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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-5140
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICKY MARTIN JERNIGAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
May 2, 1994
Before POLITZ, Chief Judge, JOLLY and DUHи, Circuit Judges.
POLITZ, Chief Judge:
Ricky Martin Jernigan appeals his jury conviction of
conspiracy to possess marihuana with intent to distribute,
21 U.S.C. її 841(a)(1) & 841(b)(1)(vii). We affirm.
Background
Jernigan was arrested in September 1990 after purchasing 175
pounds of marihuana from undercover agents of the Drug Enforcement
Administration. He was indicted for conspiracy to possess
marihuana with intent to distribute, entered a plea of not guilty,
and his trial was scheduled for November 19, 1990. Jernigan moved

for and was given four continuances, variously citing counsel's
scheduling conflicts and seeking time to pursue plea negotiations
or psychological testing, and it was not until March 12, 1993 that
his jury trial finally commenced after his fifth request for a
continuance was denied. Convicted and sentenced to 63 months
imprisonment and a period of supervised release, Jernigan timely
appealed.
Analysis
Jernigan's primary assignment of error on appeal is the
alleged deprivation of both statutory and constitutional rights to
a speedy trial. By statute, a criminal defendant must be brought
to trial within 70 countable days of his indictment.1 Because
Jernigan did not move for dismissal on this ground in the district
court we do not address same.2
Jernigan's claim of sixth amendment delay is resolved by
considering four factors: (1) the length of the delay; (2) the
reason for the delay; (3) when the defendant asserted his right;
and (4) any prejudice to the defendant resulting from the delay.3
While a pretrial span of nearly three years raises an inference of
118 U.S.C. ї 3161(c)(1). Although Jernigan signed documents
waiving his right to a speedy trial, such waiver documents are
generally ineffective. United States v. Willis, 958 F.2d 60 (5th
Cir. 1992).
2"Failure of the defendant to move for dismissal prior to
trial . . . shall constitute a waiver of the right to dismissal"
under the Speedy Trial Act. 18 U.S.C. ї 3162(a)(2). See also
United States v. Milhim, 702 F.2d 522 (5th Cir. 1983).
3United States v. Garcia, 995 F.2d 556 (5th Cir. 1993) (citing
Barker v. Wingo, 407 U.S. 514 (1972)).
2

tainting delay,4 in the instant case the remaining factors militate
against finding a constitutional violation. The delays were
attributable primarily to Jernigan's multiple requests for
contintuances.5 It is to be noted that Jernigan did not complain
of any delay prior to this appeal. Further, as to prejudice,6
Jernigan alleges that a belated psychiatric examination by the
government's expert prevented the jury from understanding his
mental state at the time of the crime. At trial, however, Jernigan
offered testimony from two expert witnesses who examined him in
1990. On this record, the complained-of delay caused no possible
prejudice. Application of the four-factor Garcia/Barker test
discloses no sixth amendment violation.
Jernigan's second assignment of error alleges ineffective
assistance based upon counsel's failure to have his two
psychiatrists testify in person at a competency hearing. To
establish a claim for ineffective assistance Jernigan must
demonstrate that counsel's performance was outside a broad range of
reasonable conduct and, but for counsel's ineffectiveness, the
4Robinson v. Whitley, 2 F.3d 562 (5th Cir. 1993), cert.
denied, 114 S.Ct. 1197 (1994).
5Nelson v. Hargett, 989 F.2d 847 (5th Cir. 1993) (defendant
will not be heard to complain of lapses of time attributable to
continuances he sought). Jernigan specifically complains that his
December 5, 1990 request for a continuance of roughly one month
should not have led to a delay of more than a year. In isolation
this fact might give rise to a sixth amendment claim. In the
instant case, however, Jernigan's argument is stripped of all force
by the fact that he sought at least three additional continuances
after the complained-of delay.
6A defendant responsible for "the lion's share" of a delay
must demonstrate "concrete proof" of prejudice. Id.
3

result of the competency hearing likely would have been different.7
Unlike in Hull v. Freeman,8 where counsel allowed the testimony of
the government's expert to go unchallenged, counsel herein offered
the reports of the two defense psychiatrists and aggressively
cross-examined the government's expert. Further, having heard the
evidence on Jernigan's state of mind, the jury rejected his defense
of diminished capacity. We are not persuaded that on these facts
it is likely that there would have been a different outcome had
Jernigan's psychiatrists been present in person for the competency
hearing.
Jernigan's remaining contentions are without merit.
AFFIRMED.
7Strickland v. Washington, 466 U.S. 668 (1984).
8932 F.2d 159 (3d Cir. 1991).
4