UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CORY HAYS SLAPE, Defendant-Appellant.
No. 18-41085
United States Court of Appeals for the Fifth Circuit
August 12, 2022
Before RICHMAN, Chief Judge, and CLEMENT and ENGELHARDT, Circuit Judges.
Appeal from the United States District Court for the Eastern District of Texas, USDC No. 4:17-CV-22. FILED August 12, 2022, Lyle W. Cayce, Clerk.
Defendant-Appellant Cory Hays Slape appeals the district court‘s denial of his
For the reasons that follow, we AFFIRM.
I
A
In 2011 and 2012, Cory Hays Slape dealt heroin and marijuana to a group of regular customers. Slape‘s most notable patron was a 16-year-old girl who overdosed on heroin she purchased from Slape, but thankfully survived her resulting brush with death. Searches of Slape‘s car and bedroom uncovered three guns and a full complement of drug-dealing paraphernalia.
In April 2012, a federal grand jury charged Slape with conspiracy to distribute and possess with intent to distribute more than 100 grams but less than one kilogram of heroin. In April 2013, the same grand jury returned a superseding indictment including three additional firearms charges and alleging that the same drug-dealing conspiracy involved a higher quantity and greater mix of illicit drugs. After initially pleading not guilty, Slape pleaded guilty at trial. In exchange for Slape‘s guilty plea on the superseding indictment‘s principal drug-dealing charge (“Count 1“), the Government dismissed all other charges. The parties stipulated to a recommended prison sentence of 240 months. The district court followed the parties’ sentencing recommendation and dismissed all remaining counts in the superseding indictment “on the motion of the United States.”
Some months later, the Government discovered the procedural snag at the heart of this case: the superseding indictment to which Slape pleaded guilty had been returned by a grand jury whose term had expired. The Government promptly notified Slape-who was then incarcerated in Arkansas-of the mistake. In April 2015, Slape‘s appointed counsel informed him that the Government was “prepared to offer” him a 144-month sentence if he pleaded guilty to the original indictment, which had been returned during the grand jury‘s rightful term.1
Unfazed by its mix-up, the Government persisted in its efforts to prosecute Slape. In May 2015, a new grand jury returned a new indictment charging Slape with the same drug-dealing conspiracy alleged in Count 1 of the original grand jury‘s untimely superseding indictment. Conceding “that the indictment to which the defendant was convicted and sentenced [was] invalid because it was returned by a grand jury whose term had expired,” the Government moved to dismiss that indictment. The district court granted the Government‘s motion and dismissed the faulty superseding indictment without prejudice.
In October 2015, Slape struck a new plea deal with the Government. In a revised plea agreement, Slape agreed to plead guilty to an information charging him with conspiracy to distribute and possess with intent to distribute a lesser quantity of heroin than that alleged in Count 1 of the faulty superseding indictment he was originally convicted and sentenced on. This time, however, the parties
The parties recommend that the Court include the following in the judgment: “The defendant is hereby committed to the custody of the Attorney General for a 144-month term of incarceration. In reviewing the defendant‘s eligibility for prior custody credit in accordance with
18 U.S.C. § 3585(b) , the Bureau of Prisons shall evaluate time defendant spent in custody in [connection with the prior federal criminal action against him]. The indictment in that case has been dismissed as void. The Court finds that the offense for which defendant spent time in custody [in that case] is the same offense as that for which sentence is imposed in this case. Insofar as necessary to have the same effect as if the term began on the original date of imposition, and in accordance with Sentencing Guideline 5G1.3, the 144-month term shall be reduced by the amount of prior custody credit that is unable to be applied as a result of18 U.S.C. § 3585(b) for the period of confinement between the date of imposition of the original term for this offense and the date of this judgment.”
At a plea hearing in which Slape indicated satisfaction with his trial counsel‘s performance and familiarity with the “grand jury mess-up[]” that had occurred in his initial case, Slape pleaded guilty in accordance with the new plea agreement. The district court then imposed the 144-month sentence the parties agreed to and noted for the record the key terms of the provision quoted above.
B
While serving his revised prison sentence in 2017, Slape filed a
Without conducting a hearing, the district court accepted a magistrate‘s recommendation that Slape‘s
II
We begin with Slape‘s ineffective assistance of counsel claim. The legal standard for Sixth Amendment ineffective-assistance claims is familiar and exacting. To prevail on an ineffective-assistance claim, a convicted defendant must show both (1) deficient performance and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). “The proper standard for attorney performance is that of reasonably effective assistance,” and “an error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a
In this case, Slape fails to make either of Strickland‘s twin showings. Start with “deficient performance.” Slape‘s argument on this issue is straightforward and reducible, in essence, to the following tautology: (1) Slape‘s trial counsel was ineffective in failing to inform him of a glaring double jeopardy issue that reasonably effective counsel would have used to fatally undermine the legal basis for Slape‘s second guilty plea; and (2) the failure of Slape‘s trial counsel to raise or advise of this glaring issue subjected Slape to a Fifth Amendment double jeopardy violation that renders his present conviction invalid.
However you slice it, Slape‘s argument rests on a fundamental assumption: namely, that a double jeopardy issue that any reasonably effective lawyer would have noticed and advised his client of in fact existed in the first place. We hold today that such an issue did not exist in Slape‘s case, but it bears noting that we need not do so to reject Slape‘s argument for deficient performance.
Strickland‘s deficiency prong requires defendants to “demonstrate that [their] attorney‘s performance fell below an objective standard of reasonableness.” United States v. Herrera, 412 F.3d 577, 580 (5th Cir. 2005). “This reasonableness standard requires counsel ‘to research relevant facts and law, or make an informed decision that certain avenues will not prove fruitful,‘” United States v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000) (quoting United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999)), which in turn demands that “solid, meritorious arguments based on directly controlling precedent be discovered and brought to the court‘s attention.” Williamson, 183 F.3d at 463 (cleaned up). Because no such arguments and “directly controlling precedents” were available to Slape‘s trial counsel here,2 he could not have flunked this test. As we‘ve consistently observed, the Sixth Amendment‘s reasonableness standard does not require counsel to guess correctly on questions of first impression, but merely to present “directly controlling precedents” in support of meritorious arguments their clients might beneficially advance. See, e.g., Williamson, 183 F.3d at 462-63. There is no indication here that Slape‘s trial counsel failed to meet this modest professional obligation, and as a result, there is no indication that Slape received constitutionally deficient representation.
Moreover, Slape‘s trial counsel cannot possibly be deemed ineffective for an even more fundamental reason: because ineffective assistance of counsel cannot arise from the “failure to raise a legally meritless claim,” and-as we hold below-Slape‘s double jeopardy argument is just that. See Smith v. Puckett, 907 F.2d 581, 585 n.6 (5th Cir. 1990) (“Counsel is not deficient for, and prejudice does not arise from, failure to raise a legally meritless claim.“).
III
Slape‘s argument that a double jeopardy violation occurred is similarly straightforward and unavailing. As Slape contends, the “Fifth Amendment‘s Double Jeopardy Clause protects against a second prosecution for the same offense after conviction,” as well as “multiple punishments for the same offense,” and both of those things
This claim is eye-catching in the abstract-particularly considering the Government‘s fault in bungling Slape‘s original case-but it withers under closer examination. As the Government correctly notes, the Double Jeopardy Clause3 requires more than the mere appearance of a successive prosecution and/or punishment; it requires defined instances of the “attachment” and “termination” of a valid course of prosecutorial jeopardy.
See United States v. Garcia, 567 F.3d 721, 730 (5th Cir. 2009) (“In the successive prosecution context, the authorities hold that a defendant‘s double jeopardy concerns arise only after original jeopardy attaches and terminates.“). Here, neither attachment nor termination occurred in the Government‘s initial prosecution of Slape-however ham-fisted it may have been.
