No Relief for Habeas Petitioner Raising Speedy Trial, IAC Claims

U.S. v. Taylor, --- F.3d ----, 2006 WL 1828525 (10th Cir. July 05, 2006)

The 10th denies a COA for P’s 2255 claims on ineffective assistance of counsel and violation of the Speedy Trial Act. (1) Speedy Trial Act violation was raised on direct appeal and rejected. Because P alleges only a violation of the statute, he does not raise a constitutional issue as required under AEDPA, and the COA will not issue. (2) All of P's IAC claims are without merit: (a) counsel cannot be held to have anticipated P filing pre-trial motions pro se that tolled the running of the speedy trial clock and because the tolling had no impact on the Speedy Trial appeal issue, failing to raise the tolling on appeal was immaterial; (b) P could not show that he would not have entered a guilty plea but for his attorney’s alleged underestimate of the guideline sentence he faced, since the plea agreement showed that he understood the court could sentence him to the maximum statutory sentence (plea papers trump all claims of promises of leniency???); (c) P cannot show counsel was ineffective for failing to challenge his career offender status–although P claimed earlier drug convictions should not have counted because his civil rights had been restored, he provided no proof of that; (d) counsel was not ineffective for failing to challenge the omission from the bank robbery indictment of an explicit allegation of general intent. “Ample authority supports the validity of the indictment. Courts have held that when commission of the charged acts strongly implies the actor's general intent, the indictment need not specifically allege that intent.”