              Case: 14-11390    Date Filed: 07/27/2015   Page: 1 of 9


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 14-11390
                            Non-Argument Calendar
                          ________________________

            D.C. Docket Nos. 1:11-cv-00179-MEF-CSC
                             1:05-cr-00256-LSC-CSC-1
GREGORY SHIVER,

                                                               Petitioner-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                              Respondent-Appellee.
                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Alabama
                         ________________________

                                  (July 27, 2015)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Gregory Shiver, a federal prisoner, appeals from the district court’s denial of

his 28 U.S.C. § 2255 motion to vacate, correct, or set aside his sentence. A

certificate of appealability (“COA”) was granted on the following issue: “whether
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Shiver received ineffective assistance of counsel when counsel failed to move to

dismiss the charge against him before the start of trial based on a violation of the

Speedy Trial Act.”    In rejecting Shiver’s ineffectiveness claim, the district court

reasoned that Shiver had failed to show he was prejudiced by counsel’s failure to

move for dismissal since Shiver failed to show that the original trial court would

have dismissed his indictment with prejudice. On appeal, Shiver argues that: (1) if

his trial counsel had moved to dismiss the indictment on speedy trial grounds, the

trial court likely would have dismissed the indictment with prejudice; (2) the

district court in his § 2255 proceedings should have given him an opportunity to

rebut a purported presumption that dismissal without prejudice would have

resulted in the government seeking his re-indictment; and (3) even dismissal

without prejudice would have been a different outcome in the “proceeding that was

pending.” After thorough review, we affirm.

      A claim of ineffective assistance of counsel is a mixed question of law and

fact that we review de novo. Devine v. United States, 520 F.3d 1286, 1287 (11th

Cir. 2008). Under Strickland v. Washington, 466 U.S. 668 (1984), a movant

demonstrates ineffective assistance of counsel by showing that (1) counsel’s

representation fell below an objective standard of reasonableness, and (2) counsel’s

deficient performance prejudiced the defendant. Devine, 520 F.3d at 1288. Under

the first prong of Strickland, judicial scrutiny of counsel’s performance is highly


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deferential. Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000) (en

banc).    We indulge the “strong presumption” that counsel’s performance was

reasonable, and unreasonableness requires a showing that “no competent counsel

would have taken the action that [] counsel did take.” Id. at 1315 (quotation

omitted). However, an attorney’s ignorance of a point of law fundamental to the

case, combined with the failure to perform basic research on that point, is a

quintessential example of unreasonable performance under Strickland. Hinton v.

Alabama, 571 U.S. __, 134 S.Ct. 1081, 1089 (2014).

         Under the prejudice prong of Strickland, the petitioner must show a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Osley v. United States, 751 F.3d 1214,

1222 (11th Cir. 2014). A reasonable probability is a probability sufficient to

undermine confidence in the outcome.          Id.   “The essence of an ineffective

assistance claim is that counsel’s unprofessional errors so upset the adversarial

balance between defense and prosecution that the trial was rendered unfair and the

verdict rendered suspect.” Kimmelman v. Morrison, 477 U.S. 365, 374 (1986). A

habeas petitioner must carry his burden on both Strickland prongs to demonstrate

ineffective assistance of counsel. Osley, 751 F.3d at 1222. We need not address

both prongs if the defendant has made an insufficient showing on one. Id.




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      The Speedy Trial Act requires, absent certain exclusions, that a criminal

defendant be tried within 70 days of the indictment. 18 U.S.C. § 3161(c)(1). If the

defendant withdraws his guilty plea, he is deemed indicted on the day the order

permitting the withdrawal becomes final. Id. § 3161(i). The Act details the actions

that toll the speedy trial clock. Id. § 3161(h). A delay due to a continuance only

tolls the speedy trial clock if the district court makes a finding that the ends of

justice served by the continuance outweigh the best interests of the public and the

defendant in a speedy trial. Id. § 3161(h)(7)(A). Failure by the district court to

make the ends-of-justice finding results in the time being non-excludable. Zedner

v. United States, 547 U.S. 489, 507-08 (2006). If a defendant is not brought to trial

within the time limits prescribed by § 3161, then the indictment “shall be

dismissed” on a motion by the defendant. 18 U.S.C. § 3162(a)(2).

      The district court has discretion to dismiss the indictment with prejudice or

without prejudice. United States v. Brown, 183 F.3d 1306, 1309-10 (11th Cir.

1999). There is no preference for one type of dismissal over the other. Id. at 1310.

In choosing between the two, the court should consider (1) the seriousness of the

offense, (2) the facts and circumstances that led to dismissal, and (3) the impact of

re-prosecution on the administration of the Speedy Trial Act and the administration

of justice. Id.; 18 U.S.C. § 3162(a)(2). We perform a step-by-step analysis of each

factor. United States v. Russo, 741 F.2d 1264, 1267 (11th Cir. 1984).


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      Where the crime charged is serious, the court should dismiss with prejudice

“only for a correspondingly severe delay.” United States v. Williams, 314 F.3d

552, 557 (11th Cir. 2002). In Williams, we concluded that a 68-day violation in a

prosecution for serious drug crimes warranted dismissal without prejudice. Id. at

560-61. We recognized that, at some point, however, the length of the delay can

be enough, by itself, to justify dismissal with prejudice. Id. at 557.

