United States v. Rushin

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS June 28, 2011
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 10-3025
SAMUEL R. RUSHIN,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. Nos. 6:04-CR-10207-JTM-2 and 6:08-CV-01167-JTM)

Jill M. Wichlens, Assistant Federal Public Defender (Raymond P. Moore, Federal
Public Defender, with her on the brief), Denver, Colorado, for Defendant-Appellant.

David M. Lind, Assistant United States Attorney (Barry R. Grissom, United States
Attorney, with him on the brief), Wichita, Kansas, for Plaintiff-Appellee.

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

*
Honorable William P. Johnson, United States District Judge for the District
of New Mexico, sitting by designation.
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 F. App’x.

705 (10th Cir. 2007) (unpublished).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Kan. 2009) (unpublished).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,

1
We previously granted Defendant a Certificate of Appealability on this claim
pursuant to 28 U.S.C. § 2253(c)(1)(B). See United States v. Rushin, No. 10-3025,
Order (10th Cir., August 2, 2010) (per Holmes, J.) (unpublished).

2
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 (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 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.

3
United States, 547 U.S. 489, 497 (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.

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

2
Before the 2008 amendments to the STA, subsection (h)(7) appeared as
subsection (h)(8). See Pub. L. No. 110-406, § 13, 122 Stat. 4291, 4294 (2008). Post
amendment, the subsection remained substantively unchanged.
3
Subsection (i) requires the court to consider “[w]hether the failure to grant
such a continuance in the proceeding would be likely to make a continuation of such
proceeding impossible, or result in a miscarriage of justice.” Subsection (ii) asks
“[w]hether the case is so unusual or so complex . . . that it is unreasonable to expect
adequate preparation for pretrial proceedings or for the trial itself within the time
limits established.” Subsection (iv) applies to cases falling outside subsection (ii)
and asks “[w]hether the failure to grant such a continuance . . . would deny the
defendant reasonable time to obtain counsel, would unreasonably deny [any party]
the . . . continuity of counsel, or would deny counsel . . . the reasonable time
necessary for effective preparation, taking into account the exercise of due
diligence.”

4
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).

5
Zedner, 547 U.S. at 506–07 (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. 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.

4
In the Tenth Circuit, we have repeatedly opined, most recently in United
States v. Larson, 627 F.3d 1198, 1204 (10th Cir. 2010), that findings belatedly
placed on the record will support a previous “end-of-justice” continuance under
subsection (h)(7) only where the record provides some indication that the court
balanced the relevant interests prior to or contemporaneous with the grant of the
continuance.
5
Section 3162(a)(2) further provides that “[f]ailure of the defendant to move
for dismissal prior to trial or entry of a plea of guilty or nolo contendere shall
constitute a waiver of the right to dismissal under this section.”

6
 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 F.

App’x. 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

7
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, Defendant made an oral motion for

a continuance of the October 19 trial date. On October 7, the district court granted

Defendant’s first motion for a continuance absent any apparent objection by the

Government, and continued the trial until November 30, 2004. The court’s sole

finding was that the period of delay “was excludable time as provided for in 18

U.S.C. § 3161(h)([7]) in that the ends of justice served by granting the continuance

outweigh the best interest of the public and the defendant[] in a speedy trial.”

Defendant next filed a written motion to continue on November 16. On November

29, the district court granted Defendant’s second motion for a continuance without

objection, and again purportedly continued the trial pursuant to subsection (h)(7).

In addition to an “ends-of-justice” finding, the court added a second finding to its

second order of continuance, namely, “that counsel for [Defendant] states that

additional time is needed to confer with [Defendant] and conduct investigation in the

case to prepare for trial or other disposition of this matter.” The court rescheduled

trial for January 11, 2005. Then, on January 6, the court, sua sponte and without

prior notice or hearing, ordered the trial continued a third time, until February 23,

2005. The court provided no record explanation for its action.

Meanwhile, Defendant, on February 11, 2005, made his initial appearance on

a superceding indictment charging him in thirteen counts with criminal misconduct

8
related to all six robberies. Assuming the superceding indictment reset the STA’s

time clock at least as to the charges arising out of the five robberies uncharged in the

original indictment, the new clock originally was set to expire on April 22, 2005. 6

On the same day, February 11, Defendant moved a third time to continue the trial

still set at this point for February 23. On February 21, the district court granted the

motion once again absent objection, and rescheduled the trial, this time for April 5,

