The opinion of the court was delivered by: Bucklo, District Judge.
MEMORANDUM OPINION AND ORDER
On June 13, 1997, Defendant Joseph Earl Cook pleaded guilty to
bank robbery in violation of 18 U.S.C. § 2113(a). No appeal was
filed. He was sentenced to 37 months in prison on September 10,
1997. Mr. Cook now brings this motion under 28 U.S.C. § 2255 to
vacate, set aside or correct his sentence on grounds of
ineffective assistance of counsel and violation of his right to a
speedy trial under 18 U.S.C. § 3161(b) and (c)(1). For the
reasons set forth below, the motion is denied.
Failure to Raise Claim on Direct Appeal
The government asserts Mr. Cook's claim of ineffective
assistance of counsel is procedurally barred because he did not
raise it on direct appeal. Such a claim can be raised for the
first time in a Section 2255 proceeding if it is based on
extrinsic evidence, United States v. Taglia, 922 F.2d 413, 418
(7th Cir. 1991), but the government maintains that is not the
case here. However, there is no indication Mr. Cook would have
had different counsel*fn1 on appeal, and that is another basis
for allowing an ineffective assistance claim to be raised first
collaterally. Id. Mr. Cook's ineffective assistance claim is
not procedurally barred.
Ineffective Assistance of Counsel Claim
Mr. Cook claims his indictment was not brought within 30 days
of his arrest as required by the Speedy Trial Act.
18 U.S.C. § 3161(b). He argues his counsel should have moved to dismiss the
indictment on that basis, and the failure to do so constituted
ineffective assistance of counsel. He also asserts an appeal
should have been filed.
Even if there were a Speedy Trial Act violation, which is
doubtful, Mr. Cook could not show a reasonable probability that,
but for his counsel's alleged error, the result of the
proceedings would have been different. Dugan v. United States,
18 F.3d 460, 463-64 (7th Cir. 1994); United States v.
Moya-Gomez, 860 F.2d 706, 763 (7th Cir. 1988) (citing
Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984)). Though a violation of 18 U.S.C. § 3161(b)
requires dismissal of the indictment, a district court is given
"great discretion" whether to dismiss with or without prejudice.
18 U.S.C. § 3162(a)(1); United States v. Fountain,
840 F.2d 509, 512 (7th Cir. 1988). Mr. Cook offers nothing to indicate his
indictment would have been dismissed with prejudice, especially
given the factors to be considered in making that determination,
18 U.S.C. § 3162(a)(1). Because Mr. Cook cannot show the result
of his proceedings would have been different (and thus that he
suffered prejudice), his ineffective assistance of counsel claim
must fail. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052.
Almost five months elapsed between Mr. Cook's arrest on October
29, 1996, and the bringing of an indictment on March 27, 1997.
However, much of that time was excluded (from Speedy Trial Act
computation) to allow completion of a mental examination
requested by Mr. Cook. 18 U.S.C. § 3161(h)(1)(A), (H). In
addition, the government was given an extension in March 1997
(under 18 U.S.C. § 3161(h)(8)(A)), and the indictment was brought
within the extension period. Nevertheless, Mr. Cook points to
several allegedly unexcluded days prior to the mental-examination
exclusion which, if counted, would mean the indictment was not
The Speedy Trial Act violation alleged here is cognizable in a
proceeding only if it constitutes a fundamental defect in the
trial resulting in a complete miscarriage of justice. See United
States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 60
L.Ed.2d 805 (1979); Hill v. United States, 368 U.S. 424, 428,
82 S.Ct. 468, 7 L.Ed.2d 417 (1962); United States v. Bailey,
No. 94 C 6832, 1995 WL 302441, at *8 (N.D.Ill. May 16, 1995). As
already indicated, Mr. Cook has shown no such defect. Moreover,
by pleading guilty Mr. Cook waived his right to assert Speedy
Trial Act violations. United States v. Andrews, 790 F.2d 803,
810 (10th Cir. 1986); United States v. Yunis, 723 F.2d 795, 796
(11th Cir. 1984); see Tollett v. Henderson, 411 U.S. 258,
266-67, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); (Plea Agreement ¶¶
Mr. Cook fails to show he was prejudiced by any alleged
ineffective assistance of counsel, and his Speedy Trial Act claim
is not within the scope of this proceeding. Accordingly, his
Section 2255 motion to vacate his sentence is denied. No
evidentiary hearing is required.
For the foregoing reasons, Mr. Cook's Section 2255 motion to
vacate his sentence is denied. No ...