United States v. Rushin
2011 U.S. App. LEXIS 13170
10th Cir.2011Background
- Rushin and an accomplice robbed six Wichita convenience stores at gunpoint in August 2004.
- In December 2005, a jury convicted Rushin on six Hobbs Act robbery counts, multiple STA-related firearm offenses, and felon-in-possession; he received a 139-year sentence.
- This is Rushin’s second appeal, challenging § 2255 denial alleging ineffective assistance for failing to seek dismissal of the indictment under the Speedy Trial Act (STA).
- The district court granted several on-record ends-of-justice continuances; trial ultimately occurred on November 29, 2005.
- Rushin argued the district court failed to provide proper on-the-record STA findings, making the continuances invalid and the trial timing unlawful.
- The panel holds review de novo on the § 2255 record; the district court’s STA findings are central to the analysis, but the court affirms the conviction for reasons related to Strickland prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did counsel's failure to move to dismiss under the STA constitute deficient performance? | Rushin | Rushin | No; performance not deficient |
| Did counsel's failure to move for dismissal prejudice Rushin under Strickland? | Rushin | Rushin | No prejudice shown |
| May the district court's inadequate on-the-record ends-of-justice STA findings be treated as fatal regardless of prejudice? | Rushin | Rushin | STA violation acknowledged; not dispositive |
Key Cases Cited
- Zedner v. United States, 547 U.S. 489 (U.S. 2006) (on-record findings and ends-of-justice timing under STA)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong ineffective assistance standard)
- Harrington v. Richter, 131 S. Ct. 770 (U.S. 2011) (strong presumption of reasonable counsel performance)
- Abdush-Shakur, 465 F.3d 458 (10th Cir. 2006) (discretion to dismiss without prejudice under STA factors)
- Toombs, 574 F.3d 1262 (10th Cir. 2009) (on-record ends-of-justice findings must be detailed)
- Gonzales, 137 F.3d 1431 (10th Cir. 1998) (requirement of contemporaneous balance for STA continuances)
- Taylor, 487 U.S. 326 (U.S. 1988) (dismissal without prejudice preserves government ability to reprosecute)
- Saltzman, 984 F.2d 1087 (10th Cir. 1993) (delay and prejudice considerations under STA)
- Doran, 882 F.2d 1511 (10th Cir. 1989) (ends-of-justice continuances and timing flexibility)