UNITED STATES CO URT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MICHAEL D. SMITH, Defendant - Appellant. No. 10-1240 (D.C. No. 1:08-CV-0 1438-REB and 1:04-CR-00103-REB-MEH-06) (D. Colo.)

ORDER DENYING CERTIFIC ATE OF APPEALABILITY AND DISMISSING APPEAL

Before BRISCOE , Chief Circuit Judge, TACHA , and O'BRIEN , Circuit Judges.

Michael D. Smith 1 seeks leave to appeal from the di strict court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside or correct sentence. In it he claimed his attorneys were ineffect ive in failing to appreciate and properly respond to what he views as a Speedy Trial Act violation. 18 U.S.C. §§ 3161-3174. On March 10, 2004, an indictment was returned against Smith and six others charging them with multiple co unts of conspiracy and secu rities fraud. Smith made his

1 The district court granted Smith le ave to appeal in forma pauperis ( ifp). This Court appointed counsel under the Criminal Justice Act (18 U.S.C.A. § 3006A). FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court- 2 - initial appearance on March 12, 2004, 2 and posted bond on March 31, 2004 (his release on bond continued until his voluntarily surrender to the Bureau of Pr isons on July 28, 2008). He was arraigned April 12, 2004, and pled not guilty . 3 A joint jury trial 4 began April 2, 2007, and concluded on May 29, 2007. The jury fo und Smith guilty on three of the seventeen counts alleged against him. At first blush it might appear a speedy tria l problem may have been overlooked by counsel, but closer review proves otherwise. Because Smith has not “made a substantial showing of the denial of a constitutional ri ght,” 28 U.S.C. § 2253 (c)(2), we deny his request for a certificate of appealability (COA).

I. BACKGROUND Smith was convicted by a jury of three counts of secur ities fraud in violation of 15 U.S.C. §§ 77q(a), 77x, and 18 U. S.C. § 2 and was sentenced to 60 months imprisonment. He filed a direct appeal and the government cross-appealed. However, the parties filed a joint motion to dismiss the appeal s, which this Court granted. See United States v. Smith , Nos. 08-1246 & 08-1282 (10th Cir. July 16, 2009) (unpublished). Following dismissal of the appeal s, Smith filed this § 2255 motion. 5 It was

2 Smith’s brief sets his initial appearance on that date; we accept his assertion.

3 On October 25, 2005, Smith was re-arraigned pursuant to a second superseding indictment. He entered a plea of not guilty . The last co-defendant was arraigned on April 26, 2004.

4 Smith and three co-defendants were tried together.

5 Smith also filed several previous § 22 55 motions claiming ineffective assistance of counsel, the first before he was sentenced and the others during the pendency of his direct appeal. The district court dismissed a ll three as premature and denied a COA. We- 3 - supported by an affidavit of one of his two trial counsel, Declan O’Donnell, essentially confessing his alleged ineffectiveness with respect to speedy trial issues.

The district court held an evidentiary hearing wherein testimony was elicited from both of Smith’s trial counsel, O’Donnell, whos e role in the trial was minor (or at least secondary) and Richard Stucke y, who was the primary trial attorney. In a cogent, comprehensive and compelling decision, th e district court concluded there was no evidence presented “from which it could be concluded that any competent attorney, a fortiori , one who was aware of the Speedy Trial Act of 1974 and its requirements at the

time and under the circumstances of this case[,] necessarily would have been required to

file a motion to dismiss the indictment on that basis to come within the wide range of competence contemplated by Strickland .” (R. Vol. II at 180-81.) In arriving at this conclusion, the court found O’Donnell’s testimony “to be entirely incredible and unworthy of credence,” and described his role during the pretrial and trial stages as “marginal.” ( Id. at 178.) On the other hand, the court found Stuckey’s testimony “credible.” ( Id. at 174.) His testimony “demonstrate[ d] that the prevailing view of competent attorneys at th e time was that the combin ed effect of [the district court’s] April 30, 200[4], ends-of-justice orde r and the numerous pending pr etrial motions effectively obviated any speedy trial concerns.” ( Id. at 180.) The district court candidly admitted an apparent deficien cy in its April 30, 2004

denied Smith’s request for a COA. See United States v. Smith , No. 09-1066 (May 13, 2009) (unpublished).- 4 - ends-of-justice order 6 in light of subsequent pr onouncements by this Court in United

