Barnett v. United States

2013 DNH 155

• Court: District Court, D. New Hampshire
• Decided: November 15, 2013
• Docket: 13-CV-326-SM
• Status: Published

Opinion

Barnett v . United States 13-CV-326-SM 11/15/13 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Cushaw B . Barnett, Petitioner

v. Case N o . 13-cv-326-SM Opinion N o . 2013 DNH 155 United States of America, Respondent

O R D E R

Over the past eight years, petitioner has energetically and

persistently sought, in a variety of ways, to challenge his 2005

conviction and sentence for drug dealing, without success. While

earlier pleadings filed by petitioner may have been fairly

characterized as petitions for relief under the provisions of

28 U.S.C. § 2255, rendering this current petition a second or

successive one which this court is not authorized to consider

(see 28 U.S.C. § 2244(b)(3)(A)), that circumstance was not clear

to the Court of Appeals, and is not now clear to m e . See e.g.,

Judgment entered on February 1 6 , 2010, in United States v .

Barnett, N o . 09-2359, dismissing an appeal by petitioner as

frivolous.

Assuming that no previous petition for habeas relief has

been filed, and recognizing that in this current challenge

petitioner is not directly challenging his 2005 conviction and

sentence, but rather poses a challenge to the lawfulness of the

18-month sentence imposed on January 2 2 , 2013, for violating the terms of his supervised release, the court will consider the

matter on the merits.

Essentially, petitioner makes the following case. He says

that because his 2005 criminal conviction was the product of his

waiver of indictment and entry of pleas of guilty to three crack

cocaine distribution charges set out in an information that was

filed more than thirty (30) days following his arrest, in plain

violation of his rights under the Speedy Trial Act (see 18 U.S.C.

§ 3161(b)), his underlying conviction and sentence are unlawful

and, accordingly, by derivation, so is the sentence imposed for

violating the terms of his supervised release.

Petitioner correctly notes that Section 3161(b) provides in

pertinent part that, “Any information . . . charging an

individual with the commission of an offense shall be filed

within thirty days from the date on which such individual was

arrested . . . in connection with such charge.” Petitioner was

arrested in connection with the underlying criminal charges on

May 7 , 2004, but the information was not “filed” until June 3 ,

2005, more than a year later. See United States v . Savaria, 851

F. Supp. 4 9 0 , 492 (D. Maine 1994) (“Until a defendant executes a

signed waiver in open Court, an information has no impact and

cannot satisfy the requirements of section 3161.”). And, where

an information is not filed within the time limit required by

section 3161(b) as extended by section 3161(h), “such charge

2 against that individual contained in such complaint shall be

dismissed or otherwise dropped.” 18 U.S.C. § 3162(a)(1).

Petitioner’s claim for relief suffers, however, from a

number of fatal problems. First, the docket in his underlying

criminal case (United States v . Barnett, N o . 05-cr-95-SM) plainly

discloses that several assented-to motions to extend the thirty

day deadline described in section 3161(b) were jointly filed by

defendant and the government, and were granted by the Magistrate

Judge, thereby extending the information filing deadline until

June 1 6 , 2005. The information was “filed” on June 3 , 2005, when

petitioner waived his right to indictment (orally and in writing)

within the extended period. Accordingly, no violation of section

3161(a)(1) occurred.

Second, the Speedy Trial Act makes it clear that “Failure of

the defendant to move for dismissal prior to trial or entry of a

plea of guilty or nolo contendere shall constitute a waiver of

the right to dismissal . . . .” 18 U.S.C. § 3162(a)(2). That

waiver provision applies to section 3162(a)(1) speedy indictment

claims, like this one. United States v . Spagnuolo, 469 F.3d 3 9 ,

44 (1st Cir. 2007). Petitioner did not move to dismiss the

information on section 3161(b) grounds before waiving his right

to indictment and entering his pleas of guilty on June 3 , 2005.

Accordingly, he unarguably waived any right to dismissal he might

have had. As noted above, he also had no right to dismissal

3 since the information was filed within the time limit required by

section 3161(b) as extended by section 3161(h).

Accordingly, putting aside other issues, such as whether the

petition actually seeks to challenge the underlying conviction

and sentence well beyond the applicable one-year limitations

period, 28 U.S.C. § 2255(f), and whether this is a second or

successive petition, and considering the merits, the petition

(document n o . 1 , as amended) is DENIED, since the motion and the

files and records of the case conclusively show that the

[petitioner] is entitled to no relief.

The court declines to issue a certificate of appealability,

but petitioner may seek a certificate from the Court of Appeals

under Federal Rule of Appellate Procedure 2 2 . See Rule 1 1 ,

Federal Rules Governing Section 2255 Proceedings. The Clerk of

Court shall enter judgment in accordance with this order and

close the case.

SO ORDERED.

Steven J. McAuliffe 'United States District Judge

November 1 5 , 2013

cc: Cushaw B Barnett, pro se Seth R. Aframe, AUSA