* After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). Th e case is therefore submitted without oral argument. This Or der and Judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 24 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DARIAN HUNTER, Defendant-Appellant. No. 00-1434 (D.C. No. 96-CR-419-10-D) (D. Colo.)

ORDER AND JUDGMENT *

Before EBEL , KELLYand LUCERO , Circuit Judges.
Darian Hunter appeals the denial of his motion thatthe government violated his statutory and constitutional rights to a speedy trial. We find the delay between his first appearance before a magistrate an d the disposition of his case was largely of his own making. Consequently, we AF FIRM.- 2 - BACKGROUND On October 23, 1996, the government issued a five-c ount indictment against Larry Charles Moore for his involvement as the leader of a drug trafficking ring. On November 21, 1996, the govern ment filed a superseding indictment, adding seven other defendants. On May 20, 1998, the government filed a second superseding indictment, adding Defen dant-Appellant Darian Hunter. (Vol. I: 454.) On June 15, 1998, Hunter made his first appearance in court on this matter, before Magistrate Judge Richard M. Borchers. (Vol. I: 480.) On June 24, Hunter was arraigned, pled not guilty, and was remanded to custody. (Vol. I: 494.) At his arraignment (Vol. IV at 2 (transcript of arraignment)) and in the Discovery Conference Memorandum and Order, filed the same day(Vol. I: 493 at 9), Hunter was informed that before he had been indicted, the court had designated the case “complex” for purposes of the Speedy Trial Act, 18 U.S.C. § 3161(h)(8)(B)(ii). (Vol. I:82.) On August 3, Hunter filed 17 motions, including a m otion to join in his codefendants’ motions. (Vol. I, index: 511-529; see a lso Vol. I:540 (listing Hunter’s motions).) Hunter made numerous other motions, app roximately 45 in all, throughout the litigation (May 1998 - June 2000). ( See Answer Brief, Attachment 2 (summary of Hunter’s motions).) In addition, Hunter and his co-defendant,- 3 -

Michael Crumpton, sought changes of counsel on a nu mber of occasions. (See, generally , Supp. Vol. I, index: 700 -761.) On December 23, 1999, Hunter filed a motion to dism iss the indictment for violation of his speedy trial rights. (Vol. II: 806 .) The court issued an order denying that motion on February 8, 2000. (Vol. II: 830.) In that order, the court noted that many of the motions which Hunter had mad e on August 3, 1998, were still pending. (Vol. II: 830.) On March 10, 2000, the court issued an order which disposed of all of Hunter’s outstanding motions at that time. (Vol. II: 847.) On March 24, 2000, Hunter filed his first notice of disposition, requesting to change his plea from not guilty to guilty. (Supp . Vol. I, index: 851.) On April 14, the court stated on the record that the p revious day’s (4/13) status conference had made it unclear whether Hunter had i ndeed decided to change his plea. (Supp. Vol. I, index: 857.) This statement w as made amidst another attempt by Hunter to change lawyers. (Supp. Vol. I, index: 857.) The court advised the parties that, in the event Hunter’s notice of dispo sition was withdrawn, it would schedule a hearing to prepare the case for trial. ( Supp. Vol. I, index: 857.) On April 27, after permitting Hunter to change lawy ers, the court ordered Hunter’s new lawyer to advise it by May 22 whether Hunter still planned to go ahead with his change of plea as had originally bee n scheduled. (Supp. Vol. I,- 4 -

index: 861.) On May 22, Hunter confirmed that he i ntended to change his plea from not guilty to guilty. (Supp. Vol. I, index: 86 2.) On May 23, the court rescheduled the change-of-pleahearing from June 8 to June 27. (Supp. Vol. I, index: 863.) On June 27 , 2000, Hunter changed his plea before the court. (Supp. Vol. I, index: 878.) Hunt er’s plea agreement, filed June 23, 2000, permitted him to enter a conditional plea of guilty, reserving the right to appeal the court’s denial of his motion to dismiss the indictment on the ground that his rights to a speedy trial had been v iolated. (See Answer Brief, Attachment 1 (Plea Agreement).)

DISCUSSION Hunter asserts that the government violated his statutory right to a speedy trial under the Speedy Trial Act, 18 U.S.C. §§ 3161 to 3174, and his constitutional right to a speedy trial pursuant to the Sixth Amendment. In addition, he appends two more claims: first, that the government violated his Fifth Amendment right of due process by intentionally del aying his indictment; and second, that Hunter’s trial counsel provided ineffe ctive assistance by not asserting Hunter’s rights to a speedy trial.1 In addition to the time a motion is pending, the Co urt pointed out that

§ 3161(h)(1)(J) excludes up to 30 more days after ahearing on pre-trial motions when the court has taken the matters “under advisem ent.”

