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Jones v. United States

United States District Court, E.D. Tennessee, Chattanooga

February 10, 2017

KENNETH A. JONES, Petitioner,



         Before the Court is Petitioner's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. 170]. During pendency of the petition, Petitioner filed three “supplements” to the original filing; this Court construes each as a request for leave to amend [Docs. 182, 214, 224]. The most recent supplement relies on Johnson v. United States, 135 S.Ct. 2551 (2015), in which the Supreme Court held that the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), was unconstitutionally vague [Docs. 224, 225]. The United States filed multiple responses in opposition [Docs. 192, 230]; Petitioner submitted an affidavit in support of his claims [Doc. 171]. Also before the Court are pro se requests to “compel” [Docs. 234, 242], and for an extension of time to reply [Doc. 235]. For the following reasons, Petitioner's first and third motions for leave to amend [Doc. 182, 224] will be GRANTED, second motion for leave to amend [Doc. 214] will be DENIED, and amended petition [Docs. 170, 182, 225] will be DENIED and DISMISSED WITH PREJUDICE. The motions for an extension of time to reply and to compel [Docs. 234, 235, 242] will be DENIED as moot.

         I. BACKGROUND

         A. Facts regarding Petitioner's offense conduct, jury trial, and convictions

         The United States Court of Appeals for the Sixth Circuit summarized Petitioner's offense conduct as follows:

[This case] arose out of an incident which took place on June 11, 2006, in Chattanooga, Tennessee. Two Chattanooga police officers, Mickel Hoback and Derrick Pendergrass, were sitting in their patrol cars at a gas station when a woman approached them and complained that she had been robbed at gunpoint at a nearby residence. The officers drove her to the duplex where the incident allegedly occurred, and the officers walked up to the door of a screened-in porch in front of the house. The top half of the screen door to the porch had no glass or covering so that, from their vantage point, the officers could clearly observe individuals holding crack pipes and wiping a white powder from a coffee table.
The officers testified that they asked one of the individuals in the front of the house if they would mind if the officers entered, and the individual, later identified as James Richard Williams, replied, “No.” However, Williams testified at a suppression hearing prior to trial that he was not in the front of the house when the police came and did not give the officers permission to enter. It is not disputed that another individual, Thomas Tucker, unlocked the screen door to let the officers in.
Once inside, the officers observed powder residue on a table, and a crack pipe. Officer Hoback remained in the front part of the house while Officer Pendergrass, with Williams's permission, conducted a sweep of the rest of the house and gathered everyone into the front. When Pendergrass entered the kitchen, he found Jones and a female, later identified as Bridget Smith. Pendergrass also found, in plain view on a table where Jones was sitting, packaged and unpackaged powder and crack cocaine and a 9 mm pistol with the barrel pointed directly at Pendergrass. Pendergrass seized the cocaine and the gun. A subsequent lab report showed that Pendergrass seized 11.06 grams of cocaine base and 4.9 grams of powder cocaine.
Smith testified that she was in the kitchen with Jones at the duplex at the time police entered the home and that Jones had placed the cocaine and the gun on the table. She also testified that she had observed Jones cooking the powder into crack. Amy Newman was charged as a co-conspirator and testified that, in 2006, she received from $400 to $500 worth of cocaine from Jones and Smith each day. Newman had been present when Jones purchased powder cocaine from suppliers and cooked it into crack and had purchased drugs from Jones as early as October 2005.

[Doc. 164 pp. 1-2].

         On February 27, 2007 a federal grand jury returned a four count indictment against petitioner and co-defendant Amy Newman, alleging their involvement in a crack cocaine conspiracy and firearm possession [Doc. 1]. Petitioner and Newman were charged jointly with conspiracy to distribute fifty grams or more of cocaine base (“crack”), in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) (Count One); and knowingly possessing a firearm in furtherance of a drug-trafficking offense, in violation of 18 U.S.C. § 924(c)(1) (Count Two) [Id.]. Petitioner was charged individually with possession of firearm, in violation of 18 U.S.C. § 922(g)(1) (Count Three) [Id.].

