United States Court of Appeals

For the Eighth Circuit

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No. 12-1853

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Dwight A. Thomas

lllllllllllllllllllllMovant - Appellant

v.

United States of America

lllllllllllllllllllllRespondent - Appellee

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 Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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 Submitted: September 24, 2013

 Filed: December 16, 2013

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Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.

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SHEPHERD, Circuit Judge.

Dwight A. Thomas appeals the denial of his motion to vacate, set aside, or

correct his sentence pursuant to 28 U.S.C. § 2255. Thomas alleges his trial counsel

was ineffective in failing to move to dismiss his indictment for violation of his Sixth
Amendment right to a speedy trial. The district court denied his motion without a

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hearing. He then filed a Federal Rule of Civil Procedure 60(b) motion for relief from

the judgment, and the district court denied the motion. We affirm.

I.

A federal grand jury returned a two-count indictment against Thomas on

October 5, 2004, charging him with Count 1, distributing between three and four

grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and Count

2, possession with intent to distribute at least 50 grams, but not more than 150 grams

of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). An arrest

warrant was promptly issued but erroneously listed Thomas’s birth date. Due to this

error, Thomas was not apprehended on the indictment until February 2008, when he

was taken into custody for a separate drug incident, approximately three years and

four months after the indictment was entered.

After his arrest, the court appointed counsel to represent him. Thomas was

arraigned on February 26, 2008, and he pled not guilty to the 2004 charges. The

Government then filed an information under 21 U.S.C. § 851 alleging that Thomas

had two felony drug convictions prior to the 2004 incident. The effect of the

information wasto provide for a mandatory sentence of life imprisonment if Thomas

were convicted on Count 2. 21 U.S.C. § 841(b)(1)(A). After trial, the jury convicted

him on both counts. The court sentenced Thomas to 240 months imprisonment on

Count 1 and life on Count 2, to run concurrently. We affirmed the convictions and

sentences. United States v. Thomas, 593 F.3d 752 (8th Cir. 2010).

The Honorable Gregory Kays, United States District Judge for the Western 1

District of Missouri.

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Thomas then moved, under 28 U.S.C. § 2255, to vacate, set aside, or correct

his sentence based on a violation of his Sixth Amendment right to the effective

assistance of counsel. He alleged that counsel never discussed with him the

possibility of moving to dismiss the case based on a speedy trial violation, and the

failure to file such a motion to dismiss prejudiced him. In response, trial counsel filed

an affidavit that asserted he had discussed the option of moving to dismiss on speedy

trial grounds with Thomas, and Thomas agreed with his attorney’s decision that it

was better to go to trial on the 2004 indictment than to defend against a 2008 incident

for which he was arrested but had not been indicted. The attorney reasoned that: 

(1) in 2004, Thomas was outside of the drug house but in 2008 he was inside the

house in which the drugs were found, (2) the informant from the 2004 case was no

longer available, (3) fewer witnesses were available in the 2004 case, (4) a jury might

view an older case aslessimportant, (5) the 2004 case would be more difficult for the

government to prove, and (6) if the court dismissed the 2004 case, Thomas would be

charged with the 2008 drug sale, and would have more difficulty working out a

reasonable plea agreement.

The district court denied the motion and found a hearing unnecessary because

the record conclusively showed that counsel’s performance was reasonable. The

court specifically found that Thomas’s claims were contradicted by the record

because, based on counsel’s affidavit, Thomas agreed with the decision not to file a

motion to dismiss on speedy trial grounds. Because counsel’s performance was

reasonable, the court did not consider whether the alleged ineffectiveness prejudiced

Thomas. Thomas then filed a Rule 60(b) motion for relief from the judgment, which

the district court summarily denied, and Thomas appealed. This court granted a

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certificate of appealability as to Thomas’s “speedy-trial claim and on his Rule 60(b)

claim.”2

II.