2 Hunter never clarifies what relief he believes he i s entitled to. - 5 - A. Speedy Trial Act “The Speedy Trial Act requires that a criminal tria l must commence within 70 days of the latest of a defendant’s indictment, information, or appearance, barring periods of excludable delay.” Henderson v. United States , 476 U.S. 321, 326 (1986) (citing 18 U.S.C. § 3161(c)(1)). Thus, Hunter’s speedy trial “clock” began to run on June 15, 1998, when he first appear ed before the magistrate judge. The Supreme Court held that 18 U.S.C. § 3161(h)(1)( F) excludes “from the Speedy Trial Act’s 70-day limitation all time betwe en the filing of a motion and the conclusion of the hearing on that motion.” Hend erson , 476 U.S. at 330; see also United States v. Tranakos , 911 F.2d 1422, 1427 (10th Cir. 1990) (“The Supreme Court held in Hendersonthat section 3161(h)(1)(F) applies to the entire period a motion is pending.”). 1 Hunter concedes this but argues that the trial court unreasonably delayed ruling on his motions. S ee Opening Brief at 7-9. 2The HendersonCourt, however, rejected precisely this argument. See Henderson , 476 U.S. at 330. Thus, the time from August 3, 1988 (w hen he filed his first set of pre-trial motions), to March 10, 2000 (when the cou rt disposed of the last of his3 The irregularities that resulted from Hunter trying to change counsel at

that time did not set the clock ticking again. His change of plea request was under consideration throughout the transition perio d from one lawyer to another. And, indeed, on May 22, 2000, Hunter’s new counsel re-affirmed that Hunter wanted to change his plea to guilty. - 6 - motions), i.e. , while Hunter’s pre-trial motions were pending, wa s excluded from the Speedy Trial Act’s 70-day limitation period. On March 24, 2000, Hunter filed his first notice of disposition, acknowledging that he wanted to change his plea to guilty. Since a change-ofplea hearing is necessary to establish the knowing and voluntary nature of the defendant’s guilty plea, see Fed. R. Crim. P. 11(d), and to determine the sufficiency of its factual basis, see Fed. R. Crim. P. 11(f), a “notice of disposition” like this one is treated as a pre-tria l motion requiring a hearing for purposes of the Speedy Trial Act. See United States v. Santiago-Becerril , 130 F.3d 11, 19-20 (1st Cir. 1997); United States v. Je nkins , 92 F.3d 430, 440 (6th Cir. 1996). As such, the entire period between not ifying the court that he wanted to change his plea and the change-of-plea hearing i tself was excluded for purposes of the Speedy Trial Act. 3 Consequently, there were only two, non-excluded per iods when the 70-day limitation period was elapsing: from June 16, 1998 to August 3, 1998 (48 days), and from March 10, 2000 to March 24, 2000 (14 days) . Only 62 days had expired for purposes of the Speedy Trial Act; there was no violation.- 7 -

B. Sixth Amendment Right to a Speedy Trial In determining whether a defendant has been deprive d of his constitutional right to a speedy trial under the Si xth Amendment, a court should consider and balance the following fac tors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right to a speedy trial; and (4) p rejudice to the defendant. Of these factors, the length of the del ay is the threshold consideration. Only if the delay is "presumptivelyprejudicial" will the court need to consider the remaining factors. United States v. Hill , 197 F.3d 436, 443-44 (10th Cir. 1999) (citations omitted). 1. Length of Delay Hunter was brought before a magistrate in June 1998 and his trial was set for June 2000. While we have declined to draw a br ight line delineating what length of delay is “presumptively prejudicial,” Cas tro v. Ward , 138 F.3d 810, 819 (10th Cir. 1998), we have acknowledged the Supreme Court’s assessment that “lower courts have generally found postaccusation d elay ‘presumptively prejudicial’ at least as it approaches one year.” I d. (citing Doggett v. United
States , 505 U.S. 647, 652 n.1 (1992)). The trial court f ound that the two year delay in this case was presumptively prejudicial. ( Vol. II: 830 at 6.) The government has never disputed this finding. See id. ; Answer Brief at 12. We agree that the two years was presumptively prejudic ial. 2. Reason for Delay As described above, the reason for the delay stems almost entirely from Hunter’s decisions to file approximately 45 pre-tri al motions, many of which were- 8 -

factually and legally complex, e.g. , motions to suppress court-ordered wiretaps (see , e.g. , Docs. 512, 558, 582, 636, 657), and to seek to c hange counsel numerous times (see , e.g. , Docs. 700, 714, 717, 753, 861). While not ideal, the delay in ruling on the motions is understandable gi ven the number of defendants and complexity of the case. Thus, we find the reas on for the delay cuts strongly against finding a violation of his Sixth Amendment right to a speedy trial. 3. Assertion of Speedy Trial Right At the earliest, Hunter expressed a desire to proce ed to trial expeditiously at his bail hearing on October 20, 1998. (Vol. II: 621.) He explicitly moved to dismiss the indictment due to speedy trial violatio ns in a motion filed December 23, 1999. (Vol. II: 806.) Throughout this time, however, the record demonstrates that Hunter was delaying the proceedin gs by filing myriad motions, many of which were repetitive and of questionable m erit. “We are unimpressed by a defendant who moves for dismissal on speedy tr ial grounds when his other conduct indicates a contrary desire.” United States v. Tranakos , 911 F.2d 1422, 1429 (10th Cir. 1990). We find that while Hunter a sserted his right, his behavior is not consistent with an earnest desire to proceedto trial promptly. Therefore, at best, this factor does not affect the analysis.- 9 -

