Nichols v. United StatesNichols v. United States
Lead Opinion
OPINION
We granted en banc rеview to decide an important constitutional question: whether — and if so, under what conditions — a criminal defense attorney renders “deficient performance” under Strickland’s ineffective-assistance-of-counsel rubric by failing to preserve a future-change-in-the-law argument in the hope that the Supreme Court will strike down the existing law while that defendant’s case is still pending on direct appeal.
But, because this particular defendant cannot prevail on his claim of ineffective assistance of counsel in any event, inasmuch as he cannot demonstrate the necessary prejudice, we find that we need not decide this broader constitutional question. See, e.g., Pearson v. Callahan, 555 U.S. -,
This defendant’s only claim of prejudice is that he was denied the benefit of Booker's change in the law; that is, he missed the opportunity to be re-sentenced under a post-Booker, advisory Guidelines scheme. But, as it turns out, the only way this defendant could have obtained the benefit of Booker’s change in the law was by petitioning the Supreme Court for certiorari, which he did not do; this prejudice is therefore the direct and sole consequence of the failure to petition for certiorari. Because defendants are not constitutionally entitled to the assistance of counsel in preparing petitions for certiorari, see Ross v. Moffitt,
I.
On April 27, 2000, a federal grand jury indicted Carlton Smith and Thomas Nich
By the time of their sentencing, the Supreme Court’s decision in Apprendi v. New Jersey,
Shortly after the Apprendi decision, this circuit (on September 4, 2001) considered and rejected an Apprendi-based challenge to the Federal Sentencing Guidelines, explaining:
Appellant [ ] makes the novel argument that Apprendi also should apply to [Federal Sentencing] Guideline enhancements even where the statutory maximum is not exceeded, and that these enhancements are questions that should be decided by a jury, not a trial judge. The holding in Apprendi, however, does not remove this discretion from a district judge, and therefore, Appellant’s argument is without merit.
United States v. Schulte,
In this circuit, Apprendi has been held to apply when the district court determined a fact that caused the defendant’s sentence to exceed a statutory maximum or, under some limited circumstances, that required a statutorily mandated minimum sentence, without a jury determining the fact beyond a reasonable doubt. Apprendi has never been held to apply to every fact that increases the defendant’s sentence within the rubric of the [Federal Sentencing Guidelines.
United States v. Chapman,
On October 2, 2002, Nichols’s counsel submitted a 20-page sentencing memorandum in which he raised numerous objections, both legal and factual, to the sentencing enhancements and calculations recommended in the PSR, and also argued for a downward departure. Notably, he did not cite Apprendi or raise any Apprendi-type argument. On October 7, 2002, counsel for co-defendant Smith filed his own objections to the PSR and also moved for a downward departure.
On October 11, 2002, the district court held a sentencing hearing, during which it rejected Nichols’s counsel’s arguments and adopted the PSR’s recommended Guidelines calculations — an offense level of 40 and a criminal history category of IV, which resulted in a Guidelines range of 360 months to life. The court imposed a sentence of 300 months in prison for count one and 405 months for count two,
Each defendant filed a notice of appeal that same day, October 11, 2002, and though Nichols and Smith proceeded with separate counsel, we consolidated the two appeals. Smith raised several claims, challenging both his conviction and sentence, though he did not raise any Apprendi-type challenge. See United States v. Nichols,
On June 24, 2004 — almost two weeks after the panel’s filing of its opinion (June 11, 2004) and one day before the expiration of Fed. R.App. P. 40(a)(l)’s 14-day period to seek rehearing of that decision (June 25, 2004) — the Supreme Court issued its decision in Blakely v. Washington,
Because thе panel had entered judgment on June 11, 2004, Nichols and Smith had until September 9, 2004, (i.e., 90 days) to
Elsewhere, on July 9, 2004, the Seventh Circuit had applied Blakely to invalidate the Federal Guidelines, see United States v. Booker,
In light of Booker and the nature of Smith’s claim, the Supreme Court granted Smith’s petitiоn for certiorari and remanded his case for resentencing. See Smith v. United States,
Meanwhile, on March 25, 2005, Nichols, acting pro se, filed a 28 U.S.C. § 2255 motion to vacate his conviction and sentence, asserting two claims of ineffective assistance of counsel. One claim pointed to his trial counsel’s failure to challenge the indictment and jury instruction, which, according to Nichols, did not charge him with the necessary specific mens rea. The other claim pointed to his counsel’s failure to raise Apprendi at sentencing and Blakely on direct appeal in opposition to the sentencing court’s use of Guidelines enhancements, premised on facts not found by the jury, to increase his sentence above the 50- to 63-month range corresponding to the base offense level. Recall, however, that at the time of his sentencing in October 2002, “this [Apprendi ] argumеnt [wa]s without merit” under the law of this circuit. See Copeland,
The district court summarily denied Nichols’s § 2255 motion in a one-page opinion, finding that “[b]oth allegations [of ineffective assistance of counsel] are with
Nichols obtainеd a Certificate of Appeal-ability (“COA”) on a single issue: “whether Nichols was denied the effective assistance of counsel by his attorney’s failure to argue that it was improper to enhance his sentence based on facts that had not been proved to a jury beyond a reasonable doubt.” In his pro se brief to the panel, Nichols actually raised three separate-but-related ineffective-assistance-of-counsel claims regarding the sentencing enhancements, arguing (in his own words):
Had [Nichols]’s Counsel [1] raised the objections at Sentencing under the principles set in Jones, supra, and Apprendi, supra, to the sentence enhancements and [2] followed the objections up on direct appeal with supplemental objections under Blakely, and [3] Certiorari to the Supreme Court, then a different outcome of the proceedings is shown, because just as co-defendant Carlton Smith’s sentences were vacated, [Nicholses sentences also would have been vaeated[.]