Thomas argues (1) he should have been afforded an evidentiary hearing

because the files and records of the case do not conclusively establish that he is not

entitled to 28 U.S.C. § 2255 relief, and (2) the district court abused its discretion in

denying his motion for relief from the judgment under Rule 60(b). We address each

claim in turn.

A.

Our review of a district court’s ruling in a 28 U.S.C. § 2255 proceeding is de

novo both on matters of law and on mixed questions of law and fact. United States

v. Duke, 50 F.3d 571, 576 (8th Cir. 1995). We review a district court’s decision to

deny an evidentiary hearing for abuse of discretion; however, we are obligated “to

look behind that discretionary decision to the court’s rejection of the claim on its

merits, which is a legal conclusion that we review de novo.” Noe v. United States,

The certificate of appealability did not include the issue of the effectiveness

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of Thomas’s counsel. While ordinarily our review is limited to the certificate of

appealability, de la Garza v. Fabian, 574 F.3d 998, 1001 (8th Cir. 2009), we retain

“discretion to consider sua sponte issues beyond those specified in a certificate of

appealability,” United States v. Morgan, 244 F.3d 674, 674-75 (8th Cir. 2001) (en

banc). Here, we find it appropriate to expand the certificate by including Thomas’s

ineffective assistance of counsel claim because Thomas filed his Motion for

Certificate of Appealability pro se, and thus the issues were not presented as clearly

as they otherwise may have been. See King v. United States, 595 F.3d 844, 854 n.5

(8th Cir. 2010).

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601 F.3d 784, 792 (8th Cir. 2010) (quoting Saunders v. United States, 236 F.3d 950,

952 (8th Cir. 2001)).

Evidentiary hearings on 28 U.S.C. § 2255 motions are preferred, and the

general rule is that a hearing is necessary prior to the motion’s disposition if a factual

dispute exists. See Grady v. United States, 269 F.3d 913, 919 (8th Cir. 2001); United

States v. Peltier, 731 F.2d 550, 554 (8th Cir. 1984). The district court is not permitted

to make a credibility determination on the affidavits alone; thus if the decision turns

on credibility, the district court must conduct a hearing. Kingsberry v. United States,

202 F.3d 1030, 1032-33 & n.6 (8th Cir. 2000). An evidentiary hearing may be

denied, however, if the motion, files, and records of the case conclusively show that

the movant is not entitled to relief. 28 U.S.C. § 2255(b). The court may find this

conclusive showing if either “(1) the [petitioner’s] allegations, accepted as true,

would not entitle the [petitioner] to relief, or (2) the allegations cannot be accepted

as true because they are contradicted by the record, inherently incredible, or

conclusions rather than statements of fact.” Buster v. United States, 447 F.3d 1130,

1132 (8th Cir. 2006) (quoting Sanders v. United States, 341 F.3d 720, 722 (8th Cir.

2003)) (internal quotation marks omitted).

Thomas first argues that the district court erroneously included trial counsel’s

affidavit in the files and records of the case. In 1978, this court proscribed the use of

affidavits as part of the files and records of the case when making credibility

determinations. Lindhorst v. United States, 585 F.2d 361, 365 (8th Cir. 1978). 

However, the subsequent Rules Governing 28 U.S.C. § 2255 superceded Lindhorst

and now permit the use of affidavits. Specifically, Rule 7 provides that “[a]ffidavits

also may be submitted and considered as part of the record.” 28 U.S.C. § 2255, Rule

7. In addition, Rule 8 provides that “the judge must review [the record] and any

materials submitted under Rule 7 to determine whether an evidentiary hearing is

warranted.” 28 U.S.C. § 2255, Rule 8. Under these rules, trial courts now may

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consider affidavits as part of the files and records of the case. See Kingsberry, 202

F.3d at 1031 & n.2.

Thomas next argues a hearing is warranted because he demonstrated that his

counsel was ineffective, thus, the files and records of the case do not conclusively

establish that he is not entitled to relief. Generally, to be successful on a claim of

ineffective assistance of counsel, a defendant must “show both deficient performance

by counsel and prejudice to the defense caused by that performance.” Barger v.

