United States of America v. Auto. Club of N.M., Inc., 420 F.3d 1098, 1117 10th Cir. 2005 a district court’s…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6117
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANDERSON BENENHALEY, a/k/a Andy,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:98-cr-00524-DWS-7; 3:99-cr-00073-CMC-2; 3:04-cv-23330-
CMC)
Submitted: May 18, 2007 Decided: July 10, 2007
Before MOTZ, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Anderson Benenhaley, Appellant Pro Se. Jane Barrett Taylor, OFFICE
OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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*By omitting this claim from its opinion, the district court
implicitly rejected it. Cf. Miller v. Auto. Club of N.M., Inc.,
420 F.3d 1098, 1117 (10th Cir. 2005) (a district court’s failure
to respond to arguments raised in Fed. R. Civ. P. 72(a) objections
is tantamount to an implicit denial of those claims and “a refusal
to overrule the magistrate judge’s order”); Alpine View Co. v.
Atlas Copco AB, 205 F.3d 208, 219-20 (5th Cir. 2000).
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PER CURIAM:
Anderson Benenhaley appeals the district court’s order
denying relief on his 28 U.S.C. § 2255 (2000) motion. We
previously granted a certificate of appealability on Benenhaley’s
claim that trial and appellate counsel were ineffective for failing
to assert that his second indictment on drug conspiracy charges
violated the thirty-day rule of the Speedy Trial Act (“STA”). We
now affirm the district court’s implicit denial of this claim. *
Under the STA, an indictment must be filed within thirty
days from the date on which a defendant is arrested. 18 U.S.C.
§ 3161(b) (2000). “The purpose of the STA’s thirty-day arrest-to-
indictment requirement is to ensure that the defendant is not held
under an arrest warrant for an excessive period without receiving
formal notice of the charge against which he must defend himself.”
United States v. Spagnuolo, 469 F.3d 39, 43 (1st Cir. 2006)
(internal quotation marks and citations omitted). Thus, § 3161(b)
generally is not triggered where the indictment precedes the
arrest.
Here, Benenhaley was initially indicted for conspiracy to
distribute methamphetamine on May 20, 1998. He was not arrested
until after the grand jury returned the indictment. Thus, his
initial indictment did not trigger § 3161(b). On February 8, 1999,

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the drug conspiracy charge was dismissed without prejudice;
however, Benenhaley remained in custody on separate charges. He
was indicted on new conspiracy charges on February 17, 1999, and a
new arrest warrant was issued and executed subsequent to the new
indictment. Again, because Benenhaley was indicted before his
arrest on the new charges, we find that § 3161(b) was not
triggered. Because there was no § 3161(b) violation, we find that
trial and appellate counsel were not ineffective for failing to
assert such a claim. See Strickland v. Washington, 466 U.S. 668,
687 (1984) (applying standard).
Accordingly, we affirm the district court’s implicit
rejection of this claim. Benenhaley’s motion to proceed in forma
pauperis on appeal is granted. We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the Court and argument would not aid the
decisional process.
AFFIRMED

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