Dwight A. THOMAS, Movant-Appellant
UNITED STATES of America, Respondent-Appellee.
Submitted: Sept. 24, 2013.
Rehearing and Rehearing En Banc Denied Feb. 18, 2014.
[Copyrighted Material Omitted]
C. Douglas Shull, Columbia, MO, argued, for appellant.
Philip M. Koppe, Asst. U.S. Atty., Kansas City, MO, argued (Tammy Dickinson, U.S. Atty., on the brief), for appellee.
Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.
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 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.
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 was to 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).
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 ...