United States v. McLendon, 16-3121

944 F.3d 255

UNITED STATES of America, Appellee

v.Juan Petis MCLENDON, Appellant

No. 16-3121

United States Court of Appeals, District of Columbia Circuit.

Argued September 5, 2019

Decided December 10, 2019

Howard B. Katzoff, appointed by the court, argued the cause and filed the briefs for appellant.

Daniel Honold, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jessie K. Liu, U.S. Attorney, and Elizabeth Trosman, Chrisellen R. Kolb, and James Sweeney, Assistant U.S. Attorneys.

Before: Henderson and Katsas, Circuit Judges, and Sentelle, Senior Circuit Judge.

Sentelle, Senior Circuit Judge:

Appellant, Juan McLendon, moved the district court to vacate his conviction, alleging violations of his Sixth Amendment right to effective assistance of counsel. He argued that his trial and appellate counsel failed to properly argue or advance a claim that his Speedy Trial Act ("STA") rights were violated. The district court denied McLendon's motion. It held that he could not show Strickland prejudice resulting from counsels' alleged failures because, even if there was a violation of the STA, the trial court would have dismissed the case without prejudice, allowing the government to reindict and reprosecute McLendon on the same charges.

For the reasons stated below, we affirm the district court's denial of the motion.

I. BACKGROUND

A. Speedy Trial Act

The STA was designed to give effect to a criminal defendant's right to a speedy trial under the Sixth Amendment. United States v. Rojas-Contreras , 474 U.S. 231, 238, 106 S.Ct. 555, 88 L.Ed.2d 537 (1985) (Blackmun, J., concurring) (citing H.R. REP. NO. 96-390, at 3 (1979)). Under the Act, "if a defendant is not brought to trial within seventy days of indictment, the court ‘shall’ dismiss the indictment ‘on motion of the defendant.’ " United States v. Miller , 799 F.3d 1097, 1104 (D.C. Cir. 2015) (quoting 18 U.S.C. § 3162(a)(2) ). The Act specifies certain periods of pretrial delay that are excluded from computation of the seventy days. 18 U.S.C. § 3161(h). If the Act is violated, the court must dismiss the case but has discretion to dismiss with or without prejudice. Id. § 3162(a)(2). The statute lists three nonexclusive factors to guide the court's exercise of that discretion: (1) the seriousness of the crime, (2) the facts and circumstances leading to the dismissal, and (3) the impact of reprosecution on the administration of the Act and on the administration of justice. Id. If the court dismisses without prejudice, the government is free to seek a new indictment against the defendant on the same or related charges. See Miller , 799 F.3d at 1104.

B. Procedural History

The prosecution in the instant case began over twenty years ago. On September 15, 1998, the federal government filed an indictment against McLendon in Case No. 98-320. The indictment charged McLendon with two counts of unlawful use of a communication facility in violation of 21 U.S.C. § 843(b), two counts of unlawful distribution of fifty grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii), and two counts of unlawful distribution of cocaine base within 1,000 feet of a school in violation of 21 U.S.C. § 860(a).

McLendon was arrested on September 17, 1998, when he sold approximately sixty-two grams of cocaine base to an undercover police officer. One week after the arrest, the government filed a superseding indictment in the same case, which included an additional count for each of the charges in the original indictment, as well as charges for carrying a firearm during a drug-trafficking offense in violation of 18 U.S.C. § 924(c)(1) ; carrying a pistol without a license in violation of 22 U.S.C. § 3204(a); and assaulting, resisting, or interfering with a police officer in violation of 22 U.S.C. § 505(a). On October 2, 1998, McLendon was arraigned on the superseding indictment, and the trial court set a trial date for January 6, 1999, but it rescheduled the trial for January 13, 1999. In early January 1999, however, the trial court raised concerns that the STA was violated and scheduled a status hearing.

A review of the record reveals that the parties, and the court, experienced scheduling difficulties throughout the pendency of the trial. Between his arrest in late September 1998 and November 23, 1998, McLendon changed attorneys three times. One of McLendon's earlier attorneys requested an extension to file pretrial motions, which was granted. Defense counsel, however, never filed any pretrial motions, never informed the court or the government that he did not intend to do so, and never attempted to cancel the motions hearing. In fact, it was this scheduled, but unnecessary, motions hearing that sparked the trial court's concerns about the STA.