United States, 204 F.3d 1180, 1181 (8th Cir. 2000) (citing Strickland v. Washington,

466 U.S. 668, 687 (1984)). “Deficiencymeans that counsel’s performance fell below

an objective standard of reasonableness, and prejudice means that, but for counsel’s

errors, a reasonable probability exists that the result . . . would have been different.” 

Deltoro-Aguilera v. United States, 625 F.3d 434, 437 (8th Cir. 2010) (citing

Strickland, 466 U.S. at 688, 694).

The defendant bears the burden to overcome the strong presumption that

counsel’s performance was reasonable. Middleton v. Roper, 455 F.3d 838, 846 (8th

Cir. 2006). However, strategic choices made due to a lack of preparation or

investigation are not protected by the same presumption. Strickland, 466 U.S. at 690-

91; Armstrong v. Kemna, 534 F.3d 857, 864-65 (8th Cir. 2008). An attorney is not

incompetent in exercising reasonable professional judgment even when, in hindsight,

the decision may have been a mistake. Brown v. United States, 656 F.2d 361, 363

(8th Cir. 1981). But, an attorney must conduct more than a cursory investigation. 

See Wiggins v. Smith, 539 U.S. 510, 527 (2003) (citing Strickland, 466 U.S. at 691);

see also Nelson v. Hargett, 989 F.2d 847, 850-51 (5th Cir. 1993) (finding that, on the

particular facts, the failure to file a speedy trial motion was not a reasonable trial

strategy but instead appeared to be the result of ineffective investigation).

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The accused has the “ultimate authority to make certain fundamental decisions

regarding the case.” Jones v. Barnes, 463 U.S. 745, 751 (1983). The attorney, on the

other hand, has the responsibility of making tactical decisions of trial strategy. 

Strickland, 466 U.S. at 689; Sanders v. Trickey, 875 F.2d 205, 207 (8th Cir. 1989)

(noting that, when determining whether counsel’s representation was deficient, a

“court must avoid second-guessing trial strategy”). The Supreme Court has

recognized only four fundamental choices that a defendant always has the right to

make. See Jones, 463 U.S. at 751; see also United States v. Boyd, 86 F.3d 719, 723

(7thCir. 1996) (reasoning that, aside fromthe fourfundamental decisions enumerated

by the Supreme Court in Jones, all other trial decisions are strategic decisions

reserved for counsel). Those fundamental choices remaining with the defendant are

the decision “whether to plead guilty, waive a jury, testify in his or her own behalf,

or take an appeal.” Jones, 463 U.S. at 751

The Supreme Court has not enumerated the decision to move to dismiss for a

Sixth Amendment speedy trial violation as a fundamental choice reserved for the

defendant, Jones, 463 U.S. at 751, and such a decision does not have characteristics

similar to those in the Court’s enumerated list. A defendant is protected when trial

tactics are reserved for trained counselors. See Boyd, 86 F.3d at 723 (“People

charged with crime are by and large better off accepting the decisions of experienced

trial lawyers than they would be making their own decisions; an amateur who

receives professional advice is still an amateur.”).

The right to a speedy trial is distinct from other rights enshrined in the

Constitution to protect the accused. Barker v. Wingo, 407 U.S. 514, 519-20 (1972).

The choices enumerated in Jones are guaranteed because their deprivation prejudices

the defendant’s right to defend himself. They “naturally reside with the defendant

because they implicate the two most basic tenets of our legal system—the opportunity

to have a day in court and the opportunity to have a jury of peers.” United States v.

