10-2509-pr
United States v. Howard

                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 20th day of October, two thousand eleven.

Present:        ROSEMARY S. POOLER,
                RICHARD C. WESLEY,
                GERARD E. LYNCH,
                           Circuit Judges.

__________________________________________________________

UNITED STATES OF AMERICA,

                                 Appellee,

                          v.                                                       10-2509-pr

JOHN E. HOWARD, III, WILLIAM PENDELTON, AKA KASHIEM,
AKA WILLIAM PENDLETON, ROLAND RIGGINS, GLENN SMITH,
JR., AKA KABAR, DANIEL WILLIAMS, KENNETH GIBSON, AKA
KG, CHRISTOPHER RESTIFO, SANTIAGO CASTILLO, AKA
VICTOR, AFFIS CRUZ, JULIO SIERRA, AKA “P”,

                                 Defendants,

                          v.

REDMOND ANDRE MCKINNON, AKA BORN PRINCE,

                        Defendant-Appellant.
__________________________________________________________
For Appellant:                David L. Lewis, Lewis & Fiore, New York, N.Y.

For Appellee:                 Paul D. Silver (Terrence M. Kelly, on the brief), Assistant United
                              States Attorneys (of counsel), for Richard S. Hartunian, United
                              States Attorney for the Northern District of New York, Albany,
                              N.Y.

       Appeal from the United States District Court for the Northern District of New York
(Hurd, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Redmond Andre McKinnon appeals from a May 27, 2010, order of the United States
District Court for the Northern District of New York, denying his petition for a writ of habeas
corpus filed under 28 U.S.C. § 2255. On appeal, McKinnon argues that his counsel was
ineffective in violation of the Sixth Amendment for advising him to plead guilty instead of
challenging the federal drug charges against him on both statutory and constitutional speedy trial
grounds. In addition, McKinnon argues that the district court abused its discretion by not
holding a hearing on his habeas petition. Finally, he claims that his appellate counsel was
ineffective for not filing an Anders brief. See Anders v. California, 386 U.S. 738 (1967). We
assume that the parties are familiar with the underlying facts of the case and the issues on appeal.

        In reviewing “a district court’s denial of habeas relief, we review its legal determinations
de novo and its factual determinations for clear error.” Parisi v. United States, 529 F.3d 134,
137 (2d Cir. 2008). With regard to the denial of McKinnon’s request for a hearing on his habeas
petition, “[w]e review the . . . denial . . . for abuse of discretion.” Chang v. United States, 250
F.3d 79, 82 (2d Cir. 2001).

       Nearly three and a half years elapsed between McKinnon’s arrest on June 9, 2004, and
his eventual guilty plea on January 7, 2008. On appeal, McKinnon argues that his counsel
should have challenged his indictment by arguing that such a lengthy delay violated the Speedy
Trial Act of 1974 as well as the Sixth Amendment. As part of his plea agreement, however,
McKinnon “waive[d] any and all rights . . . to appeal or collaterally attack his conviction and any
sentence of imprisonment of 292 months or less.” Joint App. 62.

        “This Court has repeatedly upheld the validity of such waivers, with the obvious caveat
that such waivers must always be knowingly, voluntarily, and competently provided by the
defendant.” United States v. Gomez-Perez, 215 F.3d 315, 318 (2d Cir. 2000). A defendant may
only prevail on such an appeal if the plea itself “was not knowing and voluntary because ‘the
advice he received from counsel was not within acceptable standards.’” Parisi, 529 F.3d at 138
(emphasis added) (citation omitted). Therefore, while McKinnon’s waiver of appellate rights is
far-reaching, he may still claim that his plea did not “represent[] a voluntary and intelligent
choice among the alternative courses of action open to the defendant,” North Carolina v. Alford,
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400 U.S. 25, 31 (1970), given his trial counsel’s alleged failure to advise him of his right to a
speedy trial.

       Our review of McKinnon’s ineffective assistance claim is governed by Strickland v.
Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court held that in order for a
defendant to prevail on a claim of ineffective assistance, he “must show that counsel’s
representation fell below an objective standard of reasonableness,” id. at 688, and “that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different,” id. at
694.

        McKinnon makes three principal arguments challenging the exclusion of various periods
of time from his speedy trial clock. First, McKinnon argues that the Speedy Trial Act requires
that once a defendant – or even the government – makes a motion for severance in a joint trial,
any delays attributable to a co-defendant be reasonable. The Act specifically allows for “[a]
reasonable period of delay when the defendant is joined for trial with a codefendant as to whom
the time for trial has not run and no motion for severance has been granted.” 18 U.S.C.
§ 3161(h)(6) (emphasis added). In United States v. Vasquez, 918 F.2d 329 (2d Cir. 1990), this
Court held that the exclusion provision “requir[es] a defendant to make a motion for severance in
order to benefit from the reasonableness limitation.” Id. at 336 (emphasis added). McKinnon’s
argument is thus inconsistent with the holding in Vasquez.

       McKinnon next argues that the district court failed to sufficiently articulate its findings
and reasoning, as required under the Speedy Trial Act, before granting five ends-of-justice
delays of McKinnon’s trial. The Act grants a trial judge broad discretion to grant
“continuance[s] 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.”
18 U.S.C. § 3161(h)(7)(A). The Supreme Court has made clear that “the Act requires express
findings.” Zedner v. United States, 547 U.S. 489, 506 (2006) (emphasis added). A mere
“passing reference to [a] case’s complexity,” for instance, does not suffice. Id. at 507.

        The district court granted five ends-of-justice continuances that delayed McKinnon’s
trial. Each of the five continuances granted by the court was made in the form of a written order
that included specific findings that weighed in favor of delaying the trial. Although the findings
and reasoning in at least some of the district court’s orders were succinctly stated, the law does
not require an exhaustive account of the court’s thinking.

        McKinnon also argues that at least some of the time excluded from his speedy trial clock
because of pending pretrial motions, see 18 U.S.C. § 3161(h)(1)(D), was improperly excluded
because “[a] pretrial motion that itself does not actually cause a delay, or the expectation of a
delay in the trial, does not create excludable time.” Appellant’s Br. 40. The Supreme Court,
however, recently rejected that argument in United States v. Tinklenberg, 131 S. Ct. 2007 (2011),
aff’g on other grounds 579 F.3d 589 (6th Cir. 2009). In Tinklenberg, the Court held that a court
need not find that “the filing of the pretrial motion . . . actually caused or was expected to cause
delay of a trial” in order for the period between the motion’s filing and disposition to be
excludable under the Act. 131 S. Ct. at 2016.
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        In addition to the protections of the Speedy Trial Act, defendants are of course entitled to
the protections of the Sixth Amendment, which requires that “[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy . . . trial.” U.S. Const. amend. VI. In Barker v. Wingo,
407 U.S. 514 (1972), the Supreme Court articulated four factors to be considered in determining
whether a defendant’s constitutional right to a speedy trial had been violated: “Length of delay,
the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.”
Id. at 530.

       Of the Barker factors, only one weighs significantly in McKinnon’s favor. Around 43
months elapsed between McKinnon’s arrest in June 2004 and his guilty plea in January 2008. A
delay of nearly three and a half years, at least as a threshold matter, “is clearly enough to trigger
the constitutional analysis with respect to the other elements of the Barker test.” United States v.
New Buffalo Amusement Corp., 600 F.2d 368, 377 (2d Cir. 1979) (internal quotation marks
omitted) (finding that a “54-month delay between indictment and date of trial” was
“unquestionably substantial”).

        With regard to the reasons for the delay, the second Barker factor, a significant portion of
the delay in McKinnon’s trial was attributable to his own pretrial motions as well as ends-of-
justice continuances that McKinnon did not oppose. See Barker, 407 U.S. at 529. Furthermore,
the delay caused by the government’s interlocutory appeal of a suppression ruling was
reasonable given the strength of the government’s argument on appeal as evidenced by the fact
that the Second Circuit vacated the district court’s suppression order. See United States v. Loud
Hawk, 474 U.S. 302, 316 (1986).

      As to the third Barker factor, whether the defendant asserted his right to a speedy trial,
McKinnon concedes that this “factor . . . weighs against” him, given that “no formal assertion
was made” of his Sixth Amendment right. Appellant’s Br. 53.

        The fourth and final Barker factor, whether the defendant suffered prejudice as a result of
the delay in his trial, similarly does not weigh in McKinnon’s favor because other than
incarceration, McKinnon has neither alleged, nor established that he was prejudiced by the
delay. See Barker, 407 U.S. at 532.

         In addition to his ineffective assistance claim, McKinnon also argues that the district
court abused its discretion in denying him a hearing on his petition for a writ of habeas corpus.
Section 2255 requires that the court hold “a prompt hearing” on a defendant’s petition for habeas
relief, “[u]nless the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief.” 28 U.S.C. § 2255(b) (emphasis added). The question, in other
words, is whether a defendant’s “claim is . . . so clearly bereft of merit as to be subject to
dismissal on its face.” Chang, 250 F.3d at 85. But because this Court “disapproves of summary
dismissal . . . where factual issues exist[],” Pham v. United States, 317 F.3d 178, 184 (2d Cir.
2003), we have made clear that district court judges may take “a middle road,” short of granting
“a full-blown testimonial hearing,” by requesting that the parties submit additional evidence in
order to ensure that “the record [is] sufficient to support dismissal of the petition.” Chang, 250
                                                 4
F.3d at 85-86. Furthermore, in cases involving pro se petitions, a district court may rightly
exercise even greater caution before dismissing a petition without a hearing. See Pham, 317
F.3d at 186-87 (Sotomayor, J., concurring in the judgment).

         It is not clear whether the district court had the benefit of a careful analysis of the running
and tolling of McKinnon’s speedy trial clock – an admittedly complex calculus given the
sprawling number of motions, continuances, and docket entries involved. With that said, the
district court ultimately arrived at the correct result: McKinnon was not deprived of his right to a
speedy trial as guaranteed by federal law or the Constitution. Since, as discussed above, the
record on its face demonstrates conclusively that McKinnon’s speedy trial claim was without
merit, there was no need for a hearing. We still note, however, that even when a district court’s
calculations ultimately prove to be correct, the judicial process can only benefit from being able
to review its math.

        We have considered McKinnon’s remaining arguments and find them unpersuasive.

        For the foregoing reasons, the order of the district court denying McKinnon’s petition for
a writ of habeas corpus is AFFIRMED.


                                                FOR THE COURT:
                                                Catherine O’Hagan Wolfe, Clerk




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