Sunday, June 15, 2008

Out of Hindsight

Parisi v. United States, No. 06-1148-pr (2d Cir. June 13, 2008) (Winter, Hall, CJJ, Oberdorfer, DJ)

In this 2255 appeal, the defendant unsuccessfully argued that his counsel was constitutionally ineffective for failing to move for dismissal based on a Speedy Trial Act violation.


In 2001, Parisi was charged, in a complaint, with child pornography-related offenses. Although, under the Speedy Trial Act, the government had thirty days within which to indict him, the indictment was not filed until nearly 200 days later. During that period, counsel executed three “stipulations” seeking sixty-day continuances for plea negotiations. Each stipulation agreed that the ends of justice to be served by the delay would outweigh defendant’s and the public’s right to a speedy trial. The district court “so ordered” each stipulation.

In 2003, Parisi pled guilty under a plea agreement that included an appellate waiver, and received a 150-month sentence. He later filed a 2255 motion arguing that his attorney was ineffective in failing to make a speedy trial claim based on the delay between the complaint and indictment. While the 2255 matters were pending, the Supreme Court decided Zedner v. United States, 547 U.S. 489 (2006), under which the “so ordered” ends of justice findings were almost certainly invalid.

The Court’s Resolution of the Motion

The court first had to consider whether the claim was waived by the plea agreement. While a straightforward speedy trial claim would be waived, here the ineffectiveness claim was not. The court construed it as a claim that counsel "was ineffective in advising [Parisi] to accept the plea agreement rather than advising him to move to dismiss the indictment with prejudice based on alleged Speedy Trial Act violations." This survived the guilty plea and the appeal waiver because, "by focusing on the advice Parisi received from his attorney, it connects the alleged ineffectiveness of Parisi’s attorney with the voluntary nature of his plea."

Nevertheless, the court found no Sixth Amendment violation. It agreed that Zedner “serves as a reminder that the district court has an obligation independently to determine whether a continuance serves the ends of justice,” and that there was a “strong argument” that such an independent determination did not occur here, particularly since, under Zedner, the mere agreement to the continuance
by the parties does not satisfy the Act.

Nevertheless, there was no ineffectiveness. Counsel did not act unreasonably in failing to anticipate Zedner, which was decided some five years later. Even today, if the circuit were to hold that the stipulations did not have the effect of stopping the speedy trial clock, it would be “articulating law on a previously unaddressed question.”

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