Mark Anthony Bramlett v. United States , 405 F. App'x 363 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-16386 ELEVENTH CIRCUIT
DECEMBER 13, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket Nos. 07-90025-CV-CDL-4,
06-00004-CR-CDL-4
MARK ANTHONY BRAMLETT,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(December 13, 2010)
Before BARKETT, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Mark Anthony Bramlett, a federal prisoner, appeals the district court’s
denial of his 28 U.S.C. § 2255 motion to vacate his conviction. After review, we
affirm.
I. BACKGROUND
Bramlett filed his § 2255 motion, alleging, inter alia, that his trial counsel
was ineffective for not moving to dismiss Bramlett’s indictment under the Speedy
Trial Act, 18 U.S.C. § 3161 et seq., which requires trial within 70 days of
indictment or arraignment. Thus, we first recount the timeline in Bramlett’s case.
A. Timeline
On February 22, 2006, Bramlett was indicted on charges of (1) possessing
with intent to distribute more than 50 grams of methamphetamine, in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii), and (2) possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1). Bramlett was arraigned on
March 27, 2006. On May 18, 2006, Bramlett filed a motion to suppress evidence.
The district court conducted a hearing on the motion to suppress on August 14,
2006, and denied the motion that same day.
Jury selection in Bramlett’s trial began on Tuesday, September 5, 2006,
which was the day after Labor Day. The jury convicted Bramlett of the
methamphetamine charge, and the firearm charge was dismissed on the
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government’s motion. The district court sentenced Bramlett to 121 months’
imprisonment. Bramlett appealed his conviction, and this Court affirmed. United
States v. Bramlett, 232 F. App’x 940 (11th Cir. 2007) (unpublished).
B. Bramlett’s Motion
On December 5, 2007, Bramlett filed his § 2255 motion. The magistrate
judge held an evidentiary hearing, at which Bramlett’s trial counsel testified he did
not recall calculating the speedy trial timeframe in Bramlett’s case and was
unaware of whether the Speedy Trial Act’s requirements were violated.
The magistrate judge issued a report recommending the district court deny
Bramlett’s § 2255 motion. The magistrate judge’s report calculated that the 70-day
Speedy Trial Act period expired September 1, 2006, and therefore found that
Bramlett’s trial was commenced outside the 70-day statutory period. Nevertheless,
the report concluded that, under the circumstances, Bramlett could not show that
his counsel’s failure to move to dismiss the indictment on speedy trial grounds (1)
was constitutionally deficient performance, or (2) prejudiced Bramlett.
The district court adopted the magistrate judge’s report and denied
Bramlett’s § 2255 motion. The district court denied Bramlett’s subsequent motion
for a certificate of appealability (“COA”). This Court granted Bramlett a COA on
this issue only: “Whether the district court erred in determining that trial counsel
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was not constitutionally ineffective for failing to seek dismissal of the criminal
indictment against the appellant under the terms of the Speedy Trial Act.”1
II. DISCUSSION
A. Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, a defendant must
demonstrate both that (1) his counsel’s performance was deficient, and (2) the
deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064 (1984). A court need not address both prongs of
the Strickland test if the defendant makes an insufficient showing as to either
prong.2 See Dingle v. Sec’y for the Dep’t of Corr., 480 F.3d 1092, 1100 (11th Cir.
2007).
A defendant cannot establish deficient performance unless he shows “that
his counsel’s conduct fell below an objective standard of reasonableness in light of
prevailing professional norms at the time the representation took place.” Reed v.
1
On appeal, Bramlett argues that the district court erred in not addressing all his habeas
corpus claims and in rejecting his contention that the government waived its opportunity to
respond to his speedy-trial ineffectiveness claim. We do not consider those arguments, as they
are outside the scope of the COA. See Murray v. United States, 145 F.3d 1249, 1251 (11th Cir.
1998) (“[I]n an apeal brought by an unsuccessful habeas petitioner, appellate review is limited to
the issues specified in the COA.”).
2
In an appeal from the denial of a § 2255 motion, this Court reviews a district court’s
legal conclusions de novo and its factual findings for clear error. Devine v. United States, 520
F.3d 1286, 1287 (11th Cir. 2008). Ineffective assistance of counsel claims present “a mixed
question of law and fact that we review de novo.” Id.4
Sec’y, Fla. Dep’t of Corr., 593 F.3d 1217, 1240 (11th Cir. 2010), cert. denied, —
S. Ct. —, 2010 WL 2345388, No. 09-11314 (U.S. Oct. 4, 2010) (quotation marks
omitted). To be objectively unreasonable, the performance must be such that “no
competent counsel would have taken the action that [the defendant’s] counsel did
take.” Grayson v. Thompson, 257 F.3d 1194, 1216 (11th Cir. 2001) (emphasis
omitted).
As to the prejudice prong, the test is whether “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Reed, 593 F.3d at 1240 (quotation marks
omitted).