States v. Toombs , 574 F.3d 1262 (10th Cir. 2009), and United States v. Williams , 511 F.3d 1044 (10th Cir. 2007). Analyzing our holdings in Toombs and Williams , the district court conceded its “open-ended [ends-of-j ustice order] . . . was not sufficient per se to have warranted a nearly three-year continuan ce of the trial and that the significant lapse of time between the filing and resolution of many of the numerous motions submitted in this case was not entirely excludable either.” (R. Vol. II at 173.) Even though the endsof-justice order might not now comply with our pronouncements, the judge correctly explained why such an issue did not rend er Smith’s trial counsel ineffective. See Strickland v. Washington , 466 U.S. 668, 690 (1984) (“ [A] court deciding an actual ineffectiveness claim must judge the reasona bleness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.”); s ee also Dever v. Kan. State Penitentiary , 36 F. 3d 1531, 1537 (10t h Cir. 1994) (same). In particular, he said: While recognition of this understanding of the stat e of the law would not necessarily excuse a Speedy Trial Act vi olation in the first instance, it does pertain directly to the question whet her counsel was ineffective for failing to perceive and advance the issue. For had Mr. O’Donnell appreciated the potential speedy trial issue, he would ha ve been far more perspicacious than either this court or the approximately 15 other experienced criminal defense lawyers who were involved at one tim e or another in this case, including

6 On April 30, 2004, over Sm ith’s objection, the court granted a co-defendant’s motion for declaration of complexity, concludi ng the case was complex and “the ends of justice served by granting the motion outweigh the best interests of the public and the defendants in a speedy trial w ithin the meaning of 18 U.S.C. § 3161(h)(8)(A).” (R. Vol. II at 78.) Over the course of approximate ly three years this “ends-of-justice order” proved to be prescient – the case wa s not only complex, but contentious.- 5 - Mr. O’Donnell’s own co-counsel. (R. Vol. II at 174-75.) Accordingly, the court concluded Smith did not meet the first prong of the twopart test set forth in Strickland , 466 U.S. at 687 (plaintiff must show his attorney’s performance (1) fell below an objective standard of reasonableness and (2) that the unreasonably deficient perform ance resulted in prejudice). 7 It also denied Smith’s request for a COA.

II. DISCUSSION A COA is a jurisdictional prerequisite to our review of a petition for a writ of habeas corpus. Miller-El v. Cockrell , 537 U.S. 322, 336 (2003). We will issue a COA “only if the applicant has made a substantia l showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, an applicant must demonstrate “that reasonable jurists could debate whether (or, for that matter, agree that) the petition

should have been reso lved in a different manner or th at the issues presented were adequate to deserve encourag ement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotations omitted). In ev aluating whether an ap plicant has satisfied this burden, we undertake “a preliminary, though not defi nitive, consideration of the [legal] framework” applicable to each of his claims. Miller-El , 537 U.S. at 338. We have undertaken a thorough review of Smith’s appellate brief in support of his request for a COA, the district court’s deta iled order denying Smith’s § 2255 motion, the

7 The district court also noted Smith ha d “utterly failed to address the prejudice prong of Strickland .” (R. Vol. II at 181.)- 6 - record, and the applicable law. Regardle ss of O’Donnell’s post hoc admissions, primary trial counsel’s failure to move for a Spee dy Trial Act dismissal did not fall below objectively reasonable standards of attorney performance considering the circumstances

of this case and the then extant law. Counse l is required to be careful and competent, but not prescient. Because jurists of reason co uld debate the correctness of the district court’s decision, Smith is not entitled to a COA.

We DENY Smith’s request for a COA and DISMISS this matter. Entered by the Court:

Terrence L. O’Brien United States Circuit Judge