4. Prejudice Hunter complains that waiting in jail for trial exa cted a toll on himself, personally, and his family. See Opening Brief at 14-15. These are serious concerns. He also asserts that the delay prejudice d his defense because witnesses’ memories fade and evidence becomes stale. See id. at 15. This fact, of course, cuts both ways; both his and the government’s cases presumably became weaker by the passage of time. Moreover, we have emphasiz ed in the past that general allegations of how delay prejudices a defense are u npersuasive: [D]espite Mr. Castro’s general allegation that the passage of time made it more difficult for him to present a defense , he points to no specific prejudice he claims he suffered from the d elay. He has not claimed that any specific witness or evidence was s omehow rendered unavailable or less persuasive because of the passa ge of time.
Castro , 138 F.3d at 820. Likewise, Hunter fails to alleg e the specific ways in which the delay prejudiced his defense. We find th at the prejudice factor cuts slightly in favor of Hunter. On balance, we conclude that Hunter’s Sixth Amendme nt right to a speedy trial has not been violated.
C. Due Process Hunter’s conditional guilty plea preserved only the speedy trial issue for appellate review. See United States v. Robertson , 45 F.3d 1423, 1434 (10th Cir.4 Of course, he still could have raised jurisdictiona l issues. See id.

5 Furthermore, on the merits, the district court foun d that one reason Hunter was indicted eighteen months after his co-defendant s was that the government wanted “to be sure that there was sufficient eviden ce to support the indictment.” Vol. II:847 at 6. The Supreme Court has held that, even if a defendant’s defense is somewhat prejudiced by delay in charging him, itdoes not violate due process for the government to wait to indict until it has amassed what it believes is sufficient evidence. See United States v. Lovasco , 431 U.S. 783, 796 (1977)

. Hunter does not point to any record evidence that c asts doubt on the court’s finding or that would indicate the government delay ed indicting him intentionally, in order to gain a tactical advantage over him. See United States v. Marion , 404 U.S. 307, 324 (1971)

. - 10 - 1995); 4Tollett v. Henderson , 411 U.S. 258, 267 (1973) (“When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not therea fter raise independent claims relating to the deprivation of constitutional right s that occurred prior to the entry of the guilty plea.”). Thus, he may not now assertthat the government denied him due process by unreasonably delaying his indictment

. 5
D. Ineffective Assistance of Counsel Hunter alleges his trial counsel rendered constitut ionally ineffective assistance by failing to pursue his right to a spee dy trial. See Opening Brief at 16- 18. He concedes, however, that “[a]s a general rul e, ineffective assistance of counsel claims should be brought in collateral proc eedings rather than on direct appeal.” Opening Brief at 16 (citing United States v. Gallegos , 108 F.3d 1272, 1279 (10th Cir. 1997)). Notwithstanding this conce ssion, he asserts that his case- 11 -

fits the narrow exception to this rule because his “ineffective assistance claim has been adequately developed by the district court pri or to appeal.” Opening Brief at
17. To the contrary, this case is precisely the sort th at should not be brought on direct review. We explained some of the reasons fo r this rule in United States v. Galloway , 56 F.3d 1239 (10th Cir. 1995) (en banc): A factual record must be developed in and addressedby the district court in the first instance for effective review. Even if evidence is not necessary, at the very least counsel accused of deficient performance can explain their reasoning and actions , and the district court can render its opinion on the merits of the c laim. . . . [E]ven if the record appears to need no further development, the claim should still be presented first to the district court in c ollateral proceedings (which can be instituted without delay) so the revi ewing court can have the benefit of the district court’s views. Id. at 1240 (emphasis added); see also Beaulieu v. United States , 930 F.2d 805, 807 (10th Cir. 1991) (“This [rule] encourages devel opment of a record on the tactical reasons for trial counsel’s decisions , the extent of trial counsel’s alleged deficiencies, and the asserted prejudicial impact o n the outcome of the trial.”) (emphasis added) overruled in part byUnited States v. Galloway , 56 F.3d 1239 (10th Cir. 1995) (en banc). Whether Hunter’s trial counsel were ineffective turns on why they made the motions and statements they di d when they did, including the motions and statements asserting Hunter’s speedy trial rights. The most probative evidence on this claim – whether counsel’ s decisions were strategic or- 12 -

stupid – is not in the record. Therefore, we dismi ss his ineffective assistance of counsel claim without prejudice.
CONCLUSION We conclude neither Hunter’s statutory nor constitutional rights to a speedy trial were violated. Consequently, we AFFIRM the d istrict court’s denial of his motion. Furthermore, by entering a guilty plea that permitt ed appeal only of his speedy trial claim, he foreclosed this court from h earing his claim that the government unreasonably delayed his indictment. Fi nally, his claim of ineffective assistance of counsel is premature; it should be br ought on collateral review and, accordingly, is dismissed without prejudice.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge