United States v. Slape, 44 F.4th 356

Background

In 2011–2012 Slape sold heroin and marijuana; a federal grand jury returned a 2013 superseding indictment charging a drug conspiracy (plus firearms counts).
Slape proceeded to trial, pleaded guilty midtrial to the superseding indictment’s principal drug count, and was sentenced to 240 months; other counts were dismissed.
The Government later discovered the 2013 superseding indictment had been returned by a grand jury whose term had expired; it moved to dismiss that indictment as void.
In 2015 a new valid indictment was returned; Slape accepted a new plea to an information and received a reduced 144‑month sentence with a provision addressing prior custody credit.
Slape filed a 28 U.S.C. § 2255 petition arguing trial counsel was ineffective for failing to raise a double jeopardy defense based on the earlier conviction; the district court denied relief and the Fifth Circuit affirmed.

Issues

Issue	Plaintiff's Argument (United States)	Defendant's Argument (Slape)	Held
1. Was trial counsel ineffective under Strickland for failing to raise a double jeopardy claim?	Counsel was not deficient because no meritorious double jeopardy claim existed.	Counsel was ineffective for failing to advise/raise the double jeopardy bar to the 2015 prosecution.	Held: No ineffective assistance — failure to raise a meritless claim is not deficient and Slape showed neither deficiency nor prejudice.
2. Did the Double Jeopardy Clause bar reprosecution because jeopardy attached and terminated in the first prosecution?	Jeopardy did not attach/terminate in a legally operative way because the initial proceeding rested on a void indictment.	Jeopardy attached when the jury was empaneled and terminated with conviction/sentence, so reprosecution was barred.	Held: No double jeopardy bar — the initial indictment was void so jeopardy never attached in a legally cognizable sense.
3. Is an indictment returned by an expired grand jury void ab initio?	Yes; an expired grand jury lacks authority so its indictment is null and of no legal effect.	Slape argued the prior conviction nonetheless created double jeopardy protections.	Held: An expired grand jury’s indictment is void ab initio; such a fatal defect prevents attachment of constitutional jeopardy.
4. Was Slape prejudiced by counsel’s failure to raise double jeopardy (i.e., would relief have followed)?	No — because the double jeopardy claim lacked merit, Slape cannot show Strickland prejudice.	Yes — failing to raise double jeopardy exposed Slape to a second prosecution and sentence.	Held: No prejudice; the double jeopardy theory would not have succeeded, so no Strickland relief.

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishing the two‑part ineffective‑assistance standard)
Ball v. United States, 163 U.S. 662 (an acquittal or conviction by a court lacking jurisdiction is void and does not bar subsequent prosecution)
United States v. Garcia, 567 F.3d 721 (5th Cir.) (successive‑prosecution double jeopardy requires actual attachment and termination of jeopardy)
United States v. Macklin, 523 F.2d 193 (2d Cir.) (indictments by powerless grand juries are void ab initio)
United States v. Bolton, 893 F.2d 894 (7th Cir.) (same: invalid grand jury actions render indictment a nullity)
United States v. McIntosh, 580 F.3d 1222 (11th Cir.) (distinguished — defendant’s relied‑on case found no fatal defect in the challenged indictment)
United States v. Brune, 991 F.3d 652 (5th Cir.) (discussing Double Jeopardy’s twin aims of finality and preventing prosecutorial overreaching)
Smith v. Puckett, 907 F.2d 581 (5th Cir.) (failure to raise legally meritless claims cannot constitute ineffective assistance)