U.S. v. Green, 88-4557

• Citation: 882 F.2d 999
• Decision Date: 12 September 1989
• Docket Number: No. 88-4557,88-4557
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John O. GREEN a/k/a John O. Hornung, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 999

882 F.2d 999

UNITED STATES of America, Plaintiff-Appellee, v. John O. GREEN a/k/a John O. Hornung, Defendant-Appellant.

No. 88-4557

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Sept. 12, 1989.

As Amended on Denial of Rehearing Oct. 11, 1989.

John O. Green, Austin, Tex., pro se.

Richard T. Starrett, Asst. U.S. Atty., George Phillips, U.S. Atty., Jackson, Miss., for U.S.

Appeal From the United States District Court Southern District of Mississippi.

Before GEE, WILLIAMS, and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

On December 9, 1986, John O. Green pleaded guilty to one count of interstate travel to promote, manage, establish, carry on and facilitate an unlawful business enterprise involving cocaine. On January 12, 1987, he was sentenced to a term of five years imprisonment to run concurrently with another sentence imposed in the Western District of Oklahoma.

Green sought reduction of his sentence through a Fed.R.Crim.P. 35 motion, unrelated to the instant motion, which was denied by the district court and appealed to this court. Green then filed his 28 U.S.C. Sec. 2255 supplemental motion, which was also denied by the district court, and he has appealed that decision to this court.

Green contends that (1) the district court before which he pleaded guilty had no jurisdiction over his case; (2) his guilty plea was not knowing and voluntary due to ineffective assistance of counsel and violations of Rule 11; and (3) his plea should be void because the government has breached the plea agreement. We agree with the district court that none of Mr. Green's contentions have merit, and we affirm.

I. Jurisdiction

Green was first indicted on June 1, 1984, and the case was assigned to Judge William H. Barbour, Jr. On October 9, 1985 Green's attorney filed a motion to dismiss the indictment for violation of the Speedy Trial Act. Judge Barbour responded on December 11, 1985 by dismissing the case without prejudice. Green appealed the dismissal without prejudice to this court on December 18, 1985. On October 14, 1986, we dismissed the appeal for lack of jurisdiction because the dismissal without prejudice was not a final order. In the meantime, Green was reindicted on December 17, 1985 on the same three charges as in the earlier indictment and this time the case was assigned to Judge Tom S. Lee pursuant to a routine procedure of randomly assigning cases. Green filed a motion to dismiss for lack of jurisdiction on April 2, 1986. On December 9, 1986 Green pleaded guilty to Count II of the indictment and on January 12, 1987 he was sentenced to five years imprisonment. He brought this motion to vacate under 28 U.S.C. Sec. 2255, claiming, inter alia, that (1) Judge Barbour retained jurisdiction over the case, which should not have gone before Judge Lee after the second indictment, and (2) Judge Barbour's dismissal of the first indictment should not have been without prejudice so his second indictment was improper. Both of his assertions are erroneous.

Green argues initially that the court which convicted and sentenced him lacked jurisdiction over his case. He notes the original indictment in Judge Barbour's court, which was dismissed without prejudice, and the appeal from that dismissal which was dismissed for lack of jurisdiction on the ground that there was no final order in the district court. In Green's view his case was before Judge Barbour, and these events deprived Judge Lee of jurisdiction over the second indictment. The short answer to this contention is that the second indictment initiated a separate criminal proceeding, and jurisdiction over the latter did not depend on the former. Green cites us to no absolute bar against the government having two indictments pending simultaneously which both allege the same violations by the same defendant. The Double Jeopardy Clause does not provide such a bar, since jeopardy does not generally attach until a jury has been empanelled and sworn. Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct. 2156, 2162, 57 L.Ed.2d 24 (1978). Green's argument that the case should not have been assigned to Judge Lee upon reindictment, but should have remained with Judge Barbour, is without merit. A defendant has no right to have his case heard before a particular judge.