2005. The court’s findings contained in its fourth order of continuance were

identical to the findings contained in its second order. The saga continued (no pun

intended) when on the day set for trial, April 5, Defendant’s counsel filed a motion

for a competency evaluation of his client. The court granted the motion the same day

and vacated the trial setting indefinitely. 7 Following receipt of Defendant’s

psychiatric evaluation report, the court held a competency hearing on October 11,

2005 and found Defendant competent to stand trial. On October 18, the Government

filed a motion, to which Defendant did not object, to reschedule the trial for

November 29, 2005. On October 19, the court, “being satisfied that good cause

6
The rule appears to be that “the filing of a superceding indictment does not
reset the speedy-trial clock for offenses charged, or required to be joined with those
charged, in the original indictment.” United States v. Young, 528 F.3d 1294, 1296
(11th Cir. 2008) (citing cases); see United States v. Mora, 135 F.3d 1351, 1355 (10th
Cir. 1998) (holding a superceding indictment “which added the charge of ‘with intent
to distribute’ to the original charge of possession . . . did not reset the speedy trial
clock”).
7
The STA excludes a “delay resulting from any proceeding, including any
examinations, to determine the mental competency . . . of the defendant.” 18 U.S.C.
§ 3161(h)(1)(A).

9
exists” continued Defendant’s trial to November 29. Again, the court simply found

“that the ends of justice served by taking such action outweigh the best interest of

the public and the defendant[] in a speedy trial.” Defendant’s jury trial commenced

on November 29 and concluded on December 7, 2005.

III.

In his § 2255 motion for post-conviction relief based on ineffective assistance

of counsel, Defendant relied on the Supreme Court’s decision in Zedner to assert that

his right to a speedy trial as defined in the STA was violated because the district

court failed to make adequate on-the-record findings to support its numerous “ends-

of-justice” continuances pursuant to § 3161(h)(7). The Government did not disagree

with Defendant’s contention that under Zedner’s rationale the district court’s

findings related to its various “ends-of-justice” continuances were insufficient. Nor

did the Government dispute Defendant’s claim that his trial commenced outside the

STA’s time limits even excluding the period during which Defendant’s competency

was at issue. 8 Instead, the Government pointed out that the Supreme Court decided

Zedner six months after Defendant’s conviction, and that prior thereto, both counsel

and the court were following “the legal and customary practice regarding the

8
The periods during which the various motions to continue were pending are
also excludable. See 18 U.S.C. §3161(h)(1)(D) (excluding from the time in which
a trial must commence “delay resulting from any pretrial motion, from the filing of
the motion through the . . . prompt disposition of[] such motion”); United States v.
Tinklenberg, 131 S. Ct. 2007, 2010–16 (2011) (holding subsection (h)(1)(D) stops
the STA clock upon the filing of a pretrial motion regardless of whether the motion
has any impact on the trial setting).

10
different continuances.” Rushin, 2009 WL 5171781, at *3. The district court agreed

with the Government and denied Defendant’s motion:

Rushin was convicted on December 7, 2005 . . . , but Zedner was not
decided until June 5, 2006. Rushin’s counsel was not ineffective for
failing to anticipate a future development in the law. See United States
v. Harms, 371 F.3d 1208, 1212 (10th Cir. 2004). Rushin has not
demonstrated that his attorney’s performance fell below an objective
standard of reasonableness. Strickland analysis utilizes a two prong
test, and since Rushin did not meet the first prong, the court finds it
unnecessary to address the second prong.

Id.

For reasons painfully apparent from our discussion of the controlling case law

construing the STA, the Government on appeal abandons any claim that Zedner

was a “future development in the law.” Since at least our 1998 decision in Gonzales

and arguably as early as our 1989 decision in Doran, we have insisted that a district

court granting an “ends-of-justice” continuance under the STA articulate in more

than a cursory fashion its reasons for doing so. Thus, the question on appeal is not

whether the STA was violated in this case, for no one disputes that it was. 9 Rather

9
By way of comparison with the district court’s findings in this case, the
district court in Gonzales entered the following written order purporting to grant an
“ends-of-justice” continuance:

The time period from August 12, 1996, up to and including the new trial
date of August 26, 1996, at 9:00 a.m., is hereby excluded from any
calculation required by that act known as the Speedy Trial Act, . . .
because the interests of justice outweigh the interest of the public and
the defendant in a speedy trial. This is based upon the finding that
counsel for the United States would be denied the reasonable and
necessary time to prepare for trial, taking into account due diligence,
(continued...)

11
the question is whether the performance of defense counsel was constitutionally

ineffective when, notwithstanding the STA violation, he failed to move to dismiss

the superceding indictment prior to trial.