B. Speedy Trial Act
The Speedy Trial Act requires that a federal criminal defendant be tried
within 70 days of the filing of an indictment against him or his arraignment,
whichever is later. 18 U.S.C. § 3161(c)(1). The statute excludes from the 70-day
calculation certain periods of delay, including the “delay resulting from any pretrial
motion, from the filing of the motion through the conclusion of the hearing on, or
other prompt disposition of, such motion.” Id. § 3161(h)(1)(D). The date on
which an event occurs, including the date of arraignment, the date a pretrial motion
is filed, and the date a pretrial motion is resolved, is not counted in calculating the
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statutory period. United States v. Jones, 601 F.3d 1247, 1255 (11th Cir. 2010);
United States v. Yunis, 723 F.2d 795, 797 (11th Cir. 1984). “[F]or purposes of the
[Speedy Trial] Act, a jury trial commences when the court begins the voir dire.”
United States v. Gonzalez, 671 F.2d 441, 443 (11th Cir. 1982) (quotation marks
omitted).
If a defendant is not brought to trial within the 70-day period, the defendant
may move to dismiss the indictment, and the district must grant that motion and
dismiss the indictment. 18 U.S.C. § 3162(a)(2). But that dismissal can be either
with or without prejudice. Zedner v. United States, 547 U.S. 489, 499, 126 S. Ct.
1976, 1984 (2006) (“If a trial does not begin on time, the defendant may move,
before the start of trial or the entry of a guilty plea, to dismiss the charges, and if a
meritorious and timely motion to dismiss is filed, the district court must dismiss
the charges, though it may choose whether to dismiss with or without prejudice.”).
In making that choice, the district court must consider several factors:
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 on the administration of justice.
18 U.S.C. § 3162(a)(2).3 “Where the defendant is charged with a serious crime, the
3
“When an indictment is dismissed without prejudice, the prosecutor may of course seek–
and in the great majority of cases will be able to obtain–a new indictment, for even if ‘the period
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delay was minor, the defendant suffered no prejudice from the delay, and the
government did not actively seek delay, dismissal should be without prejudice.”
Jones, 601 F.3d at 1257.
C. Bramlett’s Claim
Our first step in resolving Bramlett’s claim – that his trial counsel was
ineffective for not moving to dismiss for a Speedy Trial Act violation – is to
perform the speedy trial calculation. Bramlett’s speedy trial clock began to run on
March 28, 2006, the day after his arraignment. See 18 U.S.C. § 3161(c)(1); Yunis,
723 F.2d at 797 (stating the arraignment date is excluded). The clock ran until
May 17, 2006, the day before Bramlett filed his motion to suppress, for a total of
51 days. See Jones, 601 F.3d at 1255 (stating the date on which a pretrial motion
is filed is excluded).
The clock began to run again on August 15, 2006, the day after the district
court denied Bramlett’s motion to suppress. See id. (the date the court disposes of
a pretrial motion is excluded). Thus, day 70 of Bramlett’s speedy trial period fell
on Saturday, September 2, 2006.4
prescribed by the applicable statute of limitations has expired, a new indictment may be returned
. . . within six calendar months of the date of the dismissal.’ [18 U.S.C.] § 3288.” Zedner, 547
U.S. at 499, 126 S. Ct. at 1985 (omission in original).
4
The district court, in concluding that Bramlett’s speedy trial period expired on
September 1, 2006, failed to exclude the day on which Bramlett filed his motion to suppress.
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The Speedy Trial Act requires that a defendant’s trial begin by the seventieth
countable day. 18 U.S.C. § 3161(c)(1). Here, however, day 70 fell on a Saturday.
Under Federal Rule of Criminal Procedure 45(a), which governs the computation
of time periods in federal criminal actions, if the last day of a time period “is a
Saturday, Sunday, or legal holiday, the period continues to run until the end of the
next day that is not a Saturday, Sunday, or legal holiday.” Fed. R. Crim. P.
45(a)(1)(C).5 When Rule 45(a)’s time-computation rules are applied to the Speedy
Trial Act period, the speedy trial clock did not expire until Tuesday, September 5,
2006, the day after Labor Day. Because Bramlett’s trial began on that day, there
was no Speedy Trial Act violation. Accordingly, Bramlett’s trial counsel was not
ineffective for not moving to dismiss the indictment on Speedy Trial Act grounds.
We recognize that this Court has never expressly applied Rule 45(a) to this
70-day period in a published opinion, but we have applied it in interpreting another
Speedy Trial Act provision. In United States v. Skanes, 17 F.3d 1352 (11th Cir.
1994), this Court determined that, as to the Speedy Trial Act’s requirement that a
5
The version of Rule 45(a) in effect in 2006 is worded differently but, in substance, is the
same. Compare Fed. R. Crim. P. 45(a)(3) (2006) (“Include the last day of the period unless it is
a Saturday, Sunday, [or] legal holiday . . . . When the last day is excluded, the period runs until
the end of the next day that is not a Saturday, Sunday, [or] legal holiday . . . .”), with Fed. R.
Crim. P. 45(a)(1)(C) (2010) (“[I]nclude the last day of the period, but if the last day is a
Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that
is not a Saturday, Sunday, or legal holiday.”).