Green argues that his appeal of the dismissal without prejudice removed jurisdiction from the district court and barred further action on his case until the appeal was resolved. The filing of a timely and sufficient notice of appeal does transfer jurisdiction over matters involved in the appeal from the district court to the court of appeals, thus divesting the district court of jurisdiction to take any action with regard to the matter except in aid of the appeal. United States v. Hitchmon, 602 F.2d 689, 692 (5th Cir.1979). Notice of appeal from a non-appealable order, however, does not render void for lack of jurisdiction acts of the trial court taken in the interval between filing of the notice and dismissal of the appeal. Id., at 691. Green's appeal was from a non-appealable order, so jurisdiction did not rest in the court of appeals. Also, the actions Green complains of--his plea, conviction, and sentencing--all took place after his appeal was dismissed. For these reasons the district court did not lack jurisdiction to convict the defendant at the time of his guilty plea.

Green also contends that Judge Lee lacked jurisdiction because of the Speedy Trial Act violation which resulted in dismissal of the first indictment. Green argues that Judge Barbour should have dismissed the first indictment with prejudice, precluding subsequent indictment for the same offenses. The Speedy Trial Act of 1974 requires dismissal when indictment or trial is untimely, but leaves to the district court's discretion the decision whether to dismiss with or without prejudice. 18 U.S.C. Sec. 3162(a)(1). See United States v. Peeples, 811 F.2d 849, 850 (5th Cir.1987); United States v. Salgado-Hernandez, 790 F.2d 1265 (5th Cir.1986), cert. denied, 479 U.S. 964, 107 S.Ct. 463, 93 L.Ed.2d 408 (1986); United States v. Thomas, 705 F.2d 709, 710 (4th Cir.1983). "The Act does not create a presumption in favor of dismissal with prejudice when its time limits are violated, ... [but] the decision is entrusted to the sound discretion of the trial judge and ... no preference is accorded to either kind of dismissal." Salgado-Hernandez, 790 F.2d at 1267, citing United States v. Caparella, 716 F.2d 976, 978-80 (2d Cir.1983); United States v. Brown, 770 F.2d 241, 243 (1st Cir.1985), cert. denied, 474 U.S. 1064, 106 S.Ct. 816, 88 L.Ed.2d 789 (1986); United States v. Russo, 741 F.2d 1264, 1266-67 (11th Cir.1984).

The Act states

In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: 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 the administration of justice,

18 U.S.C.A. Sec. 3162(a)(1). The trial court has broad discretion, and this court may only review the trial court's decision for abuse of that discretion. Salgado-Hernandez, 790 F.2d at 1267. Green has not There is no indication that Judge Barbour abused his discretion in dismissing the case without prejudice. Therefore the dismissal does not stand as a bar to the subsequent disposal of the case before Judge Lee upon reindictment.

                alleged that Judge Barbour abused his discretion in dismissing without prejudice, and does not challenge his reindictment on the above-mentioned factors.  Rather, relying on legislative history, he argues that Judge Barbour was required to dismiss with prejudice unless he found "exceptional circumstances" justifying a different result.  Green's reliance on this legislative history is misplaced, however, as it relates to an earlier version of this provision which was amended to its present form during floor debates.  See United States v. Taylor, --- U.S. ----, 108 S.Ct. 2413, 2418 n. 8, 101 L.Ed.2d 297 (1988).  "The thrust of the compromise [incorporated into the Act by Amendment] was that the decision to dismiss with or without prejudice was left to the guided discretion of the district court, and that neither remedy was given priority."    Id. 108 S.Ct. at 2418
                

II. Ineffective Assistance of Counsel

Green asserts on appeal that he received ineffective assistance of counsel based upon his counsel's failure to prepare his defense, failure to file a requested notice of appeal, failure to disclose a conflict of interest, and deliberate misrepresentation which induced his guilty plea.

To prevail on a claim that he was denied his federal constitutional right to effective assistance of counsel Green would have to satisfy two requirements. First, he would have to show that his attorney's conduct fell below an objective standard of reasonableness. Second, he would have to demonstrate a reasonable probability that he was prejudiced by his attorney's unprofessional errors. Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S.Ct. 2052, 2057, 80 L.Ed.2d 674 (1984). In the context of a guilty plea, " '[p]rejudice' occurs if 'there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.' " United States v. Smith, 844 F.2d 203, 209 (5th Cir.1988) (quoting Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985)). Although Green claims that his guilty plea was induced by the unprofessional conduct of his counsel, we are unpersuaded.

(A) Green first asserts that his retained counsel, Carl Hughes, did not adequately prepare for trial. The district court concluded that in terms of preparedness Hughes' representation did not fall below an objective standard of reasonableness, and we agree. Hughes had represented Green in...