That conclusion does not mean that the district court should have dismissed all the charges against Greenup. In United States v. Nabors, 901 F.2d 1351 (6th Cir.1990), the defendant was arrested and a complaint was issued for attempted murder of a federal agent. Thirty-three days later, he was indicted for that charge and several others. Id. at 1353. Pursuant to the Speedy Trial Act, the district court dismissed the attempted murder charge but allowed the rest of the indictment to proceed. Id. at 1355. This court affirmed, stating:

The statutory and constitutional provisions governing the speedy trial of a criminal defendant do not require that every offense chargeable from a criminal episode be dismissed for failing to comply with the thirty-day time limit for indictments following an arrest. Rather, 18 U.S.C. § 3162(a)(1) only requires the dismissal of the offense charged in the complaint for a violation of 18 U.S.C. § 3161(b).

Id. The Eleventh Circuit has explained: "The Speedy Trial Act does not guarantee that an arrested individual indicted within thirty days of his arrest must, in that thirty-day period, be indicted for every crime known to the government, failing which he may never be charged." United States v. Mosquera, 95 F.3d 1012, 1013 (11th Cir.1996); see also United States v. Clay, 925 F.2d 299, 302 (9th Cir.1991) overruling on other grounds recognized in Rodriguera v. United States, 954 F.2d 1465 (9th Cir.1992). Therefore, a complaint or other original accusatory document starts the speedy trial clock only as to the offenses included in that complaint. United States v. Bailey, 111 F.3d 1229, 1236 (5th Cir.1997). The government's failure to issue an indictment within thirty days as to the charges in the complaint has no effect on charges the government subsequently files. Id. Therefore, the district court correctly remedied the ineffective assistance of counsel as to the indictment by dismissing the attempted kidnaping charge.

Greenup also assigns error to the district court's decision to dismiss the attempted kidnaping charge without prejudice. A court considers three factors to determine if a charge should be dismissed with or without prejudice: (1) seriousness of the offense; (2) the facts and circumstances leading to dismissal; and (3) the impact of reprosecution on the administration of the Speedy Trial Act and on the administration of justice. 18 U.S.C. § 3162(a)(1). The district court dismissed the attempted kidnaping charge without prejudice because it concluded the offense is serious, Greenup's inconsistent and changing positions on his plea and cooperation were the causes of the delay, and a reprosecution would not be prejudicial. Greenup admits that these last two conclusions are findings of fact subject to a clear error standard of review. He argues that the delay was not caused by his changed positions on pleading guilty and that he would be prejudiced by a retrial. After conducting a three day evidentiary hearing on the motion to vacate, the district court weighed the evidence and came to the conclusions above. Evidence in the record supports the district court's conclusions, and they were not in clear error. Moreover, Greenup has not shown the delay was in bad faith, that he suffered any actual prejudice because of the delay (such as unavailability of witnesses), or that "the government engaged in any improper behavior which must be deterred in order to ensure compliance with the [Speedy Trial] Act." Campbell v. United States, 364 F.3d 727, 731 (6th Cir.2004). Dismissal without prejudice was appropriate.

Greenup alleges that his counsel was ineffective for failing to argue that his trial was held too late. The Speedy Trial Act provides that the trial of a defendant shall commence within seventy days "from the filing date (and making public) 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). The district court denied Greenup's motion based on his allegation that his right to a speedy trial was violated. His trial began July 8, 1997, 99 days after he withdrew his plea on March 31, 1997, but the district court reasoned that 50 days were excludable because of Greenup's changing positions on the plea agreement, and the superceding indictment started a new 70 day clock.

March 31, 1997 is the date the district court granted Greenup's motion to withdraw his plea and as such is the starting date for the speedy trial clock.4 The district court was mistaken when it deducted 50 days for Greenup's motion to withdraw his plea because those days preceded March 31, 1997. Three other time periods, however, are excludable. First, at least 30 days is excludable due to a motion filed by Greenup's attorney. Greenup's attorney filed a motion for continuance on May 23, 1997. The motion was set for hearing on June 30, 1997. At the hearing, Greenup refused to waive his right to a speedy trial, and the trial proceeded as originally scheduled on July 8, 1997.

Under 18 U.S.C. § 3161(h)(1)(F), delay resulting from any pretrial motion is excludable.5 If a motion requires a hearing, the time between the filing of the motion and the conclusion of the hearing is automatically excluded. United States v. Mentz, 840 F.2d 315, 326 (6th Cir.1988). If the motion is not resolved at the hearing, a maximum of 30 days beyond the hearing is excluded until the motion is resolved. Id. If a motion does not require a hearing, the Speedy Trial Act excludes the time it takes the court to resolve the motion, up to a maximum 30 days. Id. at 327.