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defendant be charged by indictment or information within 30 days from the date of
his arrest, see 18 U.S.C. § 3161(b), the defendant’s arrest date should be excluded.
Skanes, 17 F.3d at 1353-54. This Court noted that the plain language of the statute
supported excluding the arrest date from the 30-day computation, but the Court
also relied on Rule 45:
Any doubt as to whether to count the day of arrest in computing the
speedy trial calendar is put to rest by Fed. R. Crim. P. 45 which states:
“In computing any period of time the day of the act or event from
which the designated period of time begins to run shall not be
included.” Here appellant’s arrest is the event that triggered the
running of the thirty-day clock and should not be counted. Several
circuits have used Rule 45 in interpreting other provisions of the
Speedy Trial Act, see United States v. Wright, 990 F.2d 147, 149 (4th
Cir.), cert. denied, 510 U.S. 871, 114 S. Ct. 199, 126 L. Ed. 2d 157(1993); United States v. Johnson, 953 F.2d 1167, 1172 (9th Cir.), cert.
denied, 506 U.S. 879, 113 S. Ct. 226, 121 L. Ed. 2d 163 (1992);
United States v. Vickerage, 921 F.2d 143, 147 (8th Cir.1990); United
States v. Bruckman, 874 F.2d 57, 62 (1st Cir.1989), and we see no
reason that Rule 45 should not apply here.
Skanes, 17 F.3d at 1354.6 In light of this Court’s statement in Skanes about the
6
Although Skanes concerned the Speedy Trial Act’s 30-day charging deadline instead of
the 70-day trial deadline, and Rule 45(a)’s day-of-the-act exclusion rule instead of its last-day-
on-a-weekend-or-holiday exclusion rule, its reasoning applies with equal force to the Speedy
Trial Act and Rule 45(a) provisions at issue here.
Moreover, most of the cases from other circuits that the Skanes Court cited with approval
are similar to the case at bar. See Wright, 990 F.2d at 149 (“Because the last day of the Speedy
Trial period fell on a Sunday, Federal Rule of Criminal Procedure 45(a) applied, which made
Monday, September 16th, the 30th day . . . to indict Wright”); Vickerage, 921 F.2d at 147
(“[T]he seventieth day fell on November 5, 1989, a Sunday. Because Vickerage’s trial began on
the next working day, there was no speedy trial violation. See Fed. R. Crim. P. 45(a) . . . .”);
Bruckman, 874 F.2d at 62 (“The seventieth non-excludable day would thus be October 17, 1987,
. . . [but] because October 17, 1987 fell on a Saturday, the application of Fed. R. Crim. P. 45(a)
did not require trial to commence until the following Monday.”).
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applicability of Rule 45 to Speedy Trial Act computations, we conclude that Rule
45(a)’s provision extending time periods until the next working day where the last
day of the period falls on a Saturday, Sunday, or legal holiday applies here as well.
Furthermore, even if Rule 45(a) does not apply, Bramlett has not shown that
his trial counsel’s performance was deficient. As mentioned above, the Speedy
Trial Act provides for mandatory dismissal of the indictment upon the defendant’s
motion if trial does not begin within the 70-day period, see 18 U.S.C. § 3162(a)(2),
but that dismissal can be either with or without prejudice. Zedner, 547 U.S. at 499,
126 S. Ct. at 1984. This Court has stated that “[w]here the crime charged is
serious, the [district] court should dismiss [with prejudice] only for a
correspondingly severe delay.” United States v. Russo, 741 F.2d 1264, 1267 (11th
Cir. 1984); see also United States v. Williams, 314 F.3d 552, 561 (11th Cir. 2002).
Here, Bramlett was charged with (1) possessing with intent to distribute more than
50 grams of methamphetamine, which is a serious drug offense carrying a statutory
minimum penalty of 10 years’ imprisonment and a statutory maximum of life
imprisonment, as well as (2) possessing a firearm as a convicted felon, an offense
punishable by up to ten years’ imprisonment. See 21 U.S.C. § 841(b)(1)(A)(viii);
18 U.S.C. § 924(a)(2). Under the circumstances, including the seriousness of the
charged offenses, the minimal degree of delay (one business day), and the lack of
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record evidence of prejudice to Bramlett from the delay or that the government
actively sought delay, dismissal without prejudice would generally be the
appropriate remedy for any Speedy Trial Act violation. See Jones, 601 F.3d at
1257. Consequently, a competent attorney representing Bramlett reasonably could
have decided that filing a motion to dismiss on speedy trial grounds would have
only delayed further the resolution of the charges against Bramlett and was not in
Bramlett’s best interests. Thus, even if the Speedy Trial Act was violated here,
Bramlett’s trial counsel’s failure to move to dismiss the indictment was not
objectively unreasonable, and Bramlett’s ineffective assistance of counsel claim
fails.
III. CONCLUSION
For the reasons set forth above, we affirm the district court’s denial of
Bramlett’s 28 U.S.C. § 2255 motion.
AFFIRMED.
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