         Petitioner made his initial appearance on May 3, 2007, and Attorneys Hallie McFadden and Hilary Stuart were appointed to represent him [Doc. 12]. On August 13, 2007, Attorneys McFadden and Stuart filed a motion to substitute counsel, citing “irreconcilable differences” between Petitioner and counsel [Doc. 28]. After a hearing on August 23, 2007, the motion was granted and Attorney John Brooks was appointed to represent Petitioner [Docs. 30, 31].

         On September 10, 2007, Newman pled guilty to Counts One and Two of the indictment [Doc. 32]. Shortly thereafter, petitioner through counsel filed a motion to suppress evidence obtained from a June 11, 2006, search of the residence at 3609 Third Avenue, Chattanooga, Tennessee [Doc. 37]. The Court denied the motion after an evidentiary hearing [Docs. 55, 58, 60]. On March 24, 2008, the scheduled trial date, Attorney Brooks was relieved as counsel pursuant to an oral motion to withdraw [Docs. 84, 86]. Attorney Dan Ripper was appointed as replacement counsel and the trial date was rescheduled [Docs. 86, 89].

         On July 14, 2008, petitioner proceeded to trial [Docs. 107-109]. On July 16, 2008, the jury returned guilty verdicts on the lesser included offense in Count One of conspiracy to distribute more than 5 grams of crack cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B), and guilty as charged on Counts Two and Three [Doc. 112].

         Petitioner through counsel filed a written motion for judgment of acquittal under Fed. R. Crim. P. 29 [Doc. 122]. Petitioner also filed three pro se motions: a motion to dismiss, a motion for new trial under Fed. R. Crim. P. 33(a), and a motion to appoint new counsel [Docs. 123- 125]. After an attorney representation hearing was held, Petitioner's motion for new counsel was denied [Doc. 128]. On November 3, 2008, the Court issued a memorandum order denying Petitioner's motion for acquittal and new trial [Doc. 135].

         B. Facts Regarding Petitioner's Sentence and Direct Appeal

         In calculating the applicable Guidelines range, using the 2007 version of the Sentencing Guidelines, the United States Probation Office noted that Petitioner was responsible for distributing more than 5 grams of cocaine base, resulting in a base offense level of twenty-four for Count One [Presentence Report (PSR) at ¶ 19]. For the drug conspiracy calculations, Petitioner received a two-level enhancement yielding an adjusted offense level of twenty-six [Id. ¶¶ 22-24]. This enhancement was pursuant to Section 3B1.1(c) of the United States Sentencing Guidelines for his role in the offense by which individuals worked at his direction in the distribution, delivering, and taking payment of drugs [Id.]. No enhancement was applied for possession of a dangerous weapon in connection with the drug offense because Petitioner was also convicted under 18 U.S.C. § 924(c) [Id. ¶ 20]. For the § 924(c) count, Petitioner was subjected to a mandatory term of Life imprisonment, pursuant to the enhancement provisions of 18 U.S.C. § 3559(c), due to his prior armed and aggravated robbery convictions [Id. ¶ 25]. Lastly, for the § 922(g) count, the Guidelines called for a base offense level of twenty-four given that Petitioner had sustained at least two felony convictions for crimes of violence previous to committing the instant offense [Id. ¶ 26].

         Petitioner had twelve criminal history points, resulting in a criminal history category of V, however, this was enhanced to VI because he was deemed to be a career offender, pursuant to Section 4B1.1(b), and an armed career criminal, pursuant to Section 4B1.4(c)(2) [Id. ¶¶ 53-55]. Petitioner's was initially assigned an adjusted offense level of twenty-six for Count One, but that level was increased to thirty-seven under Section 4B1.1(b)(A); the result: 360 months to Life for Count One [Id. ¶ 35]. When combined with the mandatory term of Life for the § 924(c) count, Petitioner's received an effective range of Life imprisonment [Id. ¶ 72].