      As for the second factor -- the facts and circumstances leading to the Speedy

Trial Act violation -- we focus on “the culpability of the delay-producing conduct.”

Id. at 559 (quotation omitted). In United States v. Miranda, 835 F.2d 830 (11th

Cir. 1988), a federal criminal prosecution, a magistrate judge prepared a report and

recommendation for the district court concerning a motion to dismiss based on the

unconstitutionality of certain state and federal states. Id. at 832. Shortly thereafter,

a different district judge in related cases ordered the magistrate judge to advise the

Florida attorney general that the State could elect to participate in the case, since

the constitutionality of a state statute was at issue. Id. The magistrate judge

entered an order granting the Florida attorney general 20 days to notify the court of

its interest, or otherwise the report and recommendation would stand as the final

report by the magistrate judge. Id. The Florida attorney general did not respond,

and the case “essentially dropped out of sight” until the defendants moved to

dismiss on speedy trial grounds roughly four months later. Id. at 833. The district


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court denied the motion to dismiss, finding that it was the defendants’ burden to

notify the court of the attorney general’s failure to respond and that the case was

ripe to continue. Id. On appeal, however, we explained that the appellants should

not shoulder the entire blame, as they had no duty to “insure speediness against

themselves,” and that the government and the district court shared responsibility

for the Speedy Trial Act violation. Id. at 833-34. We concluded that it did not

need to remand for a determination of whether to dismiss with prejudice because

the record compelled dismissal without prejudice, noting that “[b]y administrative

confusion the court failed its responsibility” and the government failed its duty of

notification as well. Id. at 834. We added that “[t]he unfortunate circumstances of

[the] case point more to negligence and oversight than intentional delay.” Id.

      Finally, applying the third statutory factor, “there is almost always some

tension between administration of the Act and the administration of justice.”

Williams, 314 F.3d at 559 (quotations omitted). Defendants can always argue that

the minimal sanction of dismissal without prejudice takes the teeth out of the Act’s

requirements, and the government can always argue that re-prosecution furthers the

public’s interest in bringing criminals to trial. Id. at 559-60. However, the third

factor is not necessarily neutral -- it not only allows courts to review the

seriousness of the criminal charges and the reason for the delay, but also “provides




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authority for considering such aggravating and mitigating factors as the length of

the delay and the prejudice to the defendant.” Id. at 560 (quotations omitted).

      In this case, Shiver has failed to show that he was he was prejudiced under

Strickland by counsel’s failure to move for dismissal on speedy trial grounds. As

for Shiver’s claim that the trial court likely would have dismissed the indictment

without prejudice if his trial counsel had moved for dismissal, we are unpersuaded.

Indeed, both parties agree that possession of child pornography is a serious offense

-- the first factor the Speedy Trial Act directs district courts to consider in deciding

whether to dismiss with prejudice under § 3162(a)(2). Additionally, while the

delay was substantial, it was not long enough, by itself, to justify dismissal with

prejudice, especially in light of the severity of the pending charge. Turning to the

second § 3162(a)(2) factor, the facts and circumstances surrounding the delay do

not indicate that the government was at fault.             Shiver did not oppose the

government’s motion to continue; the district court ultimately made an ends-of-

justice finding for the continuance; and nothing in the record suggests that either

party sought to intentionally delay the case. Nor does the third § 3162(a)(2) factor

-- the impact of re-prosecution on the administration of the Speedy Trial Act and

the administration of justice -- weigh in Shiver’s favor. Notably, at the time,

Shiver agreed that the ends of justice would be met by a continuance. Moreover,

Shiver has not argued that the delay prejudiced the preparation of his case.


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Accordingly, a consideration of the § 3162(a)(2) factors indicates that the trial

court would have dismissed the indictment without prejudice.

      We also find no basis for Shiver’s request for a remand to give him the

opportunity to rebut the “presumption” that the government would have re-indicted

him. As the record shows, Shiver did not present any evidence below to establish

that the government would not have re-indicted him given the seriousness of the

charge. Because the burden of proof was on him to show that the government

would not have re-indicted, he is incorrect in asserting that the district court

applied an impermissible presumption against him.

      Finally, we disagree with Shiver that a dismissal without prejudice would

have been a different outcome in the “proceeding,” and that, had the government

re-indicted him, it would have been an entirely different “proceeding” under

Strickland. For starters, Shiver’s cited case law does not support this position.

Moreover, as we’ve explained, Shiver has not shown that a dismissal without

prejudice would have ended the criminal prosecution. Thus, we cannot conclude

that counsel’s failure to move to dismiss the indictment before trial would have

affected the ultimate outcome of the pending criminal charges against Shiver.

      In short, Shiver failed to demonstrate prejudice under Strickland. Because

we need not need not address both Strickland prongs if the defendant has made an




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insufficient showing on one, we conclude that the district court did not err in

rejecting Shiver’s ineffective-assistance-of-counsel claim. 1

       AFFIRMED.




       1
          Shiver also has requested a remand for an evidentiary hearing to determine whether
counsel acted strategically or due to ignorance of the law. However, we need not resolve the
issue of counsel’s performance in light of our conclusion that Shiver suffered no prejudice.
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