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Washington, 198 F.3d 721, 724 (8th Cir. 1999). Conversely, the denial of a speedy

trial, not implicating these basic tenants, does not per se prejudice the defendant’s

ability to defend himself. Barker, 407 U.S. at 519-20. Whether or not a motion is

made to dismiss based upon Sixth Amendment speedy trial grounds, the defendant

is guaranteed his day in court before a jury of peers. In fact, a delay in trial

sometimes may work to the defendant’s advantage, as witnesses become unavailable

or memories fade, weakening the prosecution’s case.

Moreover, this decision is unlike the fundamental decisions that the accused

has the right to make because it does not involve choices easily comprehensible to a

lay person. See Washington, 198 F.3d at 723-24; see also Boyd, 86 F.3d at 723-24

(reasoning that the decision to make a preemptory challenge is not as easily

comprehensible to a lay person and thus is reserved for the attorney). The

fundamental choices enumerated in Jones involve easily understood alternatives, such

as whether to admit guilt or assert innocence, while the decision to move to dismiss

for a speedy trial violation can involve the complicated weighing of factors and

predicting of possible outcomes. Because of the possibility of the defendant’s

strategic advantage, courts apply a balancing test, instead of automatically dismissing

the indictment, when a motion is made to dismiss for speedy trial violations. Barker,

407 U.S. at 520. Whether a violation has occurred can be determined only after

consideration of all the relevant circumstances of the case at hand, including any

prejudice to the accused and the prosecution. See generally United States v. Lewis,

9007 F.2d 773, 774 (8th Cir. 1990). In the instant case, trial counsel’s decision not

to move to dismiss the indictment involved gauging the effect of a possible dismissal

on plea negotiations with respect to another incident, comparing the possibility of

success at trial on the current charges to possible future charges, and predicting the

ability ofthe government to effectively present a case. This decision involves matters

of strategy better reserved for the application of a trained attorney’s expertise, see

Bowman v. Gammon, 85 F.3d 1339, 1345 (8thCir. 1996) (indicating that the attorney

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can appropriately decide as a “tactical trial decision in the interests of his client” to

not move to dismiss on Speedy Trial Act grounds). Accordingly, the decision

whether to move to dismiss for a speedy trial violation is a tactical decision of trial

strategy.

In this case, trial counsel presented an affidavit identifying reasons for not

moving to dismiss the case on speedy trial grounds. Though Thomas disputes that

there was ever a meeting concerning the decision as to whether to file a motion, he

does not contest the logic of his attorney’s reasoning or the depth of his investigation. 

Rather, he asserts only that counsel erred in not conferring with him and that there “is

no evidence . . . that indicate[s] the failure to file a motion to dismiss was due to any

strategy.” We find that the trial counsel’s decision was within the wide range of

defense counsel competence demanded by the Sixth Amendment.

In conclusion, we agree with the district court that an evidentiary hearing was

not required. Even if, as Thomas claims, counsel did not confer with him as to the

decision not to move for dismissal of the indictment on speedy trial grounds, this was

a tactical decision which counsel could properly make without his client’s input. See

Wainwright v. Sykes, 433 U.S. 72, 93 (1977) (Burger, C.J., concurring). Thus,

Thomas’s claim fails on the first, deficiency prong under Strickland and we do not

address whether the failure to file the motion was prejudicial.

B.

Thomas also argues that the district court erred in denying his 60(b) motion for

relief from the judgment because the district court erred in including trial counsel’s

affidavit in the files and records of the case. We review the denial of a Rule 60(b)

motion for abuse of discretion, which is found only when there are clearly erroneous

findings of fact or conclusions of law. Noah v. Bond Cold Storage, 408 F.3d 1043,

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1045 (8th Cir. 2005) (per curiam). Because, under the Rules Governing 28 U.S.C.

§ 2255, the court properly took into account the affidavit, the district court did not err

in denying the Rule 60(b) motion.

III.

We conclude that because the decision whether to move to dismiss was a

tactical decision made within his counsel’s discretion, Thomasis not entitled to relief. 

Thus, an evidentiary hearing was not warranted. We also find that the district court

did not err in denying the Rule 60(b) motion.

Affirmed.

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