                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                   FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                           JAN 17, 2007
                            No. 06-12109                 THOMAS K. KAHN
                        Non-Argument Calendar                CLERK
                      ________________________

                D. C. Docket Nos. 06-00054-CV-T-26-EAJ
                            03-00293-CR-T-2

HAMILI MILLIGAN,


                                                         Petitioner-Appellant,

                                 versus

UNITED STATES OF AMERICA,

                                                       Respondent-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                    _________________________

                           (January 17, 2007)

Before ANDERSON, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
       Federal prisoner Hamili Milligan, proceeding pro se, appeals the district

court’s denial of his motion to vacate, set aside, or correct his sentence, filed

pursuant to 28 U.S.C. § 2255. Milligan filed a notice of appeal from the denial of

relief. This Court granted a certificate of appealability (COA) on the following

issues:

       (1) Whether appellant’s trial counsel was ineffective for failing to file a
       motion to dismiss based on a violation of the Speedy Trial Act, 18 U.S.C.
       § 3161(b).

       (2) Whether appellant’s appellate counsel was ineffective for failing to raise
       this first issue on direct appeal.

As to the first claim, Milligan has shown a violation of the Speedy Trial Act

occurred, but has failed to show he was prejudiced. As to the second claim, this

Court would not hear a direct appeal on whether Milligan’s trial counsel was

ineffective because the issue was not first raised in the district court. We,

therefore, affirm the district court’s denial of relief.

                             I. STANDARD OF REVIEW

       Whether a defendant received ineffective assistance of counsel under the

Sixth Amendment is a mixed question of law and fact reviewed de novo. Mincey v.

Head, 206 F.3d 1106, 1142 (11th Cir. 2000). Our review is limited to the issues

specified in the COA issued pursuant to 28 U.S.C. § 2253(c). Murray v. United

States, 145 F.3d 1249, 1250–51 (11th Cir. 1998).

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                                 II. DISCUSSION

A.    Ineffective Assistance of Trial Counsel

      To establish a claim of ineffective assistance of counsel, Milligan must

show: (1) his counsel’s performance fell below an objective standard of reasonable

professional assistance; and (2) there is a reasonable probability that the outcome

would have been different but for his lawyer’s unprofessional errors. Strickland v.

Washington, 104 S. Ct. 2053, 2064–68 (1984); Grossman v. McDonough, 466 F.3d

1325, 1344 (11th Cir. 2006). Counsel is presumed to have rendered adequate

assistance and to have exercised reasonable professional judgment. Strickland, 104

S. Ct. at 2064.

      Even if Milligan can show his counsel’s performance fell below an objective

standard of reasonable professional assistance, he is unable to show prejudice. The

Speedy Trial Act provides “Any . . . indictment charging an individual with the

commission of an offense shall be filed within thirty days from the date on which

such individual was arrested . . . .” 18 U.S.C. § 3161(b). If the Government files

the indictment after this time limit, which the Government did in this case, the

charges will be dismissed with or without prejudice with the district court

considering the following factors: “the seriousness of the offense; the facts and

circumstances of the case which led to the dismissal; and the impact of a



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reprosecution on the administration of this chapter and the administration of

justice.” 18 U.S.C. § 3162(a)(1). This Court has previously held that drug and

firearm charges are serious offenses when considering whether to dismiss with or

without prejudice. See United States v. Williams, 314 F.3d 552, 559 (11th Cir.

2002).

         Milligan has failed to establish that his trial counsel’s failure to file a motion

to dismiss prejudiced him. The district court would have likely dismissed the

charges without prejudice, and the case would have been refiled. In addition,

Milligan’s claims would not qualify as per se prejudice. See United States v.

Cronic, 104 S. Ct. 2039, 2046–47 (1984). The district court correctly found that

Milligan failed to show any prejudice from his counsel’s failure to file a motion to

dismiss.

B.       Ineffective Assistance of Appellate Counsel

         Milligan next argues his appellate counsel was constitutionally ineffective

because his appellate counsel failed to raise the issue of his trial counsel’s

ineffectiveness on appeal. An ineffective assistance of appellate counsel claim is

considered under the same two-part test announced in Strickland v. Washington,

104 S. Ct. 2052 (1984). Grubbs v. Singletary, 120 F.3d 1174, 1175 (11th Cir.

1997).



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       Milligan’s appellate counsel could not be constitutionally ineffective

because this Court would not have heard his claim for ineffective assistance of trial

counsel on direct appeal. This Court does not consider claims of ineffective

assistance of counsel on direct appeal unless those claims were first raised in the

district court with an opportunity to develop a factual record relevant to the merits

of the claim. United States v. Perez-Tosta, 36 F.3d 1552, 1563 (11th Cir. 1994).

Milligan did not assert ineffective assistance of trial counsel prior to his direct

appeal. In fact, he stated he was satisfied with his counsel at his plea colloquy.

This Court would not have heard his claim on direct appeal; therefore, his appellate

counsel could not have been constitutionally ineffective for not raising the issue.

                                 III. CONCLUSION

       Based on the above discussion, Milligan’s claims for ineffective assistance

of trial and appellate counsel must fail. His failed to show his trial counsel’s error

caused him any prejudice. In addition, his appellate counsel could not have been

ineffective for not raising the ineffective assistance of trial counsel on direct appeal

because this Court would not have heard the claim. We, therefore, AFFIRM the

district court.

       AFFIRMED.




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