The government responded with a five-page brief, explaining that this circuit had already held, in United States v. Burgess,
In Burgess, we had indeed rejected Burgess’s pro se argument that, in September 2003, his trial counsel was constitutionally ineffective for failing to anticipate Booker, based on Apprendi and Blakely, and correspondingly failing to argue that the mandatory nature of the Federal Sentencing Guidelines was unconstitutional. Judge Clay, writing for a unanimous panel, explained:
Burgess’s trial counsel cannot be deemed [constitutionally] ineffective for failing to anticipate the Supreme Court’s June 24, 2004[,] holding in Blakely .... The Supreme Court had not even agreed to hear the appeal in Blakely until [October 20, 2003,] over a month after Burgess’s sentencing. Nor can counsel be deemed ineffective for lacking the additional prescience to anticipate that the eventual holding in Blakely would lead to the Supreme Court’s January 12, 2005[,] decision in Booker[,] ... particularly because the Blakely opinion makes clear that it expresses no opinion on the continuing validity of the [F]ederal [Guidelines.
Id. at 240 (certain citations omitted). In his reply brief, Nichols countered Burgess by insisting that he was not arguing that his counsel should have anticipated Booker, instead — he argued — his counsel had but to raise the arguments and then (even ignorantly) reap the benefit of Booker:
[T]he government keeps trying to keep this [C]ourt from noticing ... that[ ] the question before [it] is, if [Niehols]’s counsel had [1] raised [] objections at sentencing under Apprendi and [2] pursued them on direct appeal (including [3] Certiorari to the Supreme Court) under the principles set in Blakely, then [ ] there [is] a reasonable probability*247 that the outcome of these proceedings would have been different.
The panel accepted Nichols’s argument and granted him relief, holding that he had indeed been denied his constitutional right to the effective assistance of counsel. Nichols v. United States,
The Government moved for en banc review, claiming that the panel had committed “precedent-setting error[s] of exceptional public importance.” See Sixth Cir. R. 35(c); see also Fed. R.App. P. 35(a). We granted the motion, vacated the panel opinion, and ordered re-briefing. Whereas Nichols was formerly pro se, he now has counsel who, in their “Supplemental En Banc Brief,” have framed the appeal in terms of Blakely and Booker, rather than Apprendi, to wit:
This case presents the issue of whether Nichols’s court-appointed counsel was [constitutionally] ineffective for failing to challenge United States Sentencing Guidelines enhancements based upon facts that had not been found by a jury, particularly at a time when countless other defendants had raised the issue in view of the Supreme Court’s decision in Blakely v. Washington,542 U.S. 296 ,124 S.Ct. 2531 ,159 L.Ed.2d 403 (2004), and, later, in view of the Supreme Court’s grant of certiorari in United States v. Booker,542 U.S. 956 ,125 S.Ct. 11 ,159 L.Ed.2d 838 (2004) (granting certiorari).
Elsewhere in the brief, Nichols’s en banc counsel argue:
[Bjecause Nichols’s [original trial and appellate] counsel ignored [1] the well-known decision in Blakely, [2] the grant of certiorari in Booker, and [3] the actions taken by other lawyers involved in Nichols’s codefendant’s virtually identical case, Nichols’s counsel’s performance ‘fell below an objective standard of reasonableness.’