A.

Consistent with the Strickland standard, we first address the performance of

Defendant’s trial counsel under an objective standard of reasonableness. Just this

term, the Supreme Court reiterated that “[a] court considering a claim of ineffective

assistance must apply a ‘strong presumption’ that counsel’s representation was

within a ‘wide range’ of reasonable professional assistance.” Harrington v. Richter,

131 S. Ct. 770, 787 (2011) (emphasis added) (quoting Strickland, 466 U.S. at 689).

Recognizing the “temptation for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence,” . . . counsel should be
“strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional
judgment.” To overcome that presumption, a defendant must show that
counsel failed to act “reasonably considering all the circumstances.”

Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011) (quoting Strickland, 466 U.S. at

688, 690). In other words, “[t]he challenger’s burden is to show ‘that counsel made

errors so serious that counsel was not functioning as the ‘counsel’ guaranteed

9
(...continued)
and risks which cause a potential miscarriage of justice and risk the
continuity of counsel for the United States.

Gonzales, 137 F.3d at 1434 (ellipses in original). We held these findings insufficient
to toll the running of the STA’s time clock, and discussed in detail our reasons for
concluding that the district court “failed to consider all of the necessary factors
outlined in § 3161(h)([7])(B) prior to granting the continuance.” Id. at 1434–35.

12
the defendant by the Sixth Amendment.’” Harrington, 131 S. Ct. at 787 (emphasis

added) (quoting Strickland, 466 U.S. at 687).

In support of his claim that his trial counsel’s performance was deficient,

Defendant posits “there was no downside to moving to dismiss the indictment.”

Defendant states that in the worst case scenario the district court would have

dismissed the charges without prejudice, in effect requiring the Government to seek

a new indictment. 10 Defendant elaborates as follows: If his defense counsel had

moved to dismiss the indictment, the district court “may or may not” have dismissed

the indictment without prejudice. If the district court had dismissed the indictment

without prejudice, the grand jury “may or may not” have reindicted him on the same

charges. If the grand jury had reindicted him on the same charges, he “may or may

not” have gone to trial on those charges.

We categorically reject any suggestion that because Defendant now appears

to have had “nothing to lose,” his trial attorney necessarily acted unreasonably

within the meaning of the Sixth Amendment by failing to file a motion to dismiss.

Rarely in hindsight would a defendant – especially one who stands convicted of

serious offenses and sits imprisoned for a substantial number of years – appear to

have had something to lose by filing such a motion. Yet not every decision on

10
This assumes, of course, that any attempt on the part of the district court
to enter its findings in support of its § 3161(h)(7) continuances on the record at the
time of Defendant’s motion to dismiss would have been futile. See supra at 5–6 &
n.4. This is an assumption to which the Government does not object and on which
we express no opinion.

13
the part of defense counsel to forego filing a motion to dismiss upon an apparent

violation of the STA is suspect under Strickland’s first prong. Unlike a panel of

federal appellate judges, defense counsel “observe[s] the relevant proceedings,

kn[ows] of materials outside the record, and interact[s] with the client, with opposing

counsel, and with the [trial] judge. It is ‘all too tempting’ to ‘second-guess counsel’s

assistance after conviction or adverse sentence.’” Harrington, 131 S. Ct. at 788

(quoting Strickland, 466 U.S. at 689). Defendant “may or may not” have had

something to lose by filing a motion to dismiss. Defendant “may or may not” have

lost the progress that his counsel had made in plea negotiations with the Government

to that point. Defendant “may or may not” have lost the favor of a district court that

had granted him multiple continuances to date. Because possibilities without proof

are endless, they are no measure of counsel’s performance. Defendant does not carry

his burden to show his defense counsel’s performance was constitutionally deficient

simply by telling us that “there was no downside to moving to dismiss.”

In formulating a defense strategy, counsel is entitled to “balance limited

resources in accord with effective trial tactics and strategies,” or, in other words, to

critically undertake a cost/benefit analysis of any proposed course of action. Id. at

789 (emphasis added). Rarely, if ever, can we acquire from an appellate record a

complete understanding of all the intangible factors that influenced a defense

counsel’s decision not to undertake a particular course of action. What we can say

based on the record circumstances of this particular case, however, is that a

14
reasonable attorney in the sound exercise of his or her professional judgment

arguably might have decided to forgo the filing of a motion to dismiss the indictment

as largely ineffective, an imprudent use of limited resources, or even unwarranted

gamesmanship. See Zedner, 547 U.S. at 502 (recognizing a defendant might “forgo

moving to dismiss”). Let us explain why.

