Gregory Shiver v. USA

Filing

Opinion issued by court as to Appellant Gregory Shiver. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

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Date Filed: 07/27/2015

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-11390
Non-Argument Calendar
________________________
D.C. Docket Nos. 1:11-cv-00179-MEF-CSC
1:05-cr-00256-LSC-CSC-1
GREGORY SHIVER,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(July 27, 2015)
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Gregory Shiver, a federal prisoner, appeals from the district court’s denial of
his 28 U.S.C. § 2255 motion to vacate, correct, or set aside his sentence. A
certificate of appealability (“COA”) was granted on the following issue: “whether

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Shiver received ineffective assistance of counsel when counsel failed to move to
dismiss the charge against him before the start of trial based on a violation of the
Speedy Trial Act.”

In rejecting Shiver’s ineffectiveness claim, the district court

reasoned that Shiver had failed to show he was prejudiced by counsel’s failure to
move for dismissal since Shiver failed to show that the original trial court would
have dismissed his indictment with prejudice. On appeal, Shiver argues that: (1) if
his trial counsel had moved to dismiss the indictment on speedy trial grounds, the
trial court likely would have dismissed the indictment with prejudice; (2) the
district court in his § 2255 proceedings should have given him an opportunity to
rebut a purported presumption that dismissal without prejudice would have
resulted in the government seeking his re-indictment; and (3) even dismissal
without prejudice would have been a different outcome in the “proceeding that was
pending.” After thorough review, we affirm.
A claim of ineffective assistance of counsel is a mixed question of law and
fact that we review de novo. Devine v. United States, 520 F.3d 1286, 1287 (11th
Cir. 2008). Under Strickland v. Washington, 466 U.S. 668 (1984), a movant
demonstrates ineffective assistance of counsel by showing that (1) counsel’s
representation fell below an objective standard of reasonableness, and (2) counsel’s
deficient performance prejudiced the defendant. Devine, 520 F.3d at 1288. Under
the first prong of Strickland, judicial scrutiny of counsel’s performance is highly
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deferential. Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000) (en
banc).

We indulge the “strong presumption” that counsel’s performance was

reasonable, and unreasonableness requires a showing that “no competent counsel
would have taken the action that [] counsel did take.” Id. at 1315 (quotation
omitted). However, an attorney’s ignorance of a point of law fundamental to the
case, combined with the failure to perform basic research on that point, is a
quintessential example of unreasonable performance under Strickland. Hinton v.
Alabama, 571 U.S. __, 134 S.Ct. 1081, 1089 (2014).
Under the prejudice prong of Strickland, the petitioner must show a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Osley v. United States, 751 F.3d 1214,
1222 (11th Cir. 2014). A reasonable probability is a probability sufficient to
undermine confidence in the outcome.

Id.

“The essence of an ineffective

assistance claim is that counsel’s unprofessional errors so upset the adversarial
balance between defense and prosecution that the trial was rendered unfair and the
verdict rendered suspect.” Kimmelman v. Morrison, 477 U.S. 365, 374 (1986). A
habeas petitioner must carry his burden on both Strickland prongs to demonstrate
ineffective assistance of counsel. Osley, 751 F.3d at 1222. We need not address
both prongs if the defendant has made an insufficient showing on one. Id.

