                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 14-1356
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                            SHIHEE DONVEIL HATCHETT,
                              a/k/a SHIREE HATCHETT,
                                a/k/a SHAKEE HATCH,
                                   a/k/a LEON FIELD

                                       Shihee Donveil Hatchett,
                                                   Appellant
                                      ____________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                             (D.C. No. 2-08-cr-00256-001)
                       District Judge: Honorable Anita B. Brody
                                     ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   October 8, 2015

       Before: McKEE, Chief Judge, AMBRO and HARDIMAN, Circuit Judges.

                            (Opinion Filed: October 28, 2015)

                                      ____________

                                        OPINION*
                                      ____________

       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
HARDIMAN, Circuit Judge.

       Shihee Hatchett appeals the District Court’s order denying his motion to vacate,

set aside, or correct his sentence under 28 U.S.C. § 2255. We will affirm in part and

remand the matter for further proceedings.

                                               I

       In May 2008, a federal grand jury indicted Hatchett under 18 U.S.C. § 922(g)(1)

for possession of a firearm by a convicted felon. After he pleaded not guilty, the U.S.

District Court for the Eastern District of Pennsylvania scheduled a jury trial for July 7,

2008. The Government and Hatchett then jointly moved for a continuance delaying the

trial until “after October 24, 2008.” App. 46. The District Court granted the motion in

June 2008, finding that “the ends of justice are best served by granting a continuance”

because, as the motion averred, “defense counsel needs adequate time to review the

discovery, investigate the case, and meet with his client . . . to discuss the case and a

possible non-trial disposition.” App. 47. The Court did not set a new trial date until

December, when it scheduled trial to begin on March 23, 2009. Another continuance was

granted in March at the Government’s request because Hatchett planned to offer medical

evidence, and the trial began on June 1, 2009.

       Hatchett was convicted and sentenced to 10 years’ imprisonment. He appealed on

the ground that § 922(g)(1) is unconstitutional, but we affirmed his conviction. In

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February 2012, Hatchett filed a pro se § 2255 motion raising various claims of ineffective

assistance of trial and appellate counsel, which the District Court denied. United States v.

Hatchett, 987 F. Supp. 2d 529 (E.D. Pa. 2013). We granted Hatchett a certificate of

appealability to consider whether his attorneys were ineffective for failing to argue that

(1) the open-ended continuance granted in June 2008 was unreasonable in length; (2) pre-

indictment prosecutorial delay justified a sentencing variance; and (3) the District Court

erroneously believed it lacked discretion to grant a variance based on time Hatchett spent

in state custody. The certificate also asked whether the District Court’s failure to hold an

evidentiary hearing or permit discovery on these claims constituted an abuse of

discretion.

                                             II

       The District Court had jurisdiction under § 2255, and we have jurisdiction under

28 U.S.C. §§ 1291 and 2253. Our review of the denial of Hatchett’s § 2255 motion is

plenary as to the District Court’s legal conclusions, but we review its factual findings for

clear error only. See United States v. Travillion, 759 F.3d 281, 289 (3d Cir. 2014).

       Per Strickland v. Washington, a claim of ineffective assistance of counsel requires

a showing that (1) “counsel’s performance was deficient,” meaning “counsel made errors

so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by

the Sixth Amendment”; and (2) “the deficient performance prejudiced the defense.” 466

U.S. 668, 687 (1984). Our “scrutiny of counsel’s performance must be highly




                                              3
deferential,” and we “must indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.” Id. at 689.

       Hatchett’s first claim is that his attorneys were ineffective for failing to argue that

the indictment should have been dismissed because the continuance granted in June 2008

resulted in a violation of the Speedy Trial Act. The Act generally requires that a trial

begin within 70 days of the defendant’s initial appearance, on penalty of dismissal of the

indictment. 18 U.S.C. §§ 3161(c)(1), 3162(a)(2). Nevertheless, delay is excludable if it

results “from a continuance granted by any judge . . . if the judge granted such

continuance on the basis of his findings that the ends of justice served by taking such

action outweigh the best interest of the public and the defendant in a speedy trial.”

§ 3161(h)(7)(A). In United States v. Lattany, we held that delay caused by an open-ended

“ends of justice” continuance is excludable under the Speedy Trial Act as long as the

continuance is not “unreasonably long.” 982 F.2d 866, 881 (3d Cir. 1992). Hatchett

argues that the continuance granted by the District Court in June 2008 was unreasonably

long under Lattany and his counsel was ineffective for not raising this argument.

       We disagree. First, the continuance here appears reasonable. The parties disagree

on its exact duration, compare Hatchett Br. 15 (pegging the delay at 259 days) with Gov’t

Br. 27 n.6 (207 days), but it was shorter than the one approved in Lattany, see 982 F.2d at

874–76 (describing a delay of over a year). And the District Court supported the

continuance with findings that the delay would give Hatchett’s counsel time to review

discovery materials, meet with Hatchett, and explore a possible plea agreement. See App.

                                              4
47; see also § 3161(h)(7)(A) (requiring a court to “set[] forth . . . its reasons for finding

that the ends of justice served by the granting of such continuance outweigh the best

interests of the public and the defendant”). We recognize that open-ended continuances

are disfavored, see Lattany, 982 F.2d at 883, but that doesn’t mean the continuance at

issue here violated the Speedy Trial Act.

       In any event, we would be hard-pressed to conclude that Hatchett’s counsel was

ineffective for failing to argue a violation of the Speedy Trial Act. Hatchett argues that

any reasonably competent attorney would have moved to dismiss the indictment on

speedy trial grounds even though the continuance was granted on Hatchett’s own motion.

See id. (“Defendants cannot be wholly free to abuse the system by requesting . . .

continuances and then argue that their convictions should be vacated because the

continuances they acquiesced in were granted.”). Hatchett makes much of the fact that he

did not personally approve the motion but ignores the rule that “delay caused by the

defendant’s counsel is also charged against the defendant.” Vermont v. Brillon, 556 U.S.

81, 91 (2009). Absent a showing that (contrary to the District Court’s finding) a

continuance was not needed to give Hatchett’s counsel time to prepare for trial, we can’t

say that acquiescence to the continuance fell “outside the wide range of professionally

competent assistance.” Strickland, 466 U.S. at 690. We will therefore affirm the District

Court’s ruling to that extent.

                                              III




                                               5
       Hatchett’s remaining two claims concern counsel’s alleged failure to adequately

pursue a sentencing variance to account for a delay in the initiation of the federal criminal

proceedings. Because the Government concedes that remand is necessary for the District

Court to fully address these claims in the first instance, we will remand the case for

further proceedings consistent with this opinion. During those proceedings, the District

Court may exercise its discretion to determine whether a hearing or discovery is

necessary to its disposition.




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