                                                                                    FILED
                                                                        United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                            Tenth Circuit

                                   TENTH CIRCUIT                              October 15, 2010

                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                             No. 10-1240
v.                                                (D.C. No. 1:08-CV-01438-REB and
                                                    1:04-CR-00103-REB-MEH-06)
MICHAEL D. SMITH,                                             (D. Colo.)

       Defendant - Appellant.




             ORDER DENYING CERTIFICATE OF APPEALABILITY
                       AND DISMISSING APPEAL


Before BRISCOE, Chief Circuit Judge, TACHA, and O'BRIEN, Circuit Judges.


       Michael D. Smith1 seeks leave to appeal from the district court’s denial of his 28

U.S.C. § 2255 motion to vacate, set aside or correct sentence. In it he claimed his

attorneys were ineffective in failing to appreciate and properly respond to what he views

as a Speedy Trial Act violation. 18 U.S.C. §§ 3161-3174.

       On March 10, 2004, an indictment was returned against Smith and six others

charging them with multiple counts of conspiracy and securities fraud. Smith made his




       1
        The district court granted Smith leave to appeal in forma pauperis (ifp). This
Court appointed counsel under the Criminal Justice Act (18 U.S.C.A. § 3006A).
initial appearance on March 12, 2004,2 and posted bond on March 31, 2004 (his release

on bond continued until his voluntarily surrender to the Bureau of Prisons on July 28,

2008). He was arraigned April 12, 2004, and pled not guilty .3 A joint jury trial4 began

April 2, 2007, and concluded on May 29, 2007. The jury found Smith guilty on three of

the seventeen counts alleged against him.

       At first blush it might appear a speedy trial problem may have been overlooked by

counsel, but closer review proves otherwise. Because Smith has not “made a substantial

showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his

request for a certificate of appealability (COA).

                                    I.   BACKGROUND

       Smith was convicted by a jury of three counts of securities fraud in violation of 15

U.S.C. §§ 77q(a), 77x, and 18 U.S.C. § 2 and was sentenced to 60 months imprisonment.

He filed a direct appeal and the government cross-appealed. However, the parties filed a

joint motion to dismiss the appeals, which this Court granted. See United States v. Smith,

Nos. 08-1246 & 08-1282 (10th Cir. July 16, 2009) (unpublished).

       Following dismissal of the appeals, Smith filed this § 2255 motion.5 It was



       2
           Smith’s brief sets his initial appearance on that date; we accept his assertion.
       3
        On October 25, 2005, Smith was re-arraigned pursuant to a second superseding
indictment. He entered a plea of not guilty. The last co-defendant was arraigned on
April 26, 2004.
       4
           Smith and three co-defendants were tried together.
       5
         Smith also filed several previous § 2255 motions claiming ineffective assistance
of counsel, the first before he was sentenced and the others during the pendency of his
direct appeal. The district court dismissed all three as premature and denied a COA. We

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supported by an affidavit of one of his two trial counsel, Declan O’Donnell, essentially

confessing his alleged ineffectiveness with respect to speedy trial issues.

       The district court held an evidentiary hearing wherein testimony was elicited from

both of Smith’s trial counsel, O’Donnell, whose role in the trial was minor (or at least

secondary) and Richard Stuckey, who was the primary trial attorney. In a cogent,

comprehensive and compelling decision, the district court concluded there was no

evidence presented “from which it could be concluded that any competent attorney, a

fortiori, one who was aware of the Speedy Trial Act of 1974 and its requirements at the

time and under the circumstances of this case[,] necessarily would have been required to

file a motion to dismiss the indictment on that basis to come within the wide range of

competence contemplated by Strickland.” (R. Vol. II at 180-81.) In arriving at this

conclusion, the court found O’Donnell’s testimony “to be entirely incredible and

unworthy of credence,” and described his role during the pretrial and trial stages as

“marginal.” (Id. at 178.) On the other hand, the court found Stuckey’s testimony

“credible.” (Id. at 174.) His testimony “demonstrate[d] that the prevailing view of

competent attorneys at the time was that the combined effect of [the district court’s] April

30, 200[4], ends-of-justice order and the numerous pending pretrial motions effectively

obviated any speedy trial concerns.” (Id. at 180.)