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The Speedy Trial Act requires, absent certain exclusions, that a criminal
defendant be tried within 70 days of the indictment. 18 U.S.C. § 3161(c)(1). If the
defendant withdraws his guilty plea, he is deemed indicted on the day the order
permitting the withdrawal becomes final. Id. § 3161(i). The Act details the actions
that toll the speedy trial clock. Id. § 3161(h). A delay due to a continuance only
tolls the speedy trial clock if the district court makes a finding that the ends of
justice served by the continuance outweigh the best interests of the public and the
defendant in a speedy trial. Id. § 3161(h)(7)(A). Failure by the district court to
make the ends-of-justice finding results in the time being non-excludable. Zedner
v. United States, 547 U.S. 489, 507-08 (2006). If a defendant is not brought to trial
within the time limits prescribed by § 3161, then the indictment “shall be
dismissed” on a motion by the defendant. 18 U.S.C. § 3162(a)(2).
The district court has discretion to dismiss the indictment with prejudice or
without prejudice. United States v. Brown, 183 F.3d 1306, 1309-10 (11th Cir.
1999). There is no preference for one type of dismissal over the other. Id. at 1310.
In choosing between the two, the court should consider (1) the seriousness of the
offense, (2) the facts and circumstances that led to dismissal, and (3) the impact of
re-prosecution on the administration of the Speedy Trial Act and the administration
of justice. Id.; 18 U.S.C. § 3162(a)(2). We perform a step-by-step analysis of each
factor. United States v. Russo, 741 F.2d 1264, 1267 (11th Cir. 1984).
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Where the crime charged is serious, the court should dismiss with prejudice
“only for a correspondingly severe delay.” United States v. Williams, 314 F.3d
552, 557 (11th Cir. 2002). In Williams, we concluded that a 68-day violation in a
prosecution for serious drug crimes warranted dismissal without prejudice. Id. at
560-61. We recognized that, at some point, however, the length of the delay can
be enough, by itself, to justify dismissal with prejudice. Id. at 557.
As for the second factor -- the facts and circumstances leading to the Speedy
Trial Act violation -- we focus on “the culpability of the delay-producing conduct.”
Id. at 559 (quotation omitted). In United States v. Miranda, 835 F.2d 830 (11th
Cir. 1988), a federal criminal prosecution, a magistrate judge prepared a report and
recommendation for the district court concerning a motion to dismiss based on the
unconstitutionality of certain state and federal states. Id. at 832. Shortly thereafter,
a different district judge in related cases ordered the magistrate judge to advise the
Florida attorney general that the State could elect to participate in the case, since
the constitutionality of a state statute was at issue. Id. The magistrate judge
entered an order granting the Florida attorney general 20 days to notify the court of
its interest, or otherwise the report and recommendation would stand as the final
report by the magistrate judge. Id. The Florida attorney general did not respond,
and the case “essentially dropped out of sight” until the defendants moved to
dismiss on speedy trial grounds roughly four months later. Id. at 833. The district
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court denied the motion to dismiss, finding that it was the defendants’ burden to
notify the court of the attorney general’s failure to respond and that the case was
ripe to continue. Id. On appeal, however, we explained that the appellants should
not shoulder the entire blame, as they had no duty to “insure speediness against
themselves,” and that the government and the district court shared responsibility
for the Speedy Trial Act violation. Id. at 833-34. We concluded that it did not
need to remand for a determination of whether to dismiss with prejudice because
the record compelled dismissal without prejudice, noting that “[b]y administrative
confusion the court failed its responsibility” and the government failed its duty of
notification as well. Id. at 834. We added that “[t]he unfortunate circumstances of
[the] case point more to negligence and oversight than intentional delay.” Id.
Finally, applying the third statutory factor, “there is almost always some
tension between administration of the Act and the administration of justice.”
Williams, 314 F.3d at 559 (quotations omitted). Defendants can always argue that
the minimal sanction of dismissal without prejudice takes the teeth out of the Act’s
requirements, and the government can always argue that re-prosecution furthers the
public’s interest in bringing criminals to trial. Id. at 559-60. However, the third
factor is not necessarily neutral -- it not only allows courts to review the
seriousness of the criminal charges and the reason for the delay, but also “provides

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authority for considering such aggravating and mitigating factors as the length of
the delay and the prejudice to the defendant.” Id. at 560 (quotations omitted).
In this case, Shiver has failed to show that he was he was prejudiced under
Strickland by counsel’s failure to move for dismissal on speedy trial grounds. As
for Shiver’s claim that the trial court likely would have dismissed the indictment
without prejudice if his trial counsel had moved for dismissal, we are unpersuaded.
Indeed, both parties agree that possession of child pornography is a serious offense
-- the first factor the Speedy Trial Act directs district courts to consider in deciding
whether to dismiss with prejudice under § 3162(a)(2). Additionally, while the
delay was substantial, it was not long enough, by itself, to justify dismissal with
prejudice, especially in light of the severity of the pending charge. Turning to the
second § 3162(a)(2) factor, the facts and circumstances surrounding the delay do
not indicate that the government was at fault.

Shiver did not oppose the

government’s motion to continue; the district court ultimately made an ends-ofjustice finding for the continuance; and nothing in the record suggests that either
party sought to intentionally delay the case. Nor does the third § 3162(a)(2) factor
-- the impact of re-prosecution on the administration of the Speedy Trial Act and
the administration of justice -- weigh in Shiver’s favor. Notably, at the time,
Shiver agreed that the ends of justice would be met by a continuance. Moreover,
Shiver has not argued that the delay prejudiced the preparation of his case.
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Accordingly, a consideration of the § 3162(a)(2) factors indicates that the trial
court would have dismissed the indictment without prejudice.
We also find no basis for Shiver’s request for a remand to give him the
opportunity to rebut the “presumption” that the government would have re-indicted
him. As the record shows, Shiver did not present any evidence below to establish
that the government would not have re-indicted him given the seriousness of the
charge. Because the burden of proof was on him to show that the government
would not have re-indicted, he is incorrect in asserting that the district court
applied an impermissible presumption against him.
Finally, we disagree with Shiver that a dismissal without prejudice would
have been a different outcome in the “proceeding,” and that, had the government
re-indicted him, it would have been an entirely different “proceeding” under
Strickland. For starters, Shiver’s cited case law does not support this position.
Moreover, as we’ve explained, Shiver has not shown that a dismissal without
prejudice would have ended the criminal prosecution. Thus, we cannot conclude
that counsel’s failure to move to dismiss the indictment before trial would have
affected the ultimate outcome of the pending criminal charges against Shiver.
In short, Shiver failed to demonstrate prejudice under Strickland. Because
we need not need not address both Strickland prongs if the defendant has made an

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insufficient showing on one, we conclude that the district court did not err in
rejecting Shiver’s ineffective-assistance-of-counsel claim. 1
AFFIRMED.

1

Shiver also has requested a remand for an evidentiary hearing to determine whether
counsel acted strategically or due to ignorance of the law. However, we need not resolve the
issue of counsel’s performance in light of our conclusion that Shiver suffered no prejudice.
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