Case 4:06-cr-00004-GMF Document 104 Filed 05/18/09 Page 1 of 15 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION MARK BRAMLETT, * Petitioner, * CASE NO. 4:07-CV-90025 CDL vs. * 28 U.S.C. § 2255 CASE NO. 4:06-CR-04 CDL UNITED STATES OF AMERICA, * Respondent. * REPORT AND RECOMMENDATION Indictment returned in this court on February 22, 2006, charged Petitioner Bramlett with Possession of More Than 50 Grams of Methamphetamine With Intent to Distribute in violation of 21 U.S.C.§ 841(a) and, as Count II, Possession of a Firearm by a Convicted Felon in violation of 18 U.S.C.§ 922(g) and (f). (Doc. 1). Bramlett was arraigned on March 27, 2006. (Doc. 20). He filed a Motion To Suppress on May 18, 2006. (Doc. 27). On August 3, 2006, Petitioner Bramlett filed his Amended Motion To Suppress. (Doc. 41). His Motion, as amended, was denied on August 14, 2006, and, at the same time, his case was set for trial to begin on September 5, 2006. (Doc. 43). He was tried and found guilty on Count I on September 11, 2006, and the Government dismissed Count II. (Doc. 50). Bramlett was sentenced on January 24, 2007, to a term of imprisonment of 121 months. (Doc. 64). None of these facts are disputed by either party. Petitioner Bramlett timely appealed his conviction and sentence, which was affirmed by the United States Court of Appeals for the Eleventh Circuit on August 29, 2007. (Doc. 78). The Circuit Court concluded in its decision that the district court properly denied Bramlett’s motion to suppress. Id. On December 5, 2007, and on March 27, 2008, Petitioner Bramlett filed petitions for the redress of grievances in the district court, which the parties concede are correctly treated as a timely Motion Case 4:06-cr-00004-GMF Document 104 Filed 05/18/09 Page 2 of 15 To Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. (Doc. 78, 83). New counsel was appointed to represent Petitioner Bramlett in his § 2255 motion and hearing. (Doc. 84). Hearing counsel amended Petitioner’s Motion to plead ineffective assistance of trial, sentencing, and appellate counsel. (Doc. 94). Discussion of Petitioner’s Claims 1. As his PART ONE to his Motion To Vacate, Set Aside, or Correct Sentence, as contained in his Document 79 at 2-6, Bramlett alleges a violation of the Speedy Trial Act and includes a Trial Calendar calculation showing a total of 162 days from his arraignment date until the inception date of his trial, excepting therefrom 13 days from the filing of his Motion To Suppress (Doc. 27) on May 18, 2006, until the Government filed its Response thereto on June 1, 2006 (Doc. 32). Bramlett concludes, without any statement of authority, that, “[T]hose 13 days are excludable.” Id. at 3. The court must agree that those 13 days are indeed excludable under 18 U.S.C.§ 3161(h)(1), which provides: The following periods of delay shall be excluded ... in computing the time within which the trial of (an indicted offense) must commence: (D) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion. However, the statute does not make the date of response by the Government the end time for the excludable event. Bramlett cites, as his authority on this issue, United States v. Foster, 836 F.2d 856, 859 (5th Circuit, 1988) , quoting, “The Supreme Court has made clear that when a motion is presented to the trial court, the court has 30 days to enter its ruling. 18 U.S.C.§ 3161(h)(1)(F),(J). Henderson v. United States, 476 U.S. 321, 106 S.Ct. 1871 (1986).”. (Doc. 79 at 5). Petitioner 2 Case 4:06-cr-00004-GMF Document 104 Filed 05/18/09 Page 3 of 15 Bramlett has placed undue limitation on the Henderson ruling. In its opinion, the Court stated: The Speedy Trial Act, 18 U.S.C.§ 3161 et seq. (1982 ed. and Supp. II), as amended in 1979 and in 1984, commands that a defendant be tried within 70 days of the latest of either the filing of an indictment or information, or the first appearance before a judge or magistrate. Section 3161(h)(1)(F) excludes from this time “delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or the prompt disposition of, such motion.” Henderson, 476 U.S. at 322. The Court held that, “Congress intended subsection (F) to exclude from the Speedy Trial Act’s 70-day limitation all time between the filing of a motion and the conclusion of the hearing on that motion, whether or not a delay in holding that hearing is ‘reasonably necessary.’ ” Id. at 330. Citing Henderson, 476 U.S. at 327-28, and United States v. Davenport, 935 F.2d 1223, 1228 (11th Cir. 1991), the United States Court of Appeals for the Eleventh Circuit explained in United States v. Dunn, 345 F.3d 1285 (11th Cir. 2003), the interactions of the various provisions of the Speedy Trial Act, stating as follows: For motions that require hearings, § 3161(h)(1)(F) excludes all time between the filing of the motion and the conclusion of the hearing at which it is addressed. This entire period is excluded from the speedy trial clock and is not subject to review regarding its reasonableness. Once the hearing is concluded, the motion is treated exactly like a motion for which no hearing is required. If the court has all materials necessary to rule on the motion, the court is deemed to have taken the motion under advisement immediately following the hearing and § 3161(h)(1)(J) permits no more than thirty additional days to be excluded. Id. at 1292. Petitioner Bramlett’s Motion To Suppress filed on May 18, 2006, was amended on August 3, 2006, after the Government had filed a Response, but before the court had held a hearing on the motion. (Doc. 41). Apparently, Bramlett felt that the court did not have all necessary 3 Case 4:06-cr-00004-GMF Document 104 Filed 05/18/09 Page 4 of 15 materials before it, inasmuch as he filed his Amended Motion To Suppress on August 3, 2006. The court heard and denied Petitioner’s Motion To Suppress and his Amended Motion To Suppress on August 14, 2006, and Petitioner’s trial began on September 5, 2006, with jury voir dire. (Doc. 43). Pursuant to the holding of United States v. Dunn, 345 F.3d 1285 (11th Cir. 2003), and its reliance upon Henderson v. United States, 476 U.S. 321, 106 S.Ct. 1871 (1986), all of the time beginning with the date of Petitioner’s filing of his Motion To Suppress on May 18, 2006, and including the court’s ruling thereon on August 14, 2006, is time excludable from the 70-day period allowed for trial in the Speedy Trial Act. See United States v. Twitty, 107 F.3d 1482, 1487-88 (11th Cir. 1997) (the excludable period includes the day the motion was filed and the day it was decided). The 70-day Speedy Trial period began on March 28, 2006, the day after Petitioner Bramlett was arraigned. This date is not contested, inasmuch as Petitioner counts only the elapse of four (4) days in March 2006. (Doc. 79 at 2). The running of the 70-day period was tolled with the filing of Petitioner’s Motion To Suppress on May 18, 2006, fifty-two (52) days having elapsed at that time. As noted above, the court denied Petitioner’s Motion To Suppress and his Amended Motion To Suppress on August 14, 2006. Pursuant to the authority cited above, this entire period of time was excludable from the 70-day period, of which 18 days remained after August 14, 2006. Petitioner’s trial was started on September 5, 2006, the fourth day after the expiration of the 70-day period provided in the Speedy Trial Act, with all excludable time fully calculated. It must also be noted that Saturday, September 2nd, Sunday, September 3rd, and Monday, September 4, 2006, were the National Labor Day holiday weekend. In United States v. Dunn, 345 F.3d 1285, 1296 (11th Cir. 2003), the Court ruled: The Supreme Court has identified four basic factors that courts should 4 Case 4:06-cr-00004-GMF Document 104 Filed 05/18/09 Page 5 of 15 consider in determining whether a defendant has been deprived of his constitutional right to a speedy trial: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant’s assertion of the right; and (4) the prejudice to the defendant. See Barker v. Wingo, 407 U.S. 514, 530-32, 92 S.Ct. 2182, 2192-93 (1972). As we have noted, the Court explained in Barker that “[t]he first factor serves a triggering function; unless some ‘presumptively prejudicial’ period of delay occurred, we need not conduct the remainder of the analysis.” United States v. Register, 182 F.3d 820, 827 (11th Cir. 1999) (citing Barker, 407 U.S. at 530, 92 S.Ct. At 2192). ... A delay is considered presumptively prejudicial as it approaches one year. See Doggett v. United States, 505 U.S. 647, 651-52 & n. 1, 112 S.Ct. 2628, 2690-91 & n. 1 (1992). ... [W]e are mindful that “ ‘[i]n this circuit, a defendant generally must show actual prejudice unless the first three factors ..