USA v. Slape, No. 18-41085 (5th Cir. 2022)
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In exchange for Defendant’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 Defendant pleaded guilty had been returned by a grand jury whose term had expired. At a plea hearing in which Defendant indicated satisfaction with his trial counsel’s performance and familiarity with the “grand jury mess-up[]” that had occurred in his initial case, Defendant 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.
Without conducting a hearing, the district court accepted a magistrate’s recommendation that Defendant’s Section 2255 motion be denied. The Fifth Circuit affirmed, holding that the expired grand jury’s untimely superseding indictment in Defendant’s first criminal case was null and void when jeopardy would have otherwise attached at Defendant’s jury trial and, accordingly, could not have placed Defendant in actual legal jeopardy within the meaning of the Double Jeopardy Clause. Because the failure of Defendant’s trial counsel to advise Defendant of a meritless double jeopardy argument was neither deficient nor prejudicial, the district court was correct to deny Defendant’s habeas corpus petition.
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