At the STA status hearing on January 8, 1999, the trial court noted that, in part because McLendon had changed attorneys on three separate occasions, it would have been impossible to try the case within the STA period. Defense counsel himself repeatedly reinforced this conclusion by accepting much of the blame for the delay due to his busy court schedule and stating that he was not prepared to go to trial on the scheduled date. The court also accepted some blame for the delay and noted that "the case [had] slipped through the cracks." Appendix 77.

On January 7, 1999, one day before the status hearing, the government filed a new indictment in Case No. 99-11, which was identical to the indictment in Case No. 98-320. The government explained that it procured the indictment in Case No. 99-11 because it did not want the defendant released from custody if the court found an STA violation. The government maintained that it had "detrimentally relied on the fact that the defense was going to file motions" and repeatedly noted that it was and had been prepared to proceed to trial on the scheduled date. Appendix 68.

The trial court estimated that the speedy trial clock had run several weeks earlier, around December 14, 1998. Accordingly, the trial court concluded that the Act had been violated and the indictment in Case No. 98-320 should be dismissed, noting that it was inclined to dismiss the case without prejudice. Additionally, the trial court stated that it intended to proceed to trial on the identical indictment in Case No. 99-11, but the court did not address whether the speedy trial clock in Case No. 98-320 also applied to Case No. 99-11. The court allowed both parties time to research and file written motions on the issues, including whether to dismiss the indictment in Case No. 98-320 with or without prejudice.

Despite the court's conclusions on the STA violations, defense counsel filed a motion to dismiss that allegedly miscalculated the excludable delay and ultimately conceded that the Act had not been violated. Counsel instead moved to dismiss either of the pending indictments with prejudice on double jeopardy grounds. The defense motion did not reference the § 3162(a)(2) factors and cited no other authority to support a dismissal with prejudice. Nor did defense counsel explore whether the same speedy trial clock applied to both Case No. 98-320 and Case No. 99-11.

In its own motion to dismiss Case No. 98-320 without prejudice, the government discussed each of the § 3162(a)(2) factors but did not consider whether the same speedy trial clock applied to both indictments. Based on the arguments before it, the trial court denied the defense motion, granted the government's motion to dismiss Case No. 98-320 without prejudice, and allowed the government to prosecute McLendon in Case No. 99-11.

McLendon was tried three times. The first trial resulted in a mistrial on the first eight counts, a dismissal of the ninth count, and an acquittal on counts ten through twelve. The government then filed a new fifteen-count superseding indictment against McLendon on March 17, 1999. A second jury trial was held on that indictment and resulted in another mistrial, this time on all counts. A third jury trial was held beginning on January 4, 2000. Finally, McLendon was found guilty on all counts, except for one count on which he was found guilty of a lesser-included offense. On February 22, 2002, McLendon was sentenced to 235 months in prison followed by ten years of supervised release.

McLendon directly appealed his conviction, and this Court affirmed. United States v. McLendon , 378 F.3d 1109 (D.C. Cir. 2004). He then filed a motion to vacate, set aside, or correct his sentence, arguing that both trial and appellate counsel were constitutionally ineffective. McLendon argued that the identical indictment in Case No. 99-11 was a superseding indictment. The speedy trial clock for the indictment in Case No. 98-320 thus applied to the indictment in Case No. 99-11. Accordingly, he asserted, Case No. 99-11 should have been dismissed along with Case No. 98-320, and the prosecution in Case No. 99-11 violated his speedy trial rights under the Act. McLendon claimed that his trial counsel's flawed speedy trial advocacy was ineffective, and his appellate counsel's failure to argue that trial counsel was ineffective and failure to raise the standalone STA violation in the first place were also ineffective.

On November 29, 2016, the district court denied McLendon's motion because he had failed to show that the alleged failures of his trial and appellate counsel had prejudiced his defense. McLendon filed a notice of appeal, and the district court granted a certificate of appealability. The current appeal ensued.

II. STANDARD OF REVIEW

"As the court resolved in United States v. Abney , 812 F.3d 1079, 1086–87 (D.C. Cir. 2016), our review of the denial of a § 2255 motion on the ground of ineffective assistance of counsel is de novo ." United States v. Aguiar , 894 F.3d 351, 355 (D.C. Cir. 2018). The familiar standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), governs Sixth Amendment ineffective assistance of counsel clai...