U.S. v. Rushin

Decision Date28 June 2011
Docket NumberNo. 10–3025.,10–3025.
PartiesUNITED STATES of America, Plaintiff–Appellee,v.Samuel R. RUSHIN, Defendant–Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

OPINION TEXT STARTS HERE

Jill M. Wichlens, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with her on the brief), Denver, CO, for DefendantAppellant.David M. Lind, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Wichita, KS, for PlaintiffAppellee.Before HOLMES and BALDOCK, Circuit Judges, and JOHNSON, District Judge.*BALDOCK, Circuit Judge.

Over the course of six days in August 2004, Defendant Samuel Rushin and an accomplice robbed six convenience stores in Wichita, Kansas, at gunpoint. In December 2005, a jury convicted Defendant on six counts of interference with commerce by robbery, in violation of 18 U.S.C. § 1951; five counts of carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c); one count of brandishing a firearm during a crime of violence, also in violation of § 924(c); and one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Defendant to 139 years imprisonment. We affirmed his convictions on direct appeal. United States v. Rushin, 211 Fed.Appx. 705 (10th Cir.2007) (unpublished). Now before us is Defendant's second appeal—this time from the district court's denial of his motion, pursuant to 28 U.S.C. § 2255, to vacate or set aside his sentence. United States v. Rushin, 2009 WL 5171781 (D.Kan.2009) (unpublished). Defendant claims entitlement to post-conviction relief because he ostensibly was denied his Sixth Amendment right to counsel when his trial attorney failed to seek dismissal of the indictment based on a violation of the Speedy Trial Act (STA), 18 U.S.C. §§ 3161–3174.1 Our jurisdiction arises under 28 U.S.C. § 2255(d).

In considering the denial of a § 2255 motion for post-conviction relief, we review the district court's findings of fact for clear error and its conclusions of law de novo. United States v. Orange, 447 F.3d 792, 796 (10th Cir.2006). This is consistent with our view that an ineffective assistance of counsel claim presents a mixed question of law and fact ultimately reviewable de novo. Id. But where, as here, the district court does not hold an evidentiary hearing, but rather denies the motion as a matter of law upon an uncontested trial record, our review is strictly de novo. See Boltz v. Mullin, 415 F.3d 1215, 1221–22 (10th Cir.2005). To succeed on an ineffective assistance of counsel claim under § 2255, a defendant has the twofold burden of establishing that (1) defense counsel's performance was deficient, i.e., counsel's “representation fell below an objective standard of reasonableness” as measured by “prevailing professional norms,” and (2) defendant was prejudiced thereby, i.e., “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Applying the applicable standards, we affirm, albeit for reasons different than those the district court tendered in denying Defendant's motion.

I.

To secure the accused's right to and the public's interest in the prompt resolution of pending charges, the STA requires that a criminal trial commence “within seventy days from the filing date ... of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which the charge is pending, whichever date last occurs.” 18 U.S.C. § 3161(c)(1). But because no two cases are alike and some, for a myriad of reasons, are slower to trial than others, included within the STA is “a long and detailed list of periods of delay that are excluded in computing the time within which trial must start.” Zedner v. United States, 547 U.S. 489, 497, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006). Experience suggests that the provision courts and counsel most often employ to toll the running of the STA's time clock is the “ends-of-justice” continuance provided for in § 3161(h)(7). 2 Subsection (h)(7)(A) permits a district court, sua sponte or upon motion, to continue a trial setting and exclude the delay, provided the court, after considering at a minimum the factors set forth in subsections (h)(7)(B)(i), (ii), and (iv), places on the record “either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.” 3 18 U.S.C. § 3161(h)(7)(A). “Without on-the-record findings there can be no exclusion under § 3161(h)( [7] ).” Zedner, 547 U.S. at 507, 126 S.Ct. 1976.