A district court does not have unfettered discretion to dismiss an indictment

with prejudice for a violation of the STA. See Abdush-Shakur, 465 F.3d at 462.

Whether a district court has abused its discretion “depends, of course, on the bounds

of that discretion and the principles that guide its exercise.” United States v. Taylor,

487 U.S. 326, 336 (1988). Here, the three nonexclusive factors set forth in

§ 3162(a)(2) bound the district court’s discretion in such a manner that we may say,

with a degree of confidence, that the district court would have abused its discretion

in dismissing the indictment other than without prejudice. The charges against

Defendant were quite serious – six robberies with a firearm over the course of six

days resulting in thirteen counts of criminal misconduct. By our calculation,

Defendant’s mandatory minimum sentence was 132 years imprisonment. See

Rushin, 2009 WL 5171781, at *1. Furthermore, the only significant period of

nonexcludable delay in which Defendant was not complicit was the 31 days, more

or less, resulting from the district court’s sua sponte continuance on January 6, 2005.

See Saltzman, 984 F.2d at 1092–95 (holding a seven-month delay insufficient, in

itself, to warrant a dismissal with prejudice). Defendant meanwhile moved for three

15
continuances, resulting in 127 days, more or less, of nonexcludable delay, and

agreed to another continuance, resulting in 41 additional days, more or less, of

nonexcludable delay. See Artez, 290 F. App’x. at 207 (reasoning the Government

should not be penalized for “delays in which the defendant was complicit.”). As to

the impact of counsel’s performance on the administration of justice, Defendant

asserts that if his trial attorney had filed a motion to dismiss on the basis of a STA

violation, the necessary grant of the motion likely would have improved the strained

relationship between counsel and his client, and may have resulted in a plea deal and

substantially reduced sentence for the latter. But absent some testimony or offer of

proof to that effect, such abstract claims do not persuade us.

To be sure, we do not discount the possibility that some criminal defense

attorneys may have moved to dismiss the indictment in this case. The question under

Strickland’s performance prong, however, is not whether counsel’s representation

“deviated from best practices or most common custom.” Harrington, 131 S. Ct. at

788. Instead, the question is whether defense counsel’s failure to file a motion to

dismiss, if error at all, was an error “‘so serious that counsel was not functioning as

the ‘counsel’ guaranteed the defendant by the Sixth Amendment.’” Id. (quoting

Strickland, 466 U.S. at 687). Surely something was to be gained, however slight, by

filing such motion because the Supreme Court has said so: “Dismissal without

prejudice is not a toothless sanction: it forces the Government to obtain a new

indictment if it decides to reprosecute.” Taylor, 487 U.S. at 342. This possibility

16
alone encourages Government compliance with the STA, thus promoting the STA’s

sound administration and furthering the public interest. See Zedner, 547 U.S. at 499.

A defendant too “may derive some benefit” from a dismissal without prejudice: “For

example, the time and energy that the prosecution must expend in connection with

obtaining a new indictment may be time and energy that the prosecution cannot

devote to the preparation of its case.” Id. at 503 n.5 (emphasis added). But given

the dearth of evidence Defendant presents to support his claim of deficient

performance, we are loathe to conclude that the Sixth Amendment required his

defense counsel to avail him of the indeterminate benefit of a motion to dismiss and

place on the Government the corresponding burden to reindict.

When counsel focuses on some issues to the exclusion of others, there
is a strong presumption that he did so for tactical reasons rather than
through sheer neglect. . . . That presumption has particular force where
[as here] a petitioner bases his ineffective-assistance claim solely on the
trial record, creating a situation in which a court may have no way of
knowing whether a seemingly unusual or misguided action by counsel
had a sound strategic motive.

Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (per curiam) (internal quotations

omitted). Defendant simply has not overcome the “strong presumption” that his

defense counsel performed adequately under Strickland’s first prong because

Defendant has not shown his defense counsel’s performance, under the circumstances

presented, “fell below an objective standard of reasonableness” as measured by

“prevailing professional norms.” Strickland, 466 U.S. at 688.

17
 B.

Because Defendant has not proven his trial counsel’s performance was

constitutionally deficient as required by Strickland’s first component, we need

not address Strickland’s second component which requires us to ask whether

counsel’s performance prejudiced Defendant. See id. at 697. We do dispel any

notion, however, that Defendant was somehow prejudiced because he was tried and

convicted on an indictment that should have been dismissed without prejudice.