Consequently, the focus of the en banc argument is substantially different from what the panel considered, namely, that by failing to raise Apprendi at sentencing, on direct appeal, and in a petition for certiorari, Nichols’s counsel provided ineffective assistance. As if to emphasize their break from Nichols’s former (pro se) theory, Nichols’s new counsel offer this very frank concession:
Had Nichols’s conviction actually been final on June 11, 2004, before Blakely was decided, this would be a different case. As discussed, however, many events after June 11, 2004 (including the Blakely decision, the lower courts’ holdings that Blakely had invalidated the type of enhancements applied to Nichols’s sentence, the Supreme Court’s grant of certiorari in Booker, and Smith’s Sixth Circuit and Supreme Court filings) demonstrate the ineffectiveness of Nichols’s lawyer for failing to raise the issue during the three months following the Blakely decision.
The government counters that after June 11, 2004, Nichols no longer had a constitutional right to counsel and, consequently, he had no constitutional right to the еffective assistance of counsel. Therefore, none of the events that transpired after June 11, 2004 (i.e., “in the three months following the Blakely decision”), can render Nichols’s counsel constitutionally ineffective.
Nichols’s pro se arguments, together with these new arguments to the en banc court, identify a continuum — from sentencing through direct appeal' — during which Nichols claims he was repeatedly denied the effective assistance of counsel as guaranteed by the Constitution. But, as we will explain, there exists a sharp line of
II.
The Sixth Amendment guarantees that at trial and on direct “first tier” appeal every criminal defendant will have access to a lawyer to assist with his or her defense. See Halbert v. Michigan,
At trial and on first-tier appeal— the stages at which the defendant does have a constitutional right to counsel — this constitutional right to counsel means “the right to the effective assistance of counsel.” McMann v. Richardson,
[But, the Sixth Amendment] does not guarantee [] an excellent lawyer. It does not even guarantee [ ] a good lawyer. Instead, the Sixth Amendment right to the effective assistance of counsel entitles [the criminal defendant] to nothing more than a reasonably competent attorney whose performance falls within the [wide] range of competence demanded of attorneys in criminal cases.
Moran v. Trippett,
An habeas petitioner seeking to convince a reviewing court that his or her counsel’s assistance was constitutionally ineffective must prove both prongs of a two-prong test:
First, the [petitioner] must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the [petitioner] must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious [that those errors] deprive[d] the [petitioner]*249 of a fair trial, a trial whose result is reliable.
Strickland v. Washington,
To demonstrate the first prong, the petitioner must point to specific errors in counsel’s performance, United States v. Cronic,
A petitioner demonstrates prejudice — the second prong — by “showing that counsel’s errors were so serious as tо deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland,
At the furthest point of his temporal continuum, Nichols claims that his appellate counsel was deficient — and, consequently, rendered ineffective аssistance— because he failed to petition the Supreme Court for certiorari after we affirmed his sentence on June 11, 2004. As mentioned earlier, Nichols claims prejudice — this is, in fact, his only claim of prejudice — on the basis that he was denied the benefit of Booker’s change in the law (i.e., re-sentencing under a post-Booker, advisory Guidelines scheme), a benefit he would have received had he petitioned for certiorari — because, with a pending petition for certiorari, his conviction would not have become final before the Supreme Court decided Booker. See United States v. Barnett,
The simple answer is no. As the Supreme Court has made clear, the Constitution does not entitle a criminal defendant
Nichols’s en banc counsel appear to have abandoned — or at least de-emphasized— the constitutional aspect of this claim, and appear instead to argue some type of general ineffectiveness:
Although Nichols’s claim does not depend on his having a right to counsel at the petition for certiorari stage ... [t]here is no question that Nichols was entitled to effective counsel who would continue to represent him throughout the pendency of his appeal, including the time after the appeals court had issued its judgment.
Nichols’s en banc counsel base this assertion on Sixth Circuit Rules 101(a) & (g),
But Nichols claims relief under 28 U.S.C. § 2255, and “[a] prisoner seeking relief under § 2255 must allege as a basis for relief: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.” Pough v. United States,
We conclude that, because Nichols had no constitutional right to counsel at the petition-for-certiorari stage, he cannot state a claim for ineffective assistance of counsel due to his counsel’s failure to petition for certiorari. The importance of this conclusion cannot be overstated because the failurе to petition for certiorari negates any prejudice that may have resulted from Nichols’s trial or appellate counsels’ allegedly deficient performance. That is, Nichols’s sole claim of prejudice hangs on his inability to receive the benefit of Booker (the benefit that co-defendant Smith did receive in the form of a post-Booker re-sentencing and a nine-month sentence reduction), but Nichols could only have received the benefit of Booker if he had petitioned for certiorari, which he did not do.