A motion for continuance does not require a hearing if there are no facts in dispute. United States v. Bowe, 221 F.3d 1183, 1189 (11th Cir.2000). Greenup's attorney and the government agreed to a continuance, Greenup's attorney so he would have more time to prepare in light of the superceding indictment and the government because the lead counsel on the case would be unavailable July 8 for medical reasons. The district court denied the motion, however, because Greenup refused to waive his right to a speedy trial and wanted the trial to commence on July 8. This court need not decide whether the motion required a hearing because even if the motion did not require a hearing, the disposition of the motion created 30 excludable days.

Second, the period from April 28, 1997 to May 5, 1997 is excluded because of Greenup's attempt to enter another guilty plea. Third, on July 3, 1997, Greenup filed a motion to suppress his confession. The district court held a hearing on July 8, 1997. The suppression motion created an additional 6 days of excusable days, for a total of 44. Therefore, the trial was held 55 countable days after the withdrawal of the plea, well within the 70 day limit.

Greenup argues that his motion for a continuance did not actually cause any delay because the district court set the July trial date before his attorney filed the motion. This court stated in United States v. Robinson that the § 3161(h)(1)(F) exclusions are automatic and do not require actual causation. 887 F.2d 651, 655-57 (6th Cir.1989). Several other circuits have reached the same conclusion. United States v. Vogl, 374 F.3d 976, 985 (10th Cir.2004); United States v. Parker, 30 F.3d 542, 549-50 (4th Cir.1994); United States v. Montoya, 827 F.2d 143, 151 (7th Cir.1987). Therefore, the motion need not have actually caused the delay in order for this court to properly exclude days because of its filing. Greenup's trial did not violate the Speedy Trial Act.

Greenup must prove two elements to establish ineffective assistance of counsel: his attorney's performance was deficient, and the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To satisfy the first prong, a defendant must show his counsel made errors so serious he was not functioning as the "counsel" guaranteed by the Sixth Amendment. Id. To satisfy the second prong, he must show "that there [was] a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. Greenup argues his counsel was ineffective in numerous ways. Each is addressed in turn.

Greenup claims his counsel was ineffective by failing to move to dismiss the indictment because it violated the Speedy Trial Act. While this failure may constitute ineffective assistance of counsel, the district court already remedied any ineffective assistance by dismissing the attempted kidnaping charge.

When a defendant has received ineffective assistance of counsel, the district court has the power to remedy the violation by placing the defendant in the same position he was in prior to the ineffective assistance. United States v. Allen, 53 Fed.Appx. 367, 373-74 (6th Cir. 2002) (holding that a plea bargain could be reinstated following a finding that the defendant's attorney was ineffective in his failure to adequately present the plea offer in the first place).

Here, had Greenup's attorney been aware of the speedy trial issue and moved to dismiss the indictment on that ground, the correct disposition of the motion would have been to dismiss the attempted kidnaping charge because it was identical to the charge in the original complaint.

As discussed above, the trial did not violate the Speedy Trial Act, and so Greenup's attorney was not ineffective for failing to raise that issue.

3. Failure to accompany Greenup to a meeting with the government

Watson did not accompany Greenup to a preparation session with federal officials regarding an upcoming trial of a third party. An investigator from the federal defender's office accompanied Greenup instead. Afterwards, the government expressed its concerns to Watson about Greenup's credibility and eventually dropped the charges against the other party. Following those events, the government entered into a plea agreement with Greenup that was based in part on the government's disbelief of Greenup's version of events.

This court has never found that a criminal defendant has a right to an attorney at a debriefing with government agents in the course of the defendant's attempted cooperation.6 This court has recognized that a defendant is entitled to an attorney during plea negotiations, United States v. Sammons, 918 F.2d 592, 602 (6th Cir.1990), but has not extended that right to a debriefing. This panel need not decide that issue here. Even if such a right exists, and even if Greenup's attorney performed his function unreasonably by not attending the meeting, thus satisfying the first Strickland prong, Greenup must still show prejudice.7 There is none here. Greenup withdrew his plea, and the district court did not accept Greenup's subsequent plea attempt because he refused to fully admit his guilt. Therefore, no matter if the government's skepticism of Greenup's candor in the debriefing session caused the government's plea offer to be different than it would have been otherwise, Greenup did not follow through on his promise to plead guilty, and so the government's end of the bargain is immaterial.

4. Failure to negotiate a binding plea agreement under Rule 11(e)(1)(C)

Greenup contends that Watson should have negotiated a binding plea agreement under Fed.R.Crim.P. 11(e)(1)(C) instead of an agreement wherein the government merely recommends a sentence to the district court. Watson testified at the evidentiary hearing that the U.S. Attorney in that district will only agree to 11(e)(1)(C) agreements in "very extraordinary circumstances." Greenup has not shown that Watson was so ineffective that he failed to act as his counsel by determining that negotiations for a 11(e)(1)(C) agreement would be futile. And again, Greenup refused to admit his guilt, so the type of agreement did not prejudice him.

