                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-6977


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

LENDRO MICHAEL THOMAS,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, District Judge.
(1:03-cr-00189-JFM-1; 1:07-cv-02741-JFM)


Submitted:    December 17, 2008             Decided:   January 5, 2009


Before MICHAEL, KING, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Lendro Michael Thomas, Appellant Pro Se. John Francis Purcell,
Jr., Assistant United States Attorney, Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Lendro   Michael    Thomas    appeals         the   district    court’s

order denying his 28 U.S.C.A. § 2255 (West Supp. 2008) motion.

The district court granted Thomas a certificate of appealability

on his contention that his trial attorney was ineffective for

failing to move to dismiss the indictment pending against him

because of a violation of the Speedy Trial Act and Thomas’ Sixth

Amendment right to a speedy trial.               After a careful review of

the   record,   we    conclude    Thomas   did       not    receive    ineffective

assistance of counsel; accordingly, for the reasons discussed

below, we affirm the district court’s order.

             In April 2005, Thomas was convicted, following a jury

trial, of various drug and firearms offenses and was sentenced

to    204   months’   imprisonment.        Thomas      appealed,       and   in   an

unpublished     opinion,   this    court   affirmed         his   conviction      and

sentence.     See United States v. Thomas, 189 F. App’x 219 (4th

Cir. 2006) (No. 05-4496).

             Thomas   subsequently    filed      a    motion      to   vacate,    set

aside, or correct his sentence, pursuant to 28 U.S.C.A. § 2255,

raising multiple issues.          Relevant to this appeal, however, is

the single issue of whether Thomas’ attorney was ineffective for




                                      2
failing to object to the delay in trying Thomas. 1                             Construed

liberally, Thomas’ § 2255 motion raised this issue pursuant to

both the Speedy Trial Act (the “Act”), codified at 18 U.S.C.

§§ 3161-3174 (2006), and the Sixth Amendment.                        Thomas maintained

the    Government      exceeded      by   twenty-three        days    the    seventy-day

period allotted by the Act within which to try a defendant on

felony charges.           Thomas claimed he was prejudiced by this delay

because, prior to commencement of his trial, his co-defendant,

Edwin Matthews, died, and was unavailable to provide what Thomas

asserted would be exculpatory testimony.

              Citing      Barker     v    Wingo,     407    U.S.     514    (1972),     the

district court denied the claim, noting that, “[i]f for no other

reason,      Thomas’      Speedy    Trial   Act     claim    fails     because    he    has

demonstrated no prejudice resulting from the delay in bringing

him    to    trial.”       The     district       court    concluded       Matthews    died

before Thomas could viably assert his speedy trial right, and

that       Thomas   had     not    established       that     Matthews       would     have

testified at all or provided exculpatory testimony.

              Thomas filed a timely Fed. R. Civ. P. 59(e) motion for

reconsideration arguing that, because counsel’s failure to move

       1
       This is the sole issue we address because it is the single
issue on which the district court granted a certificate of
appealability,   and  Thomas   has  not   moved  to   expand  the
certificate of appealability to include any other issues.     4th
Cir. R. 22(a)(2).



                                              3
for a dismissal based on a violation of the Act was not subject

to   harmless        error     review,    counsel’s     error      was     presumptively

prejudicial under Strickland. 2                  Thomas further alleged actual

prejudice because, had counsel raised the issue, the indictment

would have been dismissed as violative of the Act.                          The district

court denied the motion in a margin order.

               Thomas       subsequently        filed   an       application       for     a

certificate          of    appealability        in   which    he        re-asserted      and

expanded the argument raised in his Rule 59(e) motion.                             Thomas

argued       the    district     court’s    conclusion       that       Thomas    did    not

establish          prejudice    was    debatable     because,       pursuant      to     the

Supreme Court’s decision in Zedner v. United States, 547 U.S.

489 (2006), a violation of the Act is not subject to harmless

error review, and other precedential authority established that

errors       not     subject     to    harmless      error    review        are   per    se

prejudicial under Strickland.                Thomas also reiterated his claim

of actual prejudice: being tried and convicted on an indictment

that       should    have    been     dismissed. 3      In   a     margin    order,      the

district      court       granted     Thomas’    request     for    a    certificate      of

appealability.

       2
           Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
       3
       Thomas asserted that, between his May 1, 2003 initial
appearance and his June 14, 2004 trial date, more than seventy
non-excludable days elapsed, in violation of the Act.


                                             4
            To     succeed      on        his   claim   that     his      attorney    was

ineffective      for    failing       to    seek    dismissal    of     the    indictment

based on the alleged speedy trial violation, Thomas must show

the failure on counsel’s part constituted deficient performance,

and that Thomas suffered prejudice as a result.                          Strickland v.

Washington, 466 U.S. 668, 687-88 (1984).                         Under Strickland’s

first    prong,     a    defendant          must     demonstrate        that    counsel’s

performance “fell below an objective standard of reasonableness”

under prevailing professional norms.                    Id. at 688.            To satisfy

the     second     prong,       a    defendant        must   show       “a     reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”                              Id. at

694.     “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.”                    Id.     Courts may bypass

the    performance      prong       and    proceed    directly     to    the    prejudice

prong when it is easier to dispose of the case for lack of

prejudice.       Id. at 697.

            A criminal defendant’s right under the Act is separate

and distinct from his Sixth Amendment right to a speedy trial.

See United States v. Woolfolk, 399 F.3d 590, 594-98 (4th Cir.

2005); United States v. Feurtado, 191 F.3d 420, 426 (4th Cir.

