United States District Court, N.D. Ohio, Eastern Division
OPINION AND ORDER
Aaron Polster United States District Judge.
the Court is Dongarra's Motion to Vacate Under 28 U.S.C.
§ 2255 (“Motion”). Doc #: 66. For the
following reasons, the Motion is summarily dismissed.
28, 2015, Jordon Louis Dongarra, pursuant to a written plea
agreement, pleaded guilty to two counts of Bank Robbery, in
violation of 18 U.S.C. § 2113(a), and one count of Using
or Carrying a Firearm During and in Relation to a Crime of
Violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i).
Doc #: 47. On November 6, 2015, Dongarra was sentenced to 92
months imprisonment. Doc #: 52. Dongarra challenged his
sentence on direct appeal. On September 23, 2016, the Sixth
Circuit granted the Government's motion to dismiss his
appeal, concluding that he had waived his right to appeal.
Doc #: 62. The Supreme Court denied Dongarra's petition
for a writ of certiorari on April 27, 2017. Doc #: 65.
Dongarra filed the instant Motion on April 19, 2018.
lists three bases for post-conviction relief: (1) his counsel
was ineffective for failing to move to dismiss the Indictment
and Superceding Indictment on Speedy Trial grounds; (2) his
Speedy Trial rights were violated; and (3) the Government and
the Court did not have jurisdiction over him because of the
violation of his Speedy Trial rights.
28 U.S.C. § 2255, a federal district court may grant
relief to a prisoner in custody under a sentence imposed by
that court “upon the ground that the sentence was
imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack . . . .” Id.
4(b) of the Rules Governing Section 2255 Proceedings requires
the judge to whom the 2555 petition is assigned to promptly
examine the petition. Rule 4(b) provides in pertinent part as
If it plainly appears from the face of the motion, and any
attached exhibits, and the record of prior proceedings that
the moving party is not entitled to relief, the judge must
dismiss the motion and direct the clerk to notify the moving
party. If the motion is not dismissed, the judge must order
the United States attorney to file an answer, motion, or
other response within a fixed time, or to take other action
the judge may order.
The Court has promptly examined the § 2255 Petition, the
record in the underlying criminal case, and the case law and
finds that it plainly appears that Jordon Louis Dongarra is
not entitled to relief in the district court for the
first argues that the Indictment and Superceding Indictment
were untimely and violated his Speedy Trial Act rights. Mot.
6-7. He argues that his counsel was ineffective for failing
to raise these issues. Id. Ineffective assistance of
counsel claims are sufficient bases to bring a collateral
proceeding under § 2255. Massaro v. United
States, 538 U.S. 500, 504 (2003). A defendant claiming
ineffective assistance of counsel must demonstrate that (1)
counsel's representation fell below an objective standard
of reasonableness and (2) that the deficient
performance prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 687-88 (1984) (emphases
added). “If it is easier [for the Court] to dispose of
an ineffectiveness claim on the ground of lack of sufficient
prejudice . . . that course should be followed.”
Strickland, 466 U.S. at 670. Dongarra cannot show
that his counsel's failure to move to dismiss the
Indictment or Superceding Indictment on Speedy Trial grounds
Speedy Trial Act requires the Government to file an
indictment within 30 days of a defendant's arrest. 18
U.S.C. § 3161(b). Dongarra was arrested on January 23,
2015. The Government did not file an Indictment against him
until 33 days later on February 25, 2015. So, Dongarra's
counsel could have moved to dismiss the Indictment under 18
U.S.C. § 3161(b). However, the Speedy Trial Act allows
the Government to re-file an indictment after dismissal as
long as the statute of limitations has not run on the
underlying offenses. 18 U.S.C. § 3161(d)(1). The
Indictment alleges that Dongarra committed one count of Bank
Robbery, in violation of 18 U.S.C. § 2113(a), and one
count of Using or Carrying a Firearm During and in Relation
to a Crime of Violence, in violation of 18 U.S.C. §
924(c)(1)(A)(i). Indict. 1-2. It alleges that he committed
these offenses on December 30, 2014. Id. Both of
these offenses have a five-year statute of limitations. 18
U.S.C. § 3282. Thus, if Dongarra's counsel had filed
a motion to dismiss the Indictment on Speedy Trial grounds,
the Government would have simply re-filed the Indictment.
Accordingly, Dongarra cannot show that he was prejudiced for
his counsel's failure to move to dismiss the Indictment
pursuant to 18 U.S.C. § 3161(b).
the Superseding Indictment did not change the original
charges so the Government filing it more than 30 days after
Dongarra's arrest did not violate the Speedy Trial Act.
See United States v. Berry, 90 F.3d 148, 151 (6th
Cir. 1996) Further, the Superceding Indictment was filed on
May 20, 2015, also well within the statute of limitations.
Doc #: 23. Thus, Dongarra ...