Defendant argues that if the pending indictment against him had been dismissed, the

result of the proceeding against him necessarily would have been different,

notwithstanding any subsequent course of events. Defendant grounds his argument

in the Court’s oft-repeated words from Strickland that to establish prejudice, “a

challenger must demonstrate ‘a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.’”

Harrington, 131 S. Ct. at 787 (quoting Strickland, 466 U.S. at 694).

Unlike Defendant, we do not confine our reading of the term “proceeding” in

the foregoing excerpt to those court processes related to a particular indictment.

Prejudice is the touchstone of Strickland’s second component. The standard measure

of prejudice in the context of an ineffective assistance of counsel claim is the effect

an attorney’s deficient performance had on the result or outcome. In no meaningful

sense has Defendant established a reasonable probability that the result or outcome

of the “proceeding” to which he was subjected would have differed if the indictment

18
on which he stands convicted had been dismissed without prejudice. Rather, in all

likelihood the Government would have reindicted Defendant, placing him in the

same posture as before the dismissal. See Zedner, 547 U.S. at 499 (recognizing that

where charges are dismissed for a violation of the STA without prejudice “the

prosecutor may of course seek–and in the great majority of cases will be able to

obtain–a new indictment”).

“A reasonable probability is a probability sufficient to undermine confidence

in the outcome.” 11 Strickland, 466 U.S. at 694. The reasonable probability standard

“asks whether it is ‘reasonably likely’ the result would have been different.”

Harrington, 131 S. Ct. at 792 (quoting Strickland, 466 U.S. at 696). Only where

“[t]he likelihood of a different result [is] substantial, not just conceivable,” can we

say confidence in the outcome is undermined. Id. One surely can conceive of a

different outcome here if Defendant’s trial counsel had moved to dismiss the

indictment based on a violation of the STA. The end result “may or may not” have

been different. But Defendant in no sense has proven the substantial likelihood of

a result different from that he now faces. 12

11
Strickland’s “reasonable probability” standard is not a preponderance of the
evidence standard, although the difference between the two standards is slight. The
former “does not require a showing that counsel’s actions ‘more likely than not
altered the outcome,’ but the difference between Strickland’s prejudice standard and
a more-probable-than-not standard is slight and matters ‘only in the rarest case.’”
Harrington, 131 S. Ct. at 792 (quoting Strickland, 466 U.S. at 693).
12
At least four of our sister circuits have held that where an indictment would
have been dismissed without prejudice, a defendant could not show prejudice based
(continued...)

19
 AFFIRMED.

12
(...continued)
upon trial counsel’s failure to seek dismissal under the STA. Chambliss v. United
States, 384 F. App’x. 897, 899 (11th Cir. 2010) (per curiam) (unpublished); United
States v. Thomas, 305 F. App’x. 960, 964 (4th Cir. 2009) (unpublished); United
States v. Fowers, 131 F. App’x. 5, 6–7 (3d Cir. 2005) (unpublished); Campbell v.
United States, 364 F.3d 727, 730–31 (6th Cir. 2004). The words of the Eleventh
Circuit are perhaps apropos in this case:

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. . . . Because the outcome of the proceedings would not
have been different had counsel moved to dismiss the indictment,
petitioner has not shown prejudice.

Chambliss, 384 F. App’x. at 899.

20
10-3025, United States v. Rushin

HOLMES, Circuit Judge, concurring.

Although I concur in the outcome, I write separately because I believe this

matter should have been resolved under the second prong of Strickland, rather

than the first.

As the majority opinion explains, to make out a claim of ineffective

assistance of counsel, Mr. Rushin “must show that (1) his counsel’s performance

was constitutionally deficient, and (2) counsel’s deficient performance was

prejudicial.” United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995) (citing

Strickland v. Washington, 466 U.S. 668, 687 (1984)). In applying the two-part

Strickland test, however, it is well-settled that we “may address the performance

and prejudice components in any order, [and] need not address both if [petitioner]

fails to make a sufficient showing of one.” Boltz v. Mullin, 415 F.3d 1215, 1222

(10th Cir. 2005) (second alteration in original) (quoting Cooks v. Ward, 165 F.3d

1283, 1292–93 (10th Cir. 1998)) (internal quotation marks omitted). In other

words, a reviewing court may, if it appears to be the more sensible course of

action, “proceed directly to the prejudice prong of the Strickland analysis.”

United States v. Gonzalez, 596 F.3d 1228, 1233 (10th Cir.), cert. denied, 131 S.

Ct. 172 (2010).