         The Court found that the PSR correctly stated the applicable facts and accurately calculated Petitioner's Guidelines range, and sentenced petitioner to imprisonment for a term of 360 months on Counts One and Three, to be served concurrently, plus Life on Count Two, to be served consecutively [Doc. 139]. Petitioner filed two more motions for new trial, which this Court denied on July 23, 2010 [Docs. 147, 155], and December 2, 2010 [Docs. 151, 159].

         Petitioner appealed, challenging the Court's denial of his suppression motion and dismissal of motions for new trial based upon a sufficiency of evidence theory [Doc. 164]. On September 19, 2011, the Sixth Circuit affirmed Petitioner's convictions and sentence, finding that the Court “properly denied [Petitioner's] motion to suppress, ” and that “the evidence presented at [Petitioner's] trial was more than sufficient to sustain his conviction for conspiracy to distribute in excess of [5] grams of crack cocaine” [Id. at 4, 6]. The Supreme Court denied Petitioner's request for a writ of certiorari on January 24, 2012 [Doc. 169].

         Two and a half months later-on March 15, 2012-Petitioner filed the instant collateral challenge with nineteen grounds for relief [Doc. 170]. Petitioner filed his first supplement on August 16, 2012, reiterating several of the facts and arguments set forth in his original petition [Doc. 182]. He filed a second supplement on January 21, 2014, asserting several novel grounds for collateral relief [Docs. 214, 215], and a third supplement on June 1, 2016, seeking relief based on the Johnson decision [Docs. 224, 225].


         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the one-year statute of limitations applicable to collateral challenges under § 2255 runs from the latest of: (1) “the date on which the judgment of conviction becomes final;” (2) “the date on which the impediment to making a motion created by Governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such Governmental action;” (3) “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review;” or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2255(f). Amended claims and defenses are subject to the same limitations period as the original motion. Cameron v. United States, No. 1:05-cv-264, 2012 WL 1150490, at *3-6 (E.D. Tenn. April 5, 2012) (citing Olsen v. United States, 27 F.App'x 566 (6th Cir. Dec. 14, 2001)). Petitioner has failed to demonstrate that subsections (f)(2) or (f)(4) apply to his case. i.e., he has not established that any illegal action by the government prevented him from making the timely petition or the existence of facts affecting his case that could not have previously been discovered through the exercise of due diligence. As such, timeliness of the petition [Doc. 170] and proposed supplements [Docs. 182, 214, 224] depend on whether or not Petitioner submitted those documents in compliance with subsections (f)(1) and (f)(3).

         A. Timeliness of Original Petition and Proposed Amendments

         For purposes of the subsection (f)(1)-where the statutory period expires one year from the date on which the judgment of conviction becomes final-a “conviction becomes final at the conclusion of direct review.” Brown v. United States, 20 F.App'x 373, 374 (6th Cir. 2001) (quoting Johnson v. United States, 246 F.3d 655, 657 (6th Cir. 2001)). Where a defendant pursues direct review through to a petition for certiorari, direct review concludes when the Supreme Court either denies the petition for certiorari or decides the case. Clay v. United States, 537 U.S. 522, 532 (2003). Petitioner's one-year period for requesting relief under subsection (f)(1) expired on January 24, 2013, one year after his conviction became final for purposes of that section on January 24, 2012 [Doc. 169]. The original petition-filed on March 15, 2012- and first supplement-placed in the prison mail system on February 9, 2012-fall safely within the permissible period. As such, the motion associated with the latter will be granted.[1] Neither the second nor third supplements were filed within the window for requesting timely relief under subsection (f)(1).

         While it is true that Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend should “be freely given when justice so requires, ” Fed.R.Civ.P. 15(a), relevant factors include “undue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment.” Anderson v. Young Touchstone Co., 735 F.Supp.2d 831, 833 (W.D. Tenn. 2010) (quoting Forman v. Davis, 371 U.S. 178, 182 (1965)). Because futility of the proposed amendment is a permissible basis on which to deny a motion for leave to amend, see Forman, 371 U.S. at 182 (noting grant or denial of a motion to amend is within the discretion of the district court), resolution of Petitioner's second and third motions to amend depend on compliance with subsection (f)(3), equitable tolling of the window under subsection (f)(1), or relation back of the proposed claims to a timely-filed ground of collateral attack.

         The second supplement articulates several theories of ineffective assistance, prosecutorial misconduct, and legal error [Doc. 215]. The ineffective assistance claims cite: failure to convey a plea offer from the United States [Id. at 2]; failure to object to several portions of the prosecutor's closing argument [Id. at 2-3, 7]; and failure to make certain objections to the jury instructions [Id. at 7-12]. The prosecutorial misconduct claims suggest that the prosecutor: allowed a witness to commit perjury [Id. at 4-5]; told the jury that Petitioner was “extorting money from people for drugs” [Id. at 3, 5-6]; and mentioned Petitioner's prior state charges for armed robbery [Id. at 6-7]. In addition to the foregoing, the supplement claims that Petitioner's “sentence under the ACCA is unconstitutional” and that “the Supreme Court may rule that the entire ACCA is unconstitutionally vague” [Id. at 5]. The third supplement challenges his ACCA designation, career offender enhancement, and § 924(c) conviction based on the Johnson decision [Doc. 224].

         To the extent Petitioner attempts to rely on subsection (f)(3)'s independent one-year filing period for relief based on a newly-recognized right made retroactively applicable on collateral review to justify submission of the second and third supplements after January 24, 2013, only the latter filing arguably satisfies the conditions required to trigger the renewed limitations period. See 28 U.S.C. § 2255(f)(3) (requiring reliance on a newly recognized and retroactively applicable right); see also Welch v. United States, 136 S.Ct. 1257, 1265 (2016) (“Johnson is . . . a substantive decision and so has retroactive effect . . . in cases on collateral review.”); In re Windy Watkins, 810 F.3d 375, 380-81 (6th Cir. 2015) (finding Johnson constitutes a new substantive rule of constitutional law made retroactively applicable on collateral review and thus triggers § 2255(h)(2)'s requirement for certification of a second or successive petition). Accordingly, the third motion for leave to amend will be granted; resolution of the second motion for leave to amend depends on tolling of the statute of limitations or relation back of untimely claims.

         B. Equitable Tolling of Subsection (f)(1)

         Section 2255(f)'s statute of limitations is not jurisdictional and may be tolled under limited, extraordinary circumstances. Dunlap v. United States, 250 F.3d 101, 1007 (6lth Cir. 2001). Used sparingly, a petitioner bears the burden of establishing that equitable tolling applies to her case, see Jurado v. Burt, 337 F.3d 638, 642 (6th Cir. 2003); Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004), and must show “(1) that [s]he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in [her] way and prevented timely filing, ” Holland v. Florida, 130 S.Ct. 2549, 2562 (2010); Hail v. Warden, 662 F.3d 745, 750 (6th Cir. 2011); see also Jurado, 337 F.3d at 643 (“Absent compelling equitable considerations, a court should not extend limitations by even a single day.”).

         Review of the original petition and later-filed supplements fail to reveal a single extraordinary circumstance justifying Petitioner's failure submit those filings within the one-year window permitted by subsection (f)(1). Compare Stovall v. United States, No. 1:12-cv-377, 2013 WL 392467, at *3 (E.D.T.N. Jan. 31, 2013) (rejecting request for equitable tolling of subsection (f)(1) in absence of evidence illustrating a diligent pursuit of the rights asserted); with Jones v. United States, 689 F.3d 621, 627 (6th Cir. 2012) (granting request for equitable tolling where the petitioner pled facts indicating he had been separated from his legal materials for an extended period of time due to multiple detention transfers and an illness). As such, no tolling will occur.

         C. Relation Back Under Rule 15(c)

         When an amendment is untimely, the Court looks to Rule 15(c) to determine whether the proposed claim “relate[s] back” to a timely, original pleading and is thus saved from being time barred by expiration of the statute of limitations. Mayle v. Felix, 545 U.S. 644, 656-57 (2005), overruled on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562-63 (2007). The amended claim relates back if it “ar[i]se[s] out of the [same] conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” Fed.R.Civ.P. 15(c)(2). The Supreme Court has rejected a broad reading of “conduct, transaction, or occurrence” in the context of post-conviction relief and explained an amended petition will not relate back “when it asserts a new ground for relief supported by facts that differ in both time and type from those [set forth in] the original pleading.” Felix, 545 U.S. at 650. In other words, “relation back depends on the existence of a common ‘core of operative facts' uniting the original and newly asserted claims.” Id. at 658 (citations omitted).

         For purposes of the instant case, comparison of the claims in Petitioner's second supplement with those raised in the timely petition and supplements reveal that none of the grounds in the former share a core of operative fact with any of the grounds in the latter. This conclusion is bolstered by the fact that Petitioner himself characterizes the arguments in his second supplement as “new” freestanding claims. Because it would be futile to supplement the amended petition with time-barred grounds, the second request for leave to amend will be denied.


         In addition to the amended petition, the Court is in possession of Petitioner's pro se motion for an extension of time to file a reply to the United States' response in opposition to Petitioner's second and third motions for leave to amend [Doc. 235]. Because Petitioner has failed to file a reply in the thirteen months since the Court granted his last request for an extension [Docs. 232, 233], the motion will be denied. Also before the Court are a pair of pro se requests that the Court “compel” officials at the Bureau of Prisons to return legal papers lost when Petitioner was moved between federal facilities [Docs. 234, 242].[2] Because Petitioner has not made the content or necessity of these materials clear and because there is no need for additional briefing in the instant matter, these pro se motions will be denied.


         To obtain relief under 28 U.S.C. § 2255, a petitioner must demonstrate “(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law . . . so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). He “must clear a significantly higher hurdle than would exist on direct appeal” and establish a “fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process.” Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998).

         V. ANALYSIS

         The supplemented petition contains twenty grounds for collateral relief: fifteen allege ineffective assistance of counsel, six argue prosecutorial misconduct, and three assert legal error. The ineffective assistance claims challenge: failure to attack the indictment based on the fact that African Americans were systematically excluded from the grand jury and a “federal hold” was placed on Petitioner's case (Ground One) [Doc. 170 pp. 23-27]; failure to call all four of the witnesses that Petitioner identified as material to his defense (Ground Two) [Id. at 8]; failure to investigate allegations that Officer Pendergrass was corrupt (Ground Three) [Id. at 20-2]; failure to investigate allegations that Officer Pendergrass or Bridgett Smith planted key evidence (Ground Four) [Id. at 20-22, 25-26]; failure to shape the defense strategy around the above allegations of corruption and fabricated evidence (Ground Five) [Id. at 25-26]; failure to investigate a potential breach in chain of custody of the drugs tested by Tennessee Bureau of Investigation (TBI) (Ground Six) [Id. at 19-20, 22-23]; failure to investigate whether the juror who went missing during deliberation participated in a “mock trial” at home (Ground Seven) [Id. at 23-24]; failure to seek a “Remmer hearing” after learning that the above-referenced juror left the courthouse without permission (Ground Eight) [Id. at 24-25]; failure to seek mistrial based on the resulting breach in juror separation (Ground Nine) [Id. at 16-17]; encouraging Petitioner to commit perjury (Ground Ten) [Id. at 36]; and failure to request a writ of certiorari (Ground Eleven) [Id. at 15]. The claims of prosecutorial misconduct allege: failure to disclose that the United States “imposed [its] might” on the grand jury in an effort to obtain an indictment (Ground Twelve) [Id. at 37-39]; improper introduction of letter implying the existence of a “subsidiary conspiracy” (Ground Thirteen) [Id. at 4]; failure to disclose Brady and Giglio materials (Ground Fourteen) [Id. at 5]; failure to provide defense counsel with a list of expert witnesses and provide information about their testimony (Ground Fifteen) [Id. at 27-28]; facilitation of perjury by Officer Pendergrass (Ground Sixteen) [Id. at 28-31]; and alteration of Officer Pendergrass's affidavit with goal of “covering up” that perjury (Ground Seventeen) [Id. at 33-35]. The allegations of legal error are: Petitioner's absence during discussions about the missing juror (Ground Eighteen) [Id. at 7]; the Court's failure to properly address juror absence or remedy situation by “admonishing” members of the jury (Ground Nineteen) [Id. at 18, 19, 31- 32]; and improper categorization as an armed career criminal, enhancement as career offender, and § 924(c) conviction in light of the Johnson decision (Ground Twenty) [Doc. 225].[3]

