127 F. 3d 1107 - United States v. R Caposieno

MEMORANDUM*

John R. Caposieno, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion to vacate his conviction and sentence following a jury trial for three counts of mail fraud (18 U.S.C. § 1341) and two counts of interstate transportation of stolen property (18 U.S.C. § 2134). We review de novo a district court's denial of a section 2255 motion See Sanchez v. United States, 50 F.3d 1448, 1451-52 (9th Cir.1995). We have jurisdiction pursuant to 28 U.S.C. § 2255, and we affirm.

Caposieno contends that his trial and appellate counsel were ineffective for failing to raise Speedy Trial Act (STA) objections. These contentions lack merit.

We review de novo a district court's determination that trial counsel rendered effective assistance. See United States v. Span, 75 F.3d 1383, 1387 (9th Cir.1996). To prevail on a claim of ineffective assistance, a defendant must show both that his counsel's performance was deficient and that this prejudiced his case. See Strickland v. Washington, 466 U.S. 668, 688 (1984). "If it is possible to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, we may do so without examining the performance prong." Id. at 697.

Caposieno first argues that trial and appellate counsel were ineffective for failing to object that the superseding indictment was improperly returned more than 30 days from the date of his arrest. This argument lacks merit because the superceding indictment did not materially alter the original indictment and the original indictment was filed within the 30-day period. See United States v. McCown, 711 F.2d 1441, 1447 (9th Cir.1983) (no STA violation where count charged beyond 30-day period in second indictment had been timely charged in first indictment). Accordingly, Caposieno's attorneys were not ineffective for failing to challenge the timeliness of the superceding indictment. See Strickland v. Washington, 466 U.S. at 688.

Nor were Caposieno's attorneys ineffective for failing to argue that Caposieno was not tried within 70 days of the indictment or his arraignment. Although Caposieno was not tried until a year after his arraignment on January 11, 1983, the delay was due to seven continuances requested by Caposieno in order to prepare for trial. Excluding the time period attributable to those continuances, the trial commenced within 70 days of arraignment. See 18 U.S.C. § 3161(h)(8)(A) (1985) (district court may exclude from the 70-day calculation any delay resulting from a continuance if based on finding that the ends of justice served by taking such action)

Caposieno does not allege that the continuances were unnecessary for the adequate preparation of his case.1 Nevertheless, Caposieno maintains that his counsel was ineffective for failing to move to dismiss the indictment on the grounds that the court failed to make the requisite "ends of justice" analysis with regard to those continuances. However, in its orders granting the continuances, the district court concluded that the "ends of justice" were served by granting the defendant's motion and that the "best interests of the public and the defendant are outweighed" by the continuances. See 18 U.S.C. § 3161(h)(8)(A) (1985). The court also noted that the continuances were granted "[p]ursuant to defendant's motion;" each motion submitted by defense counsel contained the facts justifying the need for the continuance. To the extent the court erred by failing to state the relevant facts in its order, an objection by trial counsel would have merely resulted in the court curing any defect with appropriate findings on the record. See United States v. Engstrom, 7 F.3d 1423, 1426 (9th Cir.1993) (noting that simultaneous findings concerning ends of justice unnecessary as long as trial court later shows the delay was motivated by proper considerations). Accordingly, Caposieno's attorneys were not ineffective for failing to raise STA objections. See Strickland, 466 U.S. at 688).