                                                            [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________                    FILED
                                                             U.S. COURT OF APPEALS
                                 No. 04-16666                  ELEVENTH CIRCUIT
                                                                   JULY 6, 2005
                             Non-Argument Calendar
                                                                THOMAS K. KAHN
                           ________________________
                                                                     CLERK

          D. C. Docket Nos. 03-14333-CV-DLG & 00-14069 CR-DLG

RUBIN DEXTER BAXTER,
                                                             Petitioner-Appellant,

      versus

UNITED STATES OF AMERICA,

                                                              Respondent-Appellee.

                           ________________________

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

                                   (July 6, 2005)


Before BLACK, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

      Rubin Baxter, a federal prisoner serving a 235-month sentence for

possession of a firearm by a convicted felon, appeals the district court’s denial on
the merits of his 28 U.S.C. § 2255 petition challenging his conviction. Baxter

argues that his trial counsel was deficient for failing to file a pretrial motion to

dismiss the indictment on the basis that it was not obtained within the 30 day time

limit set forth in The Speedy Trial Act, 18 U.S.C. § 3161(b).1 He argues that the

relevant arrest occurred on August 30, 2000, and that the indictment was not

issued until 63 days later, on November 2, 2000. Alternatively, Baxter claims that

even if the magistrate was correct that the relevant arrest date was August 16,

2001, the indictment nevertheless “violate[d] the 30 day time limit for an

individual to be indicted after he was arrested.”

       In a proceeding on a motion to vacate, we review the district court’s factual

findings for clear error while legal issues are reviewed de novo. Castillo v. United

States, 200 F.3d 735, 736 (11th Cir. 2000).

       The Speedy Trial Act provides, in part, that: “Any information or 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 or served with a



       1
          Baxter also argues that the district court erred by failing to consider other claims raised
in his request for a Certificate of Appealability (“COA”). However, the magistrate did consider
his other claims. Although, Baxter attempts to raise these additional issues on appeal, we decline
to address them because they are not within the scope of the COA. See Murray v. United States,
145 F.3d 1249, 1251 (11th Cir. 1998). In his reply brief, Baxter seeks to expand the COA. We
deem this argument waived. United States v. Dicter, 198 F.3d 1284, 1289 (11th Cir. 1999)

                                                 2
summons in connection with such charges.” 18 U.S.C. § 3161(b). If the

indictment is filed after this time limit, the charges are to be dismissed or dropped

with or without prejudice, depending on the circumstances. 18 U.S.C.

§ 3162(a)(1).

      We have held that because the Speedy Trial Act only applies to federal

prosecutions, federalism concerns require that “it is only a federal arrest, not a

state arrest, which will trigger the commencement of the time limits set in the

Act.” United States v. Shahryar, 719 F.2d 1522, 1524 (11th Cir. 1983) (citations

omitted). We also have stated that “[f]or the time limit of the Act to commence a

person must be held for the purpose of answering to a federal charge.” Id. at

1254-55; see United States v. Russo, 796 F.2d 1443, 1451 (11th Cir.

1986)(citations omitted); United States v. Bell, 833 F.2d 272, 277 (11th Cir. 1987).

      The basis of Baxter’s Speedy Trial Act claim is relevant to whether his trial

attorney was constitutionally deficient because counsel cannot be considered

ineffective for failing to raise claims that lack merit. See Alvord v. Wainright, 725

F.2d 1282, 1291 (11th Cir. 1984).

      Upon review of the brief and record, we find no error in this respect. The

relevant arrest for purposes of this appeal occurred on August 16, 2001, such that

the “speedy trial clock” began to run on that date. Specifically, Baxter’s arrest on

                                          3
August 30, 2000, was by two St. Lucie County, Florida, sheriff’s deputies who

took him into state custody. His reliance on the fact that the arrest was in the

course of a multi-agency task force patrol is unconvincing because: (1) both

agencies involved in the task force were state agencies; and (2) even if a federal

agency had been involved in the investigation, it still could have been considered a

state arrest. See Russo, 796 F.2d at 1451. Accordingly, August 16, 2001, is the

date upon which he was taken into federal custody pursuant to a federal indictment

and arrest warrant. See Shahryar, 719 F.2d at 1542-25.

      Baxter’s alternative argument that § 3161(b) was violated because his

August 16, 2001, arrest occurred more than 30 days after the federal indictment

was issued is also without merit. The plain language of that section provides that

the time period begins to run “from the date on which such individual was

arrested.” 18 U.S.C. § 3161(b). Because the indictment was not issued more than

30 days after his arrest, Baxter’s trial counsel was not ineffective for failing to

raise this issue. See Alvord, 725 F.2d at 1291. Therefore, we affirm the district

court’s denial of Baxter’s § 2255 petition.

AFFIRMED.




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