Contrary to the majority’s conclusion, I am not wholly persuaded that trial

counsel’s performance may be considered reasonable under the circumstances. It

is at least arguable, in my opinion, that counsel’s failure to file a motion to
dismiss “fell below an objective standard of reasonableness.” Strickland, 466

U.S. at 688. Therefore, I think it more prudent to leave the performance question

unanswered and to resolve this case under the prejudice prong.

I. Deficient Performance

In evaluating whether counsel’s performance was deficient, we often “look

to the merits of the omitted issue.” Miller v. Mullin, 354 F.3d 1288, 1298 (10th

Cir. 2004) (quoting Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003))

(internal quotation marks omitted). If the motion underlying the

ineffective-assistance claim—in this case, a motion to dismiss under the Speedy

Trial Act (“STA”), 18 U.S.C. §§ 3161–74—would have been meritless, then

counsel’s performance cannot be said to be deficient because “[c]ounsel is not

required by the Sixth Amendment to file meritless motions.” United States v.

Gibson, 55 F.3d 173, 179 (5th Cir. 1995).

As the majority notes, the government concedes that the STA was violated

in this case, and a violation of the Act results in mandatory dismissal of the

indictment. Accordingly, a motion filed by Mr. Rushin’s counsel would not have

been meritless because it would have resulted in dismissal of the charges filed

against Mr. Rushin, either with or without prejudice. See 18 U.S.C. § 3162(a)(2)

(providing that “[i]f a defendant is not brought to trial within the [seventy-day]

time limit . . . , the information or indictment shall be dismissed on motion of the

defendant . . . with or without prejudice” (emphasis added)). Therefore, counsel’s

2
failure to file such a speedy-trial motion at least arguably falls below an objective

standard of reasonableness. See, e.g., United States v. Palomba, 31 F.3d 1456,

1464 (9th Cir. 1994) (concluding that defense counsel’s performance was

deficient when he failed to file a meritorious motion to dismiss charges under

§ 3161(c) of the STA).

Furthermore, it is difficult to justify counsel’s omission as “sound trial

strategy,” Welch v. Workman, 639 F.3d 980, 1010 (10th Cir. 2010) (quoting

Strickland, 466 U.S. at 689), as there was no apparent benefit to be gained from

failing to move for dismissal. On the contrary, there was benefit to lose, because

failing to file the motion would deprive Mr. Rushin of a dismissal. Even had the

dismissal been without prejudice, there is still the possibility that Mr. Rushin

would have received some benefit. “Dismissal without prejudice is not a

toothless sanction: it forces the Government to obtain a new indictment if it

decides to reprosecute, and it exposes the prosecution to dismissal on statute of

limitations grounds.” United States v. Taylor, 487 U.S. 326, 342 (1988). “Given

the burdens borne by the prosecution and the effect of delay on the Government’s

ability to meet those burdens, substantial delay well may make reprosecution,

even if permitted, unlikely.” Id. More recently, the Supreme Court noted that

“even if a case is dismissed without prejudice, a defendant may derive some

benefit. For example, the time and energy that the prosecution must expend in

connection with obtaining a new indictment may be time and energy that the

3
prosecution cannot devote to the preparation of its case.” Zedner v. United

States, 547 U.S. 489, 503 n.5 (2006). Accordingly, because it is at least debatable

whether trial counsel provided constitutionally deficient assistance when counsel

failed to move to dismiss the indictment under the STA, and because it is clear

that Mr. Rushin cannot satisfy the prejudice (i.e., second) prong of Strickland, as

discussed infra, I find it more prudent to refrain from passing judgment under the

performance (i.e., first) prong of Strickland.

II. Prejudice

Mr. Rushin’s ineffective-assistance claim definitively fails under the

second prong of Strickland because he cannot demonstrate that he was

sufficiently prejudiced by counsel’s failure to seek dismissal. In order to satisfy

the “prejudice” prong, Mr. Rushin “must show that there is a reasonable

probability that, but for counsel’s [failure to move for dismissal], the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694.

Mr. Rushin argues that the result of the proceeding would have been

different “[b]ecause the district court would have had no choice but to dismiss,

[and] Mr. Rushin would neither have pled to, nor [have] been convicted on, the

indictment that is the subject of this proceeding.” Aplt.’s Supp. Opening Br. at

35. That is, he argues that regardless of whether the ultimate result would have

been the same (i.e., irrespective of whether he would have been re-indicted and

re-convicted), the result as to the particular indictment at issue would have been

4
different simply because it would have been dismissed. However, I fully agree

with the majority opinion’s conclusion that “we do not confine our reading of the

term ‘proceeding’ in [this context] to those court processes related to a particular

indictment.” Majority Op. at 18 (emphasis added). In line with the majority, I

agree that we look to whether there is a reasonable probability that the ultimate

result of the criminal proceedings against Mr. Rushin would have been different.

