[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 14-11390

Non-Argument Calendar

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D.C. Docket Nos. 1:11-cv-00179-MEF-CSC

 1:05-cr-00256-LSC-CSC-1

GREGORY SHIVER, 

 Petitioner-Appellant,

 versus

UNITED STATES OF AMERICA, 

 Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Alabama

________________________

(July 27, 2015)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM: 

Gregory Shiver, a federal prisoner, appeals from the district court’s denial of 

his 28 U.S.C. § 2255 motion to vacate, correct, or set aside his sentence. A 

certificate of appealability (“COA”) was granted on the following issue: “whether 

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Shiver received ineffective assistance of counsel when counsel failed to move to 

dismiss the charge against him before the start of trial based on a violation of the 

Speedy Trial Act.” In rejecting Shiver’s ineffectiveness claim, the district court 

reasoned that Shiver had failed to show he was prejudiced by counsel’s failure to 

move for dismissal since Shiver failed to show that the original trial court would 

have dismissed his indictment with prejudice. On appeal, Shiver argues that: (1) if 

his trial counsel had moved to dismiss the indictment on speedy trial grounds, the 

trial court likely would have dismissed the indictment with prejudice; (2) the 

district court in his § 2255 proceedings should have given him an opportunity to 

rebut a purported presumption that dismissal without prejudice would have 

resulted in the government seeking his re-indictment; and (3) even dismissal 

without prejudice would have been a different outcome in the “proceeding that was 

pending.” After thorough review, we affirm.

A claim of ineffective assistance of counsel is a mixed question of law and 

fact that we review de novo. Devine v. United States, 520 F.3d 1286, 1287 (11th 

Cir. 2008). Under Strickland v. Washington, 466 U.S. 668 (1984), a movant 

demonstrates ineffective assistance of counsel by showing that (1) counsel’s 

representation fell below an objective standard of reasonableness, and (2) counsel’s 

deficient performance prejudiced the defendant. Devine, 520 F.3d at 1288. Under 

the first prong of Strickland, judicial scrutiny of counsel’s performance is highly 

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deferential. Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000) (en 

banc). We indulge the “strong presumption” that counsel’s performance was 

reasonable, and unreasonableness requires a showing that “no competent counsel 

would have taken the action that [] counsel did take.” Id. at 1315 (quotation 

omitted). However, an attorney’s ignorance of a point of law fundamental to the 

case, combined with the failure to perform basic research on that point, is a 

quintessential example of unreasonable performance under Strickland. Hinton v. 

Alabama, 571 U.S. __, 134 S.Ct. 1081, 1089 (2014). 

Under the prejudice prong of Strickland, the petitioner must show a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different. Osley v. United States, 751 F.3d 1214, 

1222 (11th Cir. 2014). A reasonable probability is a probability sufficient to 

undermine confidence in the outcome. Id. “The essence of an ineffective 

assistance claim is that counsel’s unprofessional errors so upset the adversarial 

balance between defense and prosecution that the trial was rendered unfair and the 

verdict rendered suspect.” Kimmelman v. Morrison, 477 U.S. 365, 374 (1986). A 

habeas petitioner must carry his burden on both Strickland prongs to demonstrate 

ineffective assistance of counsel. Osley, 751 F.3d at 1222. We need not address 

both prongs if the defendant has made an insufficient showing on one. Id. 

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The Speedy Trial Act requires, absent certain exclusions, that a criminal 

defendant be tried within 70 days of the indictment. 18 U.S.C. § 3161(c)(1). If the 

defendant withdraws his guilty plea, he is deemed indicted on the day the order 

permitting the withdrawal becomes final. Id. § 3161(i). The Act details the actions 

that toll the speedy trial clock. Id. § 3161(h). A delay due to a continuance only 

tolls the speedy trial clock if the district court makes a finding that the ends of 

justice served by the continuance outweigh the best interests of the public and the 

defendant in a speedy trial. Id. § 3161(h)(7)(A). Failure by the district court to 

make the ends-of-justice finding results in the time being non-excludable. Zedner 

v. United States, 547 U.S. 489, 507-08 (2006). If a defendant is not brought to trial 

within the time limits prescribed by § 3161, then the indictment “shall be 

dismissed” on a motion by the defendant. 18 U.S.C. § 3162(a)(2). 

The district court has discretion to dismiss the indictment with prejudice or 

without prejudice. United States v. Brown, 183 F.3d 1306, 1309-10 (11th Cir. 

1999). There is no preference for one type of dismissal over the other. Id. at 1310. 

In choosing between the two, the court should consider (1) the seriousness of the 

offense, (2) the facts and circumstances that led to dismissal, and (3) the impact of 

re-prosecution on the administration of the Speedy Trial Act and the administration 

of justice. Id.; 18 U.S.C. § 3162(a)(2). We perform a step-by-step analysis of each 

factor. United States v. Russo, 741 F.2d 1264, 1267 (11th Cir. 1984).

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Where the crime charged is serious, the court should dismiss with prejudice 

“only for a correspondingly severe delay.” United States v. Williams, 314 F.3d 

552, 557 (11th Cir. 2002). In Williams, we concluded that a 68-day violation in a 

prosecution for serious drug crimes warranted dismissal without prejudice. Id. at 

560-61. We recognized that, at some point, however, the length of the delay can 

be enough, by itself, to justify dismissal with prejudice. Id. at 557. 