Nichols fares no better with his claims that his counsel were ineffective at the trial and first-tier appeal stages. Regardless of whether those attorneys raised and preserved the Apprendi or Blakely arguments, Nichols could not have benefited from Booker’s subsequent change in the law — that is, obtained a new sentencing hearing under a post-Booker, advisory Guidelines schema — unless he petitioned the Supreme Court for certiorari, which he did not do. Hence, the outcomes of the trial and first-tier appeal would have been the same whether or not Nichols’s counsel performed as he contends they should have, see Williams,
Finally, Nichols’s en banc counsel emphasize that his appellate counsel was ineffective because he failed to move the panel for reconsideration or the court for a rehearing en banc:
[M]any events after [issuance of the appellate opinion on] June 11, 2004[,] including the Blakely decision, the [other federal] courts’ holdings that Blakely had invalidated the type of enhancements applied to Nichols’s sentence, the Supreme Court’s grant of certiorari in Booker, and Smith’s Sixth Circuit [motion for rehearing] and Supreme Court [petition for certiorari] demonstrate the ineffectiveness of Nichols’s lawyer for failing to raise the issue during the three months following the Blakely decision.
Nichols’s en banc counsel’s theory is that, even after the entry of judgment in his first-tier appeal (June 11, 2004), his appellate counsel was still obligated to assist with further motions on appeal.
But we need not decide these questions because, as with counsel’s conduct at trial and on first-tier appeal, even if we were to assume that Nichols’s original appellate counsel performed deficiently by failing to move this court for rehearing of Nichols’s appeal in light of Blakely, Nichols cannot show any resulting prejudice. As we made clear in Koch,
Nichols himself, the original panel, and Nichols’s en banc counsel have all taken the position that Nichols’s situation is perfectly analogous to that of his former co-defendant, Carlton Smith,
The filing of a motion for rehearing before this court is not a prerequisite to the filing of a petition for certiorari, see Sup.Ct. R. 13(3); see also Schiavo ex rel. Schindler v. Schiavo,
III.
Nichols has not shown that his counsel was constitutionally ineffective for failing to anticipate or foresee a change in the law and raise an Apprendi-based challenge at sentencing or on direct appeal, for failing to move the appellate court for reconsideration on a Blakely-based claim in post-appellate proceedings, or for failing to petition thе Supreme Court for certiorari based on Booker. For the reasons discussed in this opinion, we AFFIRM the district court’s judgment.
Notes
. We note also that five different justices suggested, without so holding, that Almendarez-Torres v. United States,
. It perhaps bears mention that the Copeland panel issued an amended opinion on February 25, 2003, that superseded the original opinion with regard to an unrelated proposition, but did not change the above-cited legal proposition or the quoted language. See United States v. Copeland,
. Smith’s motions are not in the record submitted to us in this appeal, but the district court’s sentencing order and the subsequent appellate opinion contain no indication that Smith raised Apprendi or any Apprendi-type argument. Had Smith raised such an argument at the joint sentencing, the court would have been obliged to address it, and the same is true for any issue raised in the consolidated appeal. Neither court mentioned an Apprendi argument.
. The sentence also included five years of supervised release and restitution in the amount of $851,000.
. The district court re-sentenced Smith to 300 months for count one and 396 months for count two, to run concurrently with each other and with a separate sentence that Smith had received from the Eastern District of Tennessee. The sentence also included five years of supervised release and restitution in the amount of $851,000.
. The Sixth Circuit Rules were adopted in 1998 and last updated June 1, 2008. The two rules that Nichols's en banc counsel cite here are listed in the "Supplemental Procedural Rules” and state:
Sixth Cir. R. 101(a): "Continued Representation on Appeal. Trial counsel in criminal cases, whether retained or appointed by the district court, is responsible for the continued representation of the client on appeal until specifically relieved by this Court.” Sixth Cir. R. 101(g): "Petition for Writ of Certiorari. Counsel appointed by the Court is obligated to file a petition for a writ of certiorari in the Supreme Court of the United States if the client rеquests that such a review be sought and, in counsel’s considered judgment, there are grounds for seeking Supreme Court review.”
. In support of this possibility, Nichols refers to Smith v. Ohio Department of Rehabilitation,
Nichols also attempts to rely on White v. Schotten,
. Nichols bases his theory of prejudice on the assumption that because co-defendant Smith was successful on his direct appeal, Nichols necessarily would have been successful on his direct appeal as well. But, we have elsewhere condemned such an approach, saying: "Contrary to [appellant's arