May 20, 2019

Tenth Circuit: Counsel’s Actions Were Objectively Reasonable in Not Seeking Dismissal of Indictment Based on Violation of Speedy Trial Act

The Tenth Circuit Court of Appeals issued its opinion in United States v. Rushin on Tuesday, June 28, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioner was sentenced to 139 years imprisonment for robbing six convenience stores at gunpoint. Petitioner appeals from the district court’s denial of his motion to vacate or set aside his sentence, claiming entitlement to post-conviction relief because he 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).

The Court found that Petitioner did not carry his burden of proof regarding ineffective assistance of counsel. To succeed on an ineffective assistance of counsel claim, “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.'” Violation of the STA is not enough to grant a dismissal with prejudice, and a dismissal without prejudice allows the government to return a new indictment within six months. Ultimately, Petitioner’s counsel’s actions during trial were objectively reasonable; should Petitioner have been successful in a pursuit of a STA claim, it is probable that the government would simply have reindicted him.

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