1999).     Analysis of a Sixth Amendment speedy trial claim is

governed by the Supreme Court’s holding in Barker, which sets

forth four factors to determining whether the right has been

                                                5
violated:       (1) the length of the delay; (2) the reason for the

delay; (3) the defendant’s assertion of his right to a speedy

trial;    and    (4)     the       extent      of       prejudice       to    the   defendant.

Barker, 407 U.S. at 530.

             Under the Act, a defendant facing felony charges must

be brought to trial within seventy days of the later of his

indictment or his initial appearance before a judicial officer.

18 U.S.C. § 3161(c)(1).                 If there is a violation of the Act,

upon     counsel’s      motion,         the        indictment          must   be      dismissed,

although the trial court has the discretion to determine whether

the    dismissal       is    with       or     without          prejudice.          18     U.S.C.

§ 3162(a)(2).          Neither type of dismissal is “the presumptive

remedy for a Speedy Trial Act violation.”                                 United States v.

Taylor, 487 U.S. 326, 334 (1988).                        Section 3162(a)(2) lists the

specific     factors        that    a    court          must     consider      when      deciding

whether to dismiss a case with or without prejudice due to a

Speedy Trial violation:                 “the seriousness of the offense; the

facts and circumstances of the case which led to the dismissal;

and the impact of a reprosecution on the administration of this

chapter and on the administration of justice.”                                  Although not

dispositive,      “the      presence          or       absence    of     prejudice       to   the

defendant”       is      also       “relevant             for      a     district         court’s

consideration,” and may be considered in conjunction with the

third factor.          Taylor, 487 U.S. at 334, 341; see also United

                                                   6
States v. Howard, 218 F.3d 558, 561-62 (6th Cir. 2000); United

States v. Pierce, 17 F.3d 146, 149 (6th Cir. 1994).                                    While

consideration       of    these    factors         guides    a   court’s     decision      to

dismiss    an   indictment        with    or       without    prejudice,         see   United

States    v.    Robinson,      389      F.3d       582,     588-90    (6th   Cir.       2004)

(conducting “substantive review” of record in light of statutory

factors and resulting prejudice to determine dismissal without

prejudice was appropriate), these factors are not determinative

in assessing whether there was a violation of the Act.                                    18

U.S.C. § 3162(a)(2); Zedner, 547 U.S. at 499.

            We first conclude counsel’s decision not to raise a

Sixth    Amendment       challenge      was    appropriate,          under   Barker,      and

thus his performance was not objectively unreasonable.                                 Little

more than a year passed between Thomas’ initial appearance and

commencement     of      his   trial     and,       according        to   Thomas,      almost

eleven months of that time was attributable to adjudication of

Thomas’ motion to suppress.                The fairly short delay would not

have triggered evaluation of Barker’s other factors.                                   United

States    v.    MacDonald,        635    F.2d       1115,     1117    (4th   Cir.       1980)

(concluding     a    seven-month         delay      was     “entirely      too    short    to

‘trigger’ further inquiry under Barker”).                         Accordingly, Thomas

fails to demonstrate he was prejudiced by counsel’s failure to

raise a Sixth Amendment challenge, because the result of the

proceeding would not have been different if counsel had done so.

                                               7
See Truesdale v. Moore, 142 F.3d 749, 756 (4th Cir. 1998) (“It

is certainly reasonable for counsel not to raise unmeritorious

claims. . . . [B]ecause these claims would have been dismissed

had they been raised, [the defendant] cannot show a reasonable

probability of any different outcome . . . .”).

               Nor was Thomas prejudiced by counsel’s failure to move

to dismiss the indictment based on the Act.                      The length of

delay, the seriousness of the narcotics and firearm charges, and

the   lack     of     evidence    of   prosecutorial   neglect   or    misconduct

causing the delay would have, at most, resulted in a dismissal

without prejudice.          United States v. Gardner, 488 F.3d 700, 719

(6th Cir. 2007); Robinson, 389 F.3d at 588 (concluding thirty-

one-day       delay,    “although       not   insubstantial,   was    not   severe

enough to warrant a dismissal with prejudice regardless of the

other circumstances”); United States v. Jones, 887 F.2d 492, 495

(4th Cir. 1989).           Moreover, Thomas was not prejudiced by the

delay       because    Matthews   was    unavailable   to   testify   as    of   his

death in June 2003, far before the alleged violation occurred. 4

Thus, counsel’s failure to raise the issue was not prejudicial.


        4
       For the first time in his Rule 59(e) motion, Thomas
asserted a new basis for prejudice:      that he was tried and
convicted on an indictment that should have been dismissed.
However, this is plainly a deviation from Thomas’ original basis
for prejudice — Matthews’ death prior to Thomas’ trial — and
thus was improperly raised in the district court for the first
time in his motion for reconsideration. “Rule 59(e) motions may
(Continued)
                                              8
            Accordingly, while we grant Thomas’ motion to strike

his   initial      informal     brief    and      to    replace    it   with     his

supplemental     informal     brief,     we    affirm    the   district       court’s

order denying Thomas’ § 2255 motion.                   We further deny Thomas’

motions    for   appointment     of     counsel    and    oral    argument.        We

dispense    with    oral      argument    because       the    facts    and    legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                          AFFIRMED




not be used . . . to raise arguments which could have been
raised prior to the issuance of the judgment, nor may they be
used to argue a case under a novel legal theory that the party
had the ability to address in the first instance.”   Pac. Ins.
Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.
1998).



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