Mr. Rushin also advances another reason for why events could have

“unfolded” differently had his counsel filed a speedy-trial motion: “Mr. Rushin

could, for example, have gained newfound confidence in counsel’s legal acumen

and decided to heed counsel’s advice and accept a plea bargain.” Aplt.’s Reply

Br. at 4–5 (emphasis added). Anything is possible, I suppose. However, as the

majority notes, Mr. Rushin has not supported such “abstract claims” with

anything passing as proof. Majority Op. at 16 (noting that “absent some

testimony or offer of proof . . . such abstract claims do not persuade us”).

Accordingly, these claims cannot warrant a conclusion of prejudice.

Significantly, courts that have assessed whether counsel rendered

ineffective assistance by failing to move to dismiss under the STA have indicated

that a defendant cannot establish prejudice simply by showing that the STA was

violated or by showing that the district court likely would have dismissed without

prejudice. More specifically, as those courts have indicated, in order to satisfy

Strickland’s second prong in this context, Mr. Rushin must show that the

5
government would have been precluded from refiling the charges, either because

the dismissal would have been with prejudice or because the applicable statute-of-

limitations period would have elapsed. See Campbell v. United States, 364 F.3d

727, 730–31 (6th Cir. 2004) (holding that petitioner failed to demonstrate

prejudice under Strickland because he had not demonstrated that the STA

violation would have led to a dismissal with prejudice); Harvey v. United States,

850 F.2d 388, 402 (8th Cir. 1988) (finding no prejudice where defendants

“concede[d] . . . that the only advantage of such a motion would have been that it

would have forced the government to reindict them”); see also United States v.

Sallis, 404 F. App’x 331, 333 (10th Cir. 2010) (requiring a showing, under the

second prong of Strickland, that “the government would have been precluded

from refiling [the charges], either because the district court would have dismissed

them with prejudice under 18 U.S.C. § 3162(a)(1) or because of a statutory bar to

their refiling”).

A. Dismissal With Prejudice

Mr. Rushin has not shown that the district court likely would have

dismissed with prejudice. As stated above, if the STA is violated, the trial court

is statutorily required to dismiss the case. 18 U.S.C. § 3162(a)(1). Although

“dismissal of the indictment is mandatory, the district court retains discretion to

determine whether the indictment is dismissed with or without prejudice.” United

States v. Cano-Silva, 402 F.3d 1031, 1034 (10th Cir. 2005). We have held that

6
“[t]he fact that a violation [of the STA] has taken place is not alone sufficient for

the application of the more severe sanction of dismissal with prejudice, which

should be reserved for more egregious violations.” Id. at 1035. In determining

whether to dismiss the case with or without prejudice, § 3162(a)(2) of the STA

requires the district court to “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 on the administration of justice.” United States

v. Abdush-Shakur, 465 F.3d 458, 462 (10th Cir. 2006) (quoting 18 U.S.C.

§ 3162(a)(2)). “Prejudice to the defendant is among the ‘other’ factors the text of

§ 3162 directs the district court to consider.” Id. (citing Taylor, 487 U.S. at 334).

Mr. Rushin was charged with committing multiple serious offenses. The

charges against him included six counts of interfering with commerce by robbery

in violation of the Hobbs Act, one count of brandishing a firearm during a

robbery, one count of being a felon in possession of a firearm, and five counts of

carrying a firearm during a crime of violence. We have previously indicated that

charges of this precise nature are “extremely serious,” United States v. Jones, 213

F.3d 1253, 1255 (10th Cir. 2000), and when “the court determines the offense

committed by the defendant is serious, this factor weighs in favor of dismissing

without prejudice,” United States v. Saltzman, 984 F.2d 1087, 1092–93 (10th Cir.

1993). Accordingly, the first factor weighs in favor of dismissal without

7
prejudice here.

The facts and circumstances of the case also weigh in favor of dismissal

without prejudice. In evaluating the “facts and circumstances leading to the

dismissal, the court . . . focus[es] ‘on the culpability of the delay-producing

conduct.’” Id. at 1093 (quoting United States v. Hastings, 847 F.2d 920, 925 (1st

Cir. 1988)). “[W]e have explained that where the delay in bringing the case to

trial is the result of intentional dilatory conduct, or a pattern of neglect on the part

of the Government, dismissal with prejudice is the appropriate remedy.” United

States v. Williams, 576 F.3d 1149, 1158 (10th Cir. 2009), cert. denied, 130 S. Ct.

