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 United States v. Rushin, 211 Fed.Appx. 705 (10th Cir.2007) (unpublished).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 United States v. Rushin, 2009 WL 5171781 (D.Kan.2009) (unpublished).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
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.
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).
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:
Zedner, 547 U.S. at 506-07, 126 S.Ct. 1976 (quoting § 3161(h)(7)(A)).
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).
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,
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.
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, 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
Meanwhile, Defendant, on February 11, 2005, made his initial appearance on a superceding indictment charging him in thirteen counts with criminal misconduct 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.
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.
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.
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, ___ U.S. ___, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011) (emphasis added) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052).
Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011) (quoting Strickland, 466 U.S. at 688, 690, 104 S.Ct. 2052). 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 the defendant by the Sixth Amendment.'" Harrington, 131 S.Ct. at 787 (emphasis added) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052).
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.
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 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, 104 S.Ct. 2052). 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."
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, 108 S.Ct. 2413, 101 L.Ed.2d 297 (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 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 Fed.Appx. 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, 104 S.Ct. 2052). Surely something was to be gained, however
Yarborough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1, 157 L.Ed.2d 1 (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, 104 S.Ct. 2052.
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, 104 S.Ct. 2052. 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, 104 S.Ct. 2052).
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
"A reasonable probability is a probability sufficient to undermine confidence in the outcome."
AFFIRMED.
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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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)
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, 104 S.Ct. 2052. Therefore, I think it more prudent to leave the performance question unanswered and to resolve this case under the prejudice prong.
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 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.2011) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052), 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, 108 S.Ct. 2413, 101 L.Ed.2d 297 (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
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, 104 S.Ct. 2052.
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 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 1309 (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 1308 (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 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
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 "[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, 108 S.Ct. 2413).
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 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, ___ U.S. ___, 130 S.Ct. 1307, 175 L.Ed.2d 1092 (2010). In this instance, however, there is no evidence that the government acted in
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 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 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.
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.
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.
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.
Chambliss, 384 Fed.Appx. at 899.