In a jury trial, “jeopardy attaches when the jury is empaneled and sworn.” United States v. Stricklin, 591 F.2d 1112, 1120 (5th Cir. 1979). As a result, because Slape went to trial on the 2013 superseding indictment before deciding to plead guilty midtrial, it might appear at first glance that jeopardy did attach in the course of Slape‘s initial prosecution. “But this is not an ordinary case,” the Government asserts, “because the 2013 [superseding] indictment was void from the outset.”
The Government is correct. We have never held directly that an indictment returned by a defunct, out-of-term grand jury is void ab initio, but at least two other circuits have,4 and we join those circuits in doing so today. Our determination that an out-of-term grand jury‘s indictment is void ab initio-meaning “null from the beginning,”5 and therefore without legal effect-accords with the well-established rule that a federal grand jury loses all legal authority at the conclusion of its term, which may run for a maximum of twenty-four months. See
There are good practical reasons for such a rule as well. For starters, the Supreme Court and this court have consistently placed substantive and technical realities ahead of mere appearances in double jeopardy cases. As both courts have observed, the mere appearance of a successive prosecution-and even the erroneous
Importantly-and as would be true in any similar case-our recognition of the voidness ab initio of the faulty indictment on which Slape was initially sentenced affronts neither of “the twin aims of the Double Jeopardy Clause: protecting a defendant‘s finality interests and preventing prosecutorial overreaching.” United States v. Brune, 991 F.3d 652, 659 (5th Cir. 2021) (quoting United States v. Patterson, 406 F.3d 1095, 1097 (9th Cir. 2005) (Kozinski, J., dissenting from denial of rehearing en banc)). Put simply, this is not a case where Slape‘s finality interests were offended by a successive prosecution-indeed, Slape was not acquitted but later reindicted by pesky prosecutors, but was actually benefited by the Government‘s mistake, which resulted in an 8-year reduction in the sentence Slape ultimately received for the very same crimes. Nor is this a case of prosecutorial overreach-indeed, in admitting its mistake and promptly pursuing a valid reindictment, the Government ensured that Slape was held accountable for his serious criminal conduct but also treated fairly and rewarded with sentencing credit for all time erroneously served. As such, this is a far cry from the paradigmatic double jeopardy scenario the ratifiers of the Fifth Amendment envisioned. There, the Government makes “repeated attempts to convict an individual, thereby exposing him to continued embarrassment, anxiety, and expense, while increasing the risk of an erroneous conviction or an impermissibly enhanced sentence.” Ohio v. Johnson, 467 U.S. 493, 498-99 (1984). Here, prosecutors admitted an honest (and nonprejudicial) mistake while ensuring that Slape was held accountable for serious criminal charges he voluntarily pleaded guilty to.
Slape‘s counterarguments fall flat. The sole case Slape relies on in support of his position is the Eleventh Circuit case of United States v. McIntosh, 580 F.3d 1222 (11th Cir. 2009). There, the Eleventh Circuit found a double jeopardy problem with the Government‘s voluntary dismissal of an indictment bearing the relatively benign and nonfatal flaw of an incorrect date. Id. at 1225-29. Citing Supreme Court cases including Ball (supra), the court acknowledged that a ”fatal defect in an indictment may permit a second indictment,” but simply concluded that the voluntarily dismissed indictment at issue “did not contain that kind of flaw.” Id. at 1228 (emphasis added). For that reason, McIntosh actually supports the Government‘s position in this case. As noted above, there is abundant reason to deem the flaw at issue here a fatal one-and, thus, the kind of flaw that places a case within the class of void prosecutions that are legally incapable of placing a defendant in genuine criminal jeopardy.
*
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It follows from the rule we‘ve announced today that the expired grand jury‘s untimely superseding indictment in Slape‘s first criminal case was null and void when jeopardy would have otherwise attached at Slape‘s jury trial and, accordingly, could not have placed Slape in actual legal jeopardy within the meaning of the Double Jeopardy Clause. Because the failure of Slape‘s trial counsel to advise Slape of a meritless double jeopardy argument was neither deficient nor prejudicial, the district court was correct to deny Slape‘s habeas corpus petition.
AFFIRMED.
KURT D. ENGELHARDT
UNITED STATES CIRCUIT JUDGE