As for the second factor -- the facts and circumstances leading to the Speedy 

Trial Act violation -- we focus on “the culpability of the delay-producing conduct.” 

Id. at 559 (quotation omitted). In United States v. Miranda, 835 F.2d 830 (11th 

Cir. 1988), a federal criminal prosecution, a magistrate judge prepared a report and 

recommendation for the district court concerning a motion to dismiss based on the 

unconstitutionality of certain state and federal states. Id. at 832. Shortly thereafter, 

a different district judge in related cases ordered the magistrate judge to advise the 

Florida attorney general that the State could elect to participate in the case, since

the constitutionality of a state statute was at issue. Id. The magistrate judge 

entered an order granting the Florida attorney general 20 days to notify the court of 

its interest, or otherwise the report and recommendation would stand as the final 

report by the magistrate judge. Id. The Florida attorney general did not respond, 

and the case “essentially dropped out of sight” until the defendants moved to 

dismiss on speedy trial grounds roughly four months later. Id. at 833. The district 

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court denied the motion to dismiss, finding that it was the defendants’ burden to 

notify the court of the attorney general’s failure to respond and that the case was 

ripe to continue. Id. On appeal, however, we explained that the appellants should 

not shoulder the entire blame, as they had no duty to “insure speediness against 

themselves,” and that the government and the district court shared responsibility 

for the Speedy Trial Act violation. Id. at 833-34. We concluded that it did not 

need to remand for a determination of whether to dismiss with prejudice because 

the record compelled dismissal without prejudice, noting that “[b]y administrative 

confusion the court failed its responsibility” and the government failed its duty of 

notification as well. Id. at 834. We added that “[t]he unfortunate circumstances of 

[the] case point more to negligence and oversight than intentional delay.” Id. 

Finally, applying the third statutory factor, “there is almost always some 

tension between administration of the Act and the administration of justice.” 

Williams, 314 F.3d at 559 (quotations omitted). Defendants can always argue that 

the minimal sanction of dismissal without prejudice takes the teeth out of the Act’s 

requirements, and the government can always argue that re-prosecution furthers the 

public’s interest in bringing criminals to trial. Id. at 559-60. However, the third 

factor is not necessarily neutral -- it not only allows courts to review the 

seriousness of the criminal charges and the reason for the delay, but also “provides 

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authority for considering such aggravating and mitigating factors as the length of 

the delay and the prejudice to the defendant.” Id. at 560 (quotations omitted). 

In this case, Shiver has failed to show that he was he was prejudiced under 

Strickland by counsel’s failure to move for dismissal on speedy trial grounds. As 

for Shiver’s claim that the trial court likely would have dismissed the indictment 

without prejudice if his trial counsel had moved for dismissal, we are unpersuaded. 

Indeed, both parties agree that possession of child pornography is a serious offense

-- the first factor the Speedy Trial Act directs district courts to consider in deciding 

whether to dismiss with prejudice under § 3162(a)(2). Additionally, while the 

delay was substantial, it was not long enough, by itself, to justify dismissal with 

prejudice, especially in light of the severity of the pending charge. Turning to the 

second § 3162(a)(2) factor, the facts and circumstances surrounding the delay do 

not indicate that the government was at fault. Shiver did not oppose the 

government’s motion to continue; the district court ultimately made an ends-ofjustice finding for the continuance; and nothing in the record suggests that either 

party sought to intentionally delay the case. Nor does the third § 3162(a)(2) factor 

-- the impact of re-prosecution on the administration of the Speedy Trial Act and 

the administration of justice -- weigh in Shiver’s favor. Notably, at the time, 

Shiver agreed that the ends of justice would be met by a continuance. Moreover, 

Shiver has not argued that the delay prejudiced the preparation of his case. 

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Accordingly, a consideration of the § 3162(a)(2) factors indicates that the trial 

court would have dismissed the indictment without prejudice.

We also find no basis for Shiver’s request for a remand to give him the 

opportunity to rebut the “presumption” that the government would have re-indicted 

him. As the record shows, Shiver did not present any evidence below to establish 

that the government would not have re-indicted him given the seriousness of the 

charge. Because the burden of proof was on him to show that the government 

would not have re-indicted, he is incorrect in asserting that the district court 

applied an impermissible presumption against him.

Finally, we disagree with Shiver that a dismissal without prejudice would 

have been a different outcome in the “proceeding,” and that, had the government 

re-indicted him, it would have been an entirely different “proceeding” under 

Strickland. For starters, Shiver’s cited case law does not support this position. 

Moreover, as we’ve explained, Shiver has not shown that a dismissal without 

prejudice would have ended the criminal prosecution. Thus, we cannot conclude 

that counsel’s failure to move to dismiss the indictment before trial would have 

affected the ultimate outcome of the pending criminal charges against Shiver. 

In short, Shiver failed to demonstrate prejudice under Strickland. Because

we need not need not address both Strickland prongs if the defendant has made an 

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insufficient showing on one, we conclude that the district court did not err in 

rejecting Shiver’s ineffective-assistance-of-counsel claim. 1

 

AFFIRMED.

 1 Shiver also has requested a remand for an evidentiary hearing to determine whether 

counsel acted strategically or due to ignorance of the law. However, we need not resolve the 

issue of counsel’s performance in light of our conclusion that Shiver suffered no prejudice.

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