[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JAN 17, 2007

THOMAS K. KAHN

N o . 06-12109

CLERK

N o n - A r g u m e n t Calendar

D . C. Docket Nos. 06-00054-CV-T-26-EAJ

03-00293-CR -T-2

H A M IL I MILLIGAN,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

A p p e al from the United States District Court

fo r the Middle District of Florida

(J a n u a ry 17, 2007)

B efo re ANDERSON, BLACK and BARKETT, Circuit Judges.

P E R CURIAM:

F ed eral prisoner Hamili Milligan, proceeding pro se, appeals the district c o u r t's denial of his motion to vacate, set aside, or correct his sentence, filed p u rsu an t to 28U.S.C. § 2255. Milligan filed a notice of appeal from the denial of relief. This Court granted a certificate of appealability (COA) on the following is s u e s : ( 1 ) Whether appellant's trial counsel was ineffective for failing to file a m o tio n to dismiss based on a violation of the Speedy Trial Act, 18U.S.C.

§ 3161(b).

(2 ) Whether appellant's appellate counsel was ineffective for failing to raise th is first issue on direct appeal.

A s to the first claim, Milligan has shown a violation of the Speedy Trial Act o ccu rred , but has failed to show he was prejudiced. As to the second claim, this C o u r t would not hear a direct appeal on whether Milligan's trial counsel was in e f fe ctiv e because the issue was not first raised in the district court. We, th e r ef o r e, affirm the district court's denial of relief.

I. STANDARD OF REVIEW W h eth er a defendant received ineffective assistance of counsel under the S ix th Amendment is a mixed question of law and fact reviewed de novo. Mincey v. H ea d , 206 F.3d 1106, 1142 (11th Cir. 2000). Our review is limited to the issues sp ecified in the COA issued pursuant to 28U.S.C. § 2253(c). Murray v. United S ta te s, 145 F.3d 1249, 1250­51 (11th Cir. 1998).

II. DISCUSSION I n e ffe ctiv e Assistance of Trial Counsel A.

T o establish a claim of ineffective assistance of counsel, Milligan must sh o w : (1) his counsel's performance fell below an objective standard of reasonable p ro fessio n al assistance; and (2) there is a reasonable probability that the outcome w o u ld have been different but for his lawyer's unprofessional errors. Strickland v. W a sh in g to n , 104 S. Ct. 2053, 2064­68 (1984); Grossman v. McDonough, 466 F.3d 1 3 2 5 , 1344 (11th Cir. 2006). Counsel is presumed to have rendered adequate assistan ce and to have exercised reasonable professional judgment. Strickland, 104 S . Ct. at 2064.

Even if Milligan can show his counsel's performance fell below an objective stan d ard of reasonable professional assistance, he is unable to show prejudice. The S p eed y Trial Act provides "Any . . . indictment charging an individual with the c o m m is sio n of an offense shall be filed within thirty days from the date on which s u c h individual was arrested . . . ." 18U.S.C. § 3161(b). If the Government files th e indictment after this time limit, which the Government did in this case, the c h a rg e s will be dismissed with or without prejudice with the district court co n sid erin g the following factors: "the seriousness of the offense; the facts and c ir cu m s ta n c es of the case which led to the dismissal; and the impact of a rep ro secu tio n on the administration of this chapter and the administration of ju stice." 18U.S.C. § 3162(a)(1). This Court has previously held that drug and firearm charges are serious offenses when considering whether to dismiss with or w ith o u t prejudice. See United States v. Williams, 314 F.3d 552, 559 (11th Cir. 2 0 0 2 ).

Milligan has failed to establish that his trial counsel's failure to file a motion to dismiss prejudiced him. The district court would have likely dismissed the ch arg es without prejudice, and the case would have been refiled. In addition, M illig an 's claims would not qualify as per se prejudice. See United States v. C ro n ic, 104 S. Ct. 2039, 2046­47 (1984). The district court correctly found that M illig an failed to show any prejudice from his counsel's failure to file a motion to d is m is s .

I n e ffe ctiv e Assistance of Appellate Counsel B.

M illig an next argues his appellate counsel was constitutionally ineffective b ec au se his appellate counsel failed to raise the issue of his trial counsel's in effectiv en ess on appeal. An ineffective assistance of appellate counsel claim is co n sid ered under the same two-part test announced in Strickland v. Washington, 1 0 4 S. Ct. 2052 (1984). Grubbs v. Singletary, 120 F.3d 1174, 1175 (11th Cir. 1 9 9 7 ). M illig an 's appellate counsel could not be constitutionally ineffective b e c au s e this Court would not have heard his claim for ineffective assistance of trial co u n sel on direct appeal. This Court does not consider claims of ineffective assistan ce of counsel on direct appeal unless those claims were first raised in the d istrict court with an opportunity to develop a factual record relevant to the merits o f the claim. United States v. Perez-Tosta, 36 F.3d 1552, 1563 (11th Cir. 1994).

Milligan did not assert ineffective assistance of trial counsel prior to his direct ap p eal. In fact, he stated he was satisfied with his counsel at his plea colloquy.

This Court would not have heard his claim on direct appeal; therefore, his appellate c o u n s el could not have been constitutionally ineffective for not raising the issue.

III. CONCLUSION B a se d on the above discussion, Milligan's claims for ineffective assistance o f trial and appellate counsel must fail. His failed to show his trial counsel's error c au s e d him any prejudice. In addition, his appellate counsel could not have been in e f fe ctiv e for not raising the ineffective assistance of trial counsel on direct appeal b ecau se this Court would not have heard the claim. We, therefore, AFFIRM the d istrict court.

A F F IR M E D .