     Case: 16-50670      Document: 00514408887         Page: 1    Date Filed: 03/30/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                    No. 16-50670                              FILED
                                  Summary Calendar                      March 30, 2018
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

PETER VICTOR AYIKA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:14-CV-367


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Peter Victor Ayika, federal prisoner # 33042-280, appeals the district
court’s denial of his 28 U.S.C. § 2255 motion. We granted him a certificate of
appealability as to his ineffective-assistance-of-counsel claim based on defense
counsel’s failure to argue that the timing of Ayika’s trial violated the Speedy
Trial Act.      Ayika’s motion for authorization to prepare transcripts at




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 16-50670

government expense is DENIED as unnecessary. His motion for leave to file a
corrected supplemental reply brief is also DENIED.
      We review the district court’s factual findings for clear error and the
legal conclusions de novo. United States v. Freeman, 818 F.3d 175, 177 (5th
Cir. 2016). However, we may affirm the district court’s judgment on any basis
supported by the record. United States v. Grosz, 76 F.3d 1318, 1324 n.6 (5th
Cir. 1996).
      To prevail on a claim of ineffective assistance of trial counsel, Ayika must
satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668,
687 (1984). Under that standard, he must show that his counsel’s performance
was deficient and “fell below an objective standard of reasonableness.” Id. at
688. He also must show that the deficient performance prejudiced his defense
and deprived him of a fair trial. Id. at 691–92, 694. Failure to establish either
deficient performance or prejudice defeats the claim. Id. at 697.
      The Speedy Trial Act requires that a trial commence within seventy days
from the latter of a defendant’s indictment or initial appearance. 18 U.S.C.
§ 3161(c)(1). If more than seventy days pass between the indictment and the
trial, the “indictment shall be dismissed on motion of the defendant.” 18 U.S.C.
§ 3162(a)(2). However, the seventy-day period is subject to exceptions and
tolling periods. § 3161(h).
      We agree with the parties that the filing of the second superseding
indictment, containing the two counts of conviction, did not affect the Speedy
Trial Act’s seventy-day period. See United States v. Bermea, 30 F.3d 1539,
1567 (5th Cir. 1994). However, Ayika’s proceedings calculated from his initial
appearance following his original indictment to his jury trial included
excludable delays caused by a determination of Ayika’s mental competency,
continuances granted for the ends of justice, an interlocutory appeal, and



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                                  No. 16-50670

various pretrial motions including the Government’s motion for detention,
Ayika’s motion to substitute counsel, defense counsel’s motion to withdraw,
and Ayika’s motion seeking a refund of fees paid to his former defense counsel.
§ 3161(h)(1)(A), (C), (D), (7)(A). Based on our calculations, only fifty-five non-
excludable days elapsed for purposes of the Speedy Trial Act prior to Ayika’s
trial. As there was no Speedy Trial Act violation, Ayika cannot meet either
prong of the ineffective-assistance test. See Strickland, 466 U.S. at 688, 694;
Clark v. Thaler, 673 F.3d 410, 429 (5th Cir. 2012).
      Accordingly, the district court’s judgment is AFFIRMED.




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