5. Failure to hold the government to its promise not to use Greenup's confession against him

At the May 5, 1997 guilty plea hearing, the government stated that it was prosecuting the case without Greenup's confession. The government also stated that whether the confession was suppressed or not, it could make its case against Greenup. Greenup lost his motion to suppress the confession, and the government used it against him at trial. Greenup argues that the government must be bound by its promise, but the decisions he cites involve promises made in plea bargains, which is not the case here. See Bemis v. United States, 30 F.3d 220 (1st Cir.1994); Palermo v. Warden, 545 F.2d 286 (2nd Cir.1976). He fails to cite any case which provides grounds for enforcing a promise made by the government not in connection with a plea agreement. Therefore, Watson did not fail to provide effective assistance of counsel by failing to move to exclude the confession because of the government's statement because such a motion would have been unsuccessful.

6. Failure to hold the government to its promise not to bring § 924(c) charges against Greenup

The government wrote a letter on June 6, 1996, stating: "In recognition of his cooperation concerning the Montgomery County Jail attempted escape, threats made by other inmates, and the information concerning narcotics he has provided, the government will not require that your client enter a plea of guilty to a charge of violating 18 U.S.C. § 924(c)." That statement was in a plea agreement offer in which Greenup was to enter a plea of guilty to one count of attempted kidnaping. At the hearing on Greenup's motion to withdraw his guilty plea, the government stated its intention to bring additional charges against him if he withdrew his guilty plea. Even though Greenup sought to withdraw his motion, and then sought to enter another guilty plea five weeks later, the district court rejected his attempts because he would not fully admit his guilt. Therefore, the government was not precluded from bringing § 924(c) charges against Greenup, and Watson was not ineffective counsel for failing to raise this argument.

7. Failure to argue that Greenup's sentencing guidelines should not be enhanced

Greenup argues that his counsel was ineffective at sentencing for failing to argue that the district court double counted his firearm by imposing a weapons enhancement even though he was also convicted on the § 924(c) count. Greenup raised the issue himself at the sentencing hearing, but the district court overruled his objection. Greenup filed a motion to modify his sentence based upon Amendment 599 to the United States Sentencing Guidelines, which codified the prohibition against double counting. Greenup II, at *620. The district court denied his motion, and this court affirmed, finding that the district court properly exercised its discretion in denying Greenup's request for a sentence modification. Id. This court finds that Edwards was reasonable in deciding to omit an argument that the district court and this court have rejected.

Greenup also argues that Edwards was ineffective because at the sentencing hearing, Edwards failed to argue that Greenup was entitled to a three point reduction under § 2X1.1, forcing Greenup to argue the point himself. In Greenup I, this court held that the district court properly refused to grant Greenup a § 2X1.1 offense level reduction. Edwards was not ineffective for failing to raise the issue himself.

8. Ineffective assistance on the direct appeal

Greenup argues that his attorney was professionally unreasonable by failing to raise numerous issues in Greenup's direct appeal. The district court held that an appellate attorney's decision not to raise some bases for an appeal does not constitute prejudice. This court has previously offered several non-exclusive considerations for determining whether an appellate attorney met the first part of the Strickland test by omitting issues on appeal:

(1) Were the omitted issues "significant and obvious"?

(2) Was there arguably contrary authority on the omitted issues?

(3) Were the omitted issues clearly stronger than those presented?

(4) Were the omitted issues objected to at trial?

(5) Were the trial court's rulings subject to deference on appeal?

(6) Did appellate counsel testify in a collateral proceeding as to his appeal strategy and, if so, were the justifications reasonable?

(7) What was appellate counsel's level of experience and expertise?

(8) Did the petitioner and appellate counsel meet and go over possible issues?

(9) Is there evidence that counsel reviewed all the facts?

(10) Were the omitted issues dealt with in other assignments of error?

(11) Was the decision to omit an issue an unreasonable one which only an incompetent attorney would adopt?

Mapes v. Coyle, 171 F.3d 408, 427-28 (6th Cir.1999).

Greenup's claim for ineffective assistance of counsel on direct appeal parallels his other grounds to vacate his sentence, as he insists that all of the issues discussed above should have been raised on direct appeal. For the reasons stated above, only the speedy indictment argument had merit, which the district court remedied by dismissing the attempted kidnaping charge. Appellate counsel was not ineffective for failing to raise meritless arguments on appeal.

For the reasons stated above, Greenup's bond motion is DENIED as moot, and the district court's order is AFFIRMED.