944 F.3d 255
D.C. Cir.2019Background:
- McLendon was indicted in Sept. 1998 (Case No. 98-320); after scheduling/speedy-trial concerns the government obtained an identical indictment one day before a status hearing (Case No. 99-11).
- The trial court dismissed Case No. 98-320 without prejudice and the government prosecuted Case No. 99-11; McLendon was tried three times and ultimately convicted and sentenced.
- Trial counsel filed a motion that conceded no Speedy Trial Act (STA) violation and did not argue that the reindictment should be dismissed with prejudice; appellate counsel did not raise an STA-based ineffective-assistance claim on direct appeal.
- McLendon filed a § 2255 motion alleging ineffective assistance for failing to press the STA violation and for appellate counsel’s failures, arguing that obtaining dismissal with prejudice would have prevented reprosecution.
- The district court denied § 2255 relief, assuming counsel were deficient but holding McLendon failed to show Strickland prejudice because any STA dismissal would have been without prejudice and the government would have reindicted.
- The D.C. Circuit affirmed, assuming arguendo an STA violation and deficient performance but holding that dismissal without prejudice does not establish the required Strickland prejudice and that the statutory factors supported a dismissal without prejudice.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failing to obtain a dismissal without prejudice under the STA constitutes Strickland prejudice | McLendon: loss of a dismissal without prejudice plausibly changed outcome—government might not reindict, might offer plea, or a new trial might acquit | Government: dismissal without prejudice leaves only speculative possibilities; gov likely would reindict and reprosecute | Failure to obtain dismissal without prejudice does not, as a general matter, satisfy Strickland prejudice; hypotheticals insufficient |
| Whether the court would have dismissed Case No. 99-11 with prejudice under 18 U.S.C. § 3162(a)(2) | McLendon: government/court negligence and “subterfuge” (quick reindictment) support dismissal with prejudice | Government: offenses serious, delay brief, defendant’s conduct caused delay, gov repeatedly ready to proceed — factors favor without prejudice | De novo review: statutory factors (seriousness, circumstances, impact of reprosecution, and defendant’s limited showing of prejudice) support dismissal without prejudice |
| Whether alleged deficient performance by trial/appellate counsel warrants relief | McLendon: counsel’s failure to press STA or raise it on appeal prejudiced outcome | Government: even assuming deficiency, no reasonable probability of different result because reprosecution was likely | Court assumed deficiency but denied relief for lack of Strickland prejudice |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (establishes ineffective-assistance standard: deficient performance + prejudice)
- Zedner v. United States, 547 U.S. 489 (2006) (dismissal-with-prejudice is a strong deterrent but must not needlessly subvert prosecutions)
- United States v. Taylor, 487 U.S. 326 (1988) (§ 3162(a)(2) factors guide whether dismissal should be with or without prejudice)
- United States v. Wright, 6 F.3d 811 (D.C. Cir. 1993) (focus on reasons for government’s failure when choosing remedy)
- United States v. Rushin, 642 F.3d 1299 (10th Cir. 2011) (failure to obtain dismissal without prejudice not necessarily Strickland prejudice where reindicting likely)
- Sylvester v. United States, 868 F.3d 503 (6th Cir. 2017) (similar holding on lack of Strickland prejudice from failure to secure dismissal with prejudice)
- United States v. Miller, 799 F.3d 1097 (D.C. Cir. 2015) (discusses STA dismissal remedy and reprosecution)
- Bert v. United States, 814 F.3d 70 (2d Cir. 2016) (dismissal with prejudice may be warranted absent bad faith only in particularly neglectful or lengthy-delay cases)