Unpublished Disposition, 878 F.2d 387 (9th Cir. 1982)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 387 (9th Cir. 1982)

UNITED STATES of America, Plaintiff-Appellee,v.William Michael FRANCIS, Jr., Defendant-Appellant.

No. 87-1701.

United States Court of Appeals, Ninth Circuit.

Submitted*  March 13, 1989.Decided June 22, 1989.

Before HUG, CYNTHIA HOLCOMB HALL and O'SCANNLAIN, Circuit Judges.


MEMORANDUM** 

William Michael Francis appeals the district court's order dismissing his motion to vacate his sentence, 28 U.S.C. § 2255 (1982). We affirm.

Francis alleges several incidents of ineffective assistance of counsel. First, Francis claims his counsel provided incompetent professional assistance by failing to put on the testimony of two alibi witnesses. This claim is unpersuasive. The planned testimony of one of the alibi witnesses, Carls, contained a statement that he spent the day of the first robbery in Francis' company. This testimony directly counters Francis' assertion at trial that he spent the day in question with two other men, Espinoza and Camporillo, and no one else. Counsel can hardly be faulted for declining to put on the stand a witness whose testimony directly refutes the defendant's.

Counsel refused to put on the second alibi source, Francis' cohort Helton, on the ground that she appeared to be lying about Francis' involvement in the second robbery. Counsel's affidavit states that in the course of several interviews Helton told different and conflicting stories about the robbery, and that eye witness accounts ran against Helton's assertion that Francis had not been involved in the second crime. As a general rule, refusal by counsel to put on a witness for the defense whose testimony appears with good reason to be of doubtful probity does not constitute ineffective assistance. See McDonald v. United States, 282 F.2d 737, 740-41 (9th Cir. 1960); see also Strickland v. Washington, 466 U.S. 668, 690 (1984) ("strategic choices made after thorough investigation ... are virtually unchallangeable"). In this case, counsel's doubts about Helton's testimony strike us as reasonable. Declining to use it, consequently, was not error.

Second, Francis claims that his counsel denied him effective assistance by failing to move for dismissal under the Speedy Trial Act ("STA"), 18 U.S.C. §§ 3161-3174 (1982 & Supp. V 1987). Francis' 70-day period under the STA began running on March 3, 1982, the day he was first indicted.1  He went to trial on June 22, 1982, 111 days after the indictment. Forty-one days of time, therefore, must be found excludable to bring Francis within the period of delay allowed under the STA. If Francis endured unpermitted delay before reaching trial, his counsel may have been derelict in not seeking a dismissal under section 3162(a) (2) of the Act.

After examining the record, we find that Francis did not suffer an STA delay. The docket sheet shows that twelve days running from March 24 to April 15 were excluded on pretrial motion grounds. See 18 U.S.C. § 3161(h) (1) (F) (1982). The record also shows that the district judge excluded thirty days running from April 28 to May 28 to allow Francis time to prepare for trial on the two new charges added by the superseding indictment. Under the STA, the trial judge may classify as excludable delay a continuance sought by either party's counsel or granted on the judge's own motion if the judge finds that excusing the delay serves the ends of justice. 18 U.S.C. § 3161(h) (8) (A) (1982). The judge must set forth orally or in writing the reason for the finding. Id. In this case, Francis, after chafing a bit at the prospect of delay, allowed his counsel to seek a 30-day continuance to respond to the second indictment. The trial judge stated on the record that he found the continuance necessary to allow the defense preparation time and therefore deemed the extension excludable under section 3161(h) (8) (B) (iv). We hold that the judge satisfied his obligation under section 3161(h) (8) (A). Adding together the two stretches of excludable delay, we conclude that forty-two days of the 111-day period were properly excluded from the STA clock. Francis went to trial on day sixty-nine of the 70-day count. He did not suffer an STA violation.

In light of this conclusion, we cannot find that Francis' counsel was remiss in not filing a motion to dismiss under the Act. We see no ineffective assistance here.

In addition to the STA claim, Francis alleges infringement of his sixth amendment right to a speedy trial. Under Barker v. Wingo, 407 U.S. 514, 530 (1972), we consider four factors in determining whether a defendant has been deprived of his constitutional right to a speedy trial: (1) length of delay; (2) reason for delay; (3) defendant's assertion of the right; and (4) prejudice suffered. Length of delay is the threshold factor. Unless the delay was sufficiently long to be presumptively prejudicial, investigation of the other concerns is unnecessary. Barker, 407 U.S. at 530; United States v. Sears, Roebuck and Co., 866 F.2d 1128, 1133 (9th Cir. 1989). We note that a period of delay insufficient to trigger sanctions under the STA is unlikely to violate the sixth amendment. See United States v. Nance, 666 F.2d 353, 360 (9th Cir.), cert. denied, 456 U.S. 918 (1982).

We find no unconstitutional delay here. As noted above, Francis went to trial 111 days after indictment. Our circuit has held that a delay of this length is not presumptively prejudicial. United States v. Salsedo, 607 F.2d 318, 319-20 (9th Cir. 1979). As we also noted above, forty-two days of this period, and possibly more, were attributable to pretrial motions pursued by Francis' counsel and to the defense's request for a continuance. Under these circumstances, we find no sixth amendment violation.

Francis' next ineffective assistance claim involves his counsel's failure to file a timely petition of certiorari in the United States Supreme Court. This contention is meritless. A criminal defendant does not have a constitutional right to counsel to pursue an application for review in the Supreme Court. Ross v. Moffitt, 417 U.S. 600, 612 (1974). Since Francis has no right at all to counsel in this context, he cannot claim deprivation of effective assistance. See Wainwright v. Torna, 455 U.S. 586, 587-88 (1982).

Finally, Francis contends that the government suppressed prior inconsistent witness identification statements and used an overly suggestive line-up procedure, and that his counsel improperly failed to investigate these problems. After due consideration of the record, we find no merit in any of these claims.

The district court order is AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Because we find no speedy trial violation in relation to the original and older indictment, we do not consider the effect of the superseding indictment on the STA calculations