In United States v. Doran, 882 F.2d 1511, 1515 (10th Cir.1989), we explained that subsection (h)(7)'s “exception to the otherwise precise requirements of the [STA] was meant to be a ‘rarely used’ tool for those cases demanding more flexible treatment.” Since at least United States v. Gonzales, 137 F.3d 1431, 1434–35 (10th Cir.1998), we have insisted that where a district court grants an “ends-of-justice” continuance pursuant to § 3161(h)(7), the court articulate in some detail its reasons for doing so, lest it engender misuse of the exception. To such end, we have reasoned that [a] record consisting of only short, conclusory statements lacking in detail is insufficient.... Simply identifying an event, and adding a conclusory statement that the event requires more time for counsel to prepare, is not enough.” United States v. Toombs, 574 F.3d 1262, 1271–72 (10th Cir.2009).

Because subsection (h)(7)(A) dictates that the district court grant an “ends-of-justice” continuance only “on the basis of its findings,” the appropriate time for the court to place its findings on the record is just prior to or contemporaneously with the grant of the continuance. 18 U.S.C. § 3161(h)(7)(A). While the decision to grant a continuance must be prospective, not retrospective, we have nonetheless acknowledged that “in some circumstances a trial court may enter its ends-of-justice balancing on the record after it grants the continuance, sometimes as late as the filing of the defendant's motion to dismiss on [STA] grounds.” Doran, 882 F.2d at 1516. In Zedner, the Supreme Court explained:

Although the [STA] is clear that the findings must be made, if only in the judge's mind, before granting the continuance ... the [STA] is ambiguous on precisely when those findings must be “se[t] forth, in the record of the case.” However this ambiguity is resolved, at the very least the [STA] implies that those findings must be put on the record by the time a district court rules on a defendant's motion to dismiss under § 3162(a)(2).

Zedner, 547 U.S. at 506–07, 126 S.Ct. 1976 (quoting § 3161(h)(7)(A)). 4

In the unfortunate event that seventy days, less excludable time periods, elapse without a trial, a district court has no choice but to grant a defendant's timely-filed motion to dismiss based on a violation of the STA: “If a defendant is not brought to trial within the time limit required by section 3161(c) as extended by section 3161(h), the information or indictment shall be dismissed on motion of the defendant.” 18 U.S.C. § 3162(a)(2) (emphasis added).5 In other words, “if a judge fails to make the requisite findings regarding the need for an ends-of-justice continuance, the delay resulting from the continuance must be counted, and if as a result the trial does not begin on time, the indictment or information must be dismissed.” Zedner, 547 U.S. at 508, 126 S.Ct. 1976. Because the STA is designed in part to serve the public interest, that a defendant or his counsel is responsible for all or part of the delay “does not unwind [STA] violations.... [T]he district court and government are no less responsible under the [STA] merely because it is a defendant who requests a continuance.” Toombs, 574 F.3d at 1273.

Despite the STA's dictate, the district court may, in the sound exercise of its discretion, dismiss the charges without prejudice. In fact, [a] violation of the [STA], by itself, is not a sufficient basis for dismissal with prejudice.” United States v. Abdush–Shakur, 465 F.3d 458, 462 (10th Cir.2006). Rather,

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

18 U.S.C. § 3162(a)(2). Absent a showing of appreciable prejudice to the defendant, a district court generally should dismiss serious charges without prejudice under § 3162(a)(2) unless the delay is extended and attributable to “intentional dilatory conduct, or a pattern of neglect on the part of the Government.” United States v. Saltzman, 984 F.2d 1087, 1093 (10th Cir.1993); see United States v. Artez, 290 Fed.Appx. 203, 207 (10th Cir.2008) (unpublished) (opining that defendant's showing of “some prejudice from the delay ... was not sufficient to compel dismissal with prejudice”). A dismissal without prejudice, in turn, permits the Government to return “a new indictment ... within six calendar months of the date of the dismissal” in the event the statute of limitations has run. 18 U.S.C. § 3288.

II.

On August 27, 2004, Defendant made his initial appearance on a two-count indictment relating to one of the six robberies with which he and his cohort were ultimately charged. Absent excludable delays, the STA required that Defendant's trial begin seventy days post, or originally no later than November 5, 2004. The district court scheduled trial for October 19, 2004. From that point forward, things went awry. At an October 4 status conference, De...

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