         A. Ineffective Assistance Claims

         A petitioner alleging ineffective assistance must satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1987). First, the petitioner must establish, by identifying specific acts or omissions, that counsel's performance was deficient and that counsel did not provide “reasonably effective assistance, ” id., as measured by “prevailing professional norms, ” Rompilla v. Beard, 545 U.S. 374, 380 (2005). Counsel's assistance is presumed to have been effective, and the petitioner bears the burden of showing otherwise. Mason v. Mitchell, 320 F.3d 604, 616-17 (6th Cir. 2003); see also Strickland, 466 U.S. at 689 (a reviewing court “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that . . . the challenged action might be considered sound . . . strategy” (internal citation omitted)).

         Second, the petitioner must demonstrate “a reasonable probability that, but for [counsel's acts or omissions], the result of the proceedings would have been different.” Strickland, 466 U.S. at 694. “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691; see also Smith v. Robbins, 528 U.S. 259, 285-86 (2000). If a petitioner fails to prove that he sustained prejudice, the Court need not decide whether counsel's performance was deficient. See United States v. Hynes, 467 F.3d 951, 970 (6th Cir. 2006) (holding that alleged “flaws” in trial counsel's representation did not warrant a new trial where the claims, even if true, did not demonstrate that the jury would have reached a different conclusion).

         1. Grounds One: Failure to Attack Indictment

         Petitioner argues that counsel was ineffective for failing to attack the indictment on the basis that African Americans were systematically excluded from the grand jury and because the Court put his case on what Petitioner characterizes as a “federal hold” for more than a year.

         The first theory-grand jury composition-fails because Petitioner bears the burden of articulating sufficient facts to state a viable claim for relief and conclusory statements without substantiating allegations of specific facts fail to state a cognizable claim under § 2255. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972). The unsupported allegation that African Americans were systematically excluded from the grand jury without any evidence of the same falls short of the level of proof necessary to succeed on collateral review. See O'Malley v. United States, 285 F.2d 733, 735 (6th Cir. 1961) (“Conclusions, not substantiated by allegations of fact with some probability of verity, are not sufficient to warrant a hearing.”).

         The Court interprets Petitioner's second theory-placement of a “federal hold” on his case-as a suggestion that counsel should have requested dismissal based on a violation of the Speedy Trial Act. That Act requires “[i]n any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days of the filing date of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.” 18 U.S.C. 3161(c)(1). Exclusions are allowed for:

Any period of delay resulting from other proceedings concerning the defendant, including but not limited to . . . (D) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of such motion . . . and (H) delay reasonably attributable to any period, not exceeding ...

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