ach of these factors would have counseled a dismissal without prejudice" in Campbell's case:

Defendant was charged with involvement [in] an extensive, serious drug distribution conspiracy, for which he was sentenced to nearly 30 years' imprisonment. As to the second factor, the delays in defendant's case were not extensive and were occasioned in part by the complexity of the procedural issues involved, including two previous hung juries and a reindictment because of an improperly constituted grand jury. Further, there is no evidence of bad faith or any attempt to take advantage of the delay on the part of the prosecution. Finally, as to the third factor, defendant does not allege that he suffered any actual prejudice as a result of the delay, and there is no allegation that the government engaged in any improper behavior which must be deterred in order to insure compliance with the Act. In these circumstances, any dismissal under the Act would have been without prejudice.

We have no basis to fault the magistrate judge's analysis. Because Campbell cannot show that he was prejudiced by his trial counsel's failure to request dismissal for the alleged violations of the Speedy Trial Act, we affirm the district court's denial of relief to Campbell on this claim.

2. Ineffectiveness based upon failure to request a downward departure


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