1307 (2010). In this instance, however, there is no evidence that the government

acted in bad faith or exhibited a pattern of neglectful or dilatory behavior, nor

does Mr. Rushin assert that any such evidence exists.

Whether the defendant was “partially responsible for the delay” should also

be taken into consideration. Id. In this instance, Mr. Rushin was undoubtedly

responsible for a good portion of the delay in that he requested three of the

continuances and acquiesced to the others. Furthermore, “a defendant that lets

the time run without asserting his rights under the Act has less of a claim to a

dismissal with prejudice than a defendant who makes a timely assertion, but is

unheeded.” Jones, 213 F.3d at 1257. Mr. Rushin never asserted his rights under

the Act before the trial court—either personally or through counsel. In light of

the foregoing, this second factor weighs in favor of dismissal without prejudice in

8
this case.

In evaluating the third factor, “whether a dismissal with or without

prejudice serves the administration of the Speedy Trial Act and of justice, a court

should consider, among other factors, whether the delay caused by the

Government was intentional.” Williams, 576 F.3d at 1159. As noted, Mr. Rushin

does not assert that the government acted in bad faith or engaged in intentional

dilatory behavior, so this factor also weighs in favor of dismissing the indictment

without prejudice.

As for the additional factor of prejudice to the defendant, Mr. Rushin has

not shown that he was prejudiced by the delay. “[T]he defendant has a burden

under the [STA] to show specific prejudice other than that occasioned by the

original filing.” Saltzman, 984 F.2d at 1094. “[T]he fact [that] the defendant was

subsequently found guilty does not qualify as the type of prejudice relevant to the

analysis under § 3162.” Abdush-Shakur, 465 F.3d at 464. Where a defendant

shows, due to the passage of time, that he has lost a crucial witness or that his

ability to present his defense at trial has otherwise been impaired, a court would

be more likely to find prejudice. See, e.g., id. (listing loss of a crucial witness as

a potential form of prejudice). However, Mr. Rushin has made no showing

concerning lost witnesses or harm to his defense.

To be sure, Mr. Rushin was incarcerated during the period of unauthorized

delay and presumably experienced the typical burdens associated with being

9
housed in a penal setting. However, this is not enough to warrant a dismissal

with prejudice, especially in light of the fact that the other factors weigh in favor

of dismissal without prejudice. See Saltzman, 984 F.2d at 1094 (“[P]rejudice to

the defendant should not be the dispositive factor.”). We have held that a delay

of as long as 414 non-excludable days—which is undeniably a greater delay than

is present in this case—did not warrant dismissal with prejudice when the other

factors weighed in favor of dismissal without prejudice. See Jones, 213 F.3d at

1258. Mr. Rushin has not shown that he was prejudiced by the delay.

Accordingly, Mr. Rushin has not demonstrated a reasonable probability that

the district court would have dismissed the indictment with prejudice.

B. Statute of Limitations

Furthermore, there is no indication in the record that the government

otherwise would have been barred from re-indicting Mr. Rushin. In particular,

the record does not indicate that the statute of limitations would have barred any

subsequent prosecution of Mr. Rushin. In his briefing, Mr. Rushin did not make

such an assertion. Indeed, he appeared to concede that he could have been re-

prosecuted had the court dismissed the indictment without prejudice. See Aplt.’s

Supp. Opening Br. at 33 (noting that “[t]he worst that could have happened [in

this case] is the district court’s dismissing of the charges without prejudice,

leaving the government free to attempt to obtain a new indictment”). At oral

argument, moreover, both Mr. Rushin and the government expressed the belief

10
that Mr. Rushin could have been re-prosecuted.

In sum, because Mr. Rushin cannot establish that the government would

have been precluded from refiling the charges—either because the dismissal

would have been with prejudice or because the applicable statute-of-limitations

period would have expired—he cannot satisfy the second, prejudice prong of

Strickland. His challenge therefore must fail.

Although I agree with the majority’s ultimate determination that Mr.

Rushin cannot satisfy Strickland, it is Strickland’s second prong, rather than its

first, that I believe should dictate this outcome. Because Mr. Rushin so clearly

fails to demonstrate prejudice, I do not believe it is necessary or prudent to

definitively rule on the performance prong.

11