       The district court candidly admitted an apparent deficiency in its April 30, 2004




denied Smith’s request for a COA. See United States v. Smith, No. 09-1066 (May 13,
2009) (unpublished).

                                            -3-
ends-of-justice order6 in light of subsequent pronouncements by this Court in United

States v. Toombs, 574 F.3d 1262 (10th Cir. 2009), and United States v. Williams, 511

F.3d 1044 (10th Cir. 2007). Analyzing our holdings in Toombs and Williams, the district

court conceded its “open-ended [ends-of-justice order] . . . was not sufficient per se to

have warranted a nearly three-year continuance of the trial and that the significant lapse

of time between the filing and resolution of many of the numerous motions submitted in

this case was not entirely excludable either.” (R. Vol. II at 173.) Even though the ends-

of-justice order might not now comply with our pronouncements, the judge correctly

explained why such an issue did not render Smith’s trial counsel ineffective. See

Strickland v. Washington, 466 U.S. 668, 690 (1984) (“[A] court deciding an actual

ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on

the facts of the particular case, viewed as of the time of counsel’s conduct.”); see also

Dever v. Kan. State Penitentiary, 36 F. 3d 1531, 1537 (10th Cir. 1994) (same). In

particular, he said:

       While recognition of this understanding of the state of the law would not
       necessarily excuse a Speedy Trial Act violation in the first instance, it does
       pertain directly to the question whether counsel was ineffective for failing
       to perceive and advance the issue. For had Mr. O’Donnell appreciated the
       potential speedy trial issue, he would have been far more perspicacious than
       either this court or the approximately 15 other experienced criminal defense
       lawyers who were involved at one time or another in this case, including

       6
          On April 30, 2004, over Smith’s objection, the court granted a co-defendant’s
motion for declaration of complexity, concluding the case was complex and “the ends of
justice served by granting the motion outweigh the best interests of the public and the
defendants in a speedy trial within the meaning of 18 U.S.C. § 3161(h)(8)(A).” (R. Vol.
II at 78.) Over the course of approximately three years this “ends-of-justice order”
proved to be prescient – the case was not only complex, but contentious.

                                            -4-
       Mr. O’Donnell’s own co-counsel.

(R. Vol. II at 174-75.)

       Accordingly, the court concluded Smith did not meet the first prong of the two-

part test set forth in Strickland, 466 U.S. at 687 (plaintiff must show his attorney’s

performance (1) fell below an objective standard of reasonableness and (2) that the

unreasonably deficient performance resulted in prejudice).7 It also denied Smith’s

request for a COA.

                                  II.   DISCUSSION

       A COA is a jurisdictional prerequisite to our review of a petition for a writ of

habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA

“only if the applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). To make such a showing, an applicant must demonstrate

“that reasonable jurists could debate whether (or, for that matter, agree that) the petition

should have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S.

473, 484 (2000) (quotations omitted). In evaluating whether an applicant has satisfied

this burden, we undertake “a preliminary, though not definitive, consideration of the

[legal] framework” applicable to each of his claims. Miller-El, 537 U.S. at 338.

       We have undertaken a thorough review of Smith’s appellate brief in support of his

request for a COA, the district court’s detailed order denying Smith’s § 2255 motion, the


       7
        The district court also noted Smith had “utterly failed to address the prejudice
prong of Strickland.” (R. Vol. II at 181.)

                                            -5-
record, and the applicable law. Regardless of O’Donnell’s post hoc admissions, primary

trial counsel’s failure to move for a Speedy Trial Act dismissal did not fall below

objectively reasonable standards of attorney performance considering the circumstances

of this case and the then extant law. Counsel is required to be careful and competent, but

not prescient. Because jurists of reason could debate the correctness of the district

court’s decision, Smith is not entitled to a COA.

       We DENY Smith’s request for a COA and DISMISS this matter.

                                          Entered by the Court:

                                          Terrence L. O’Brien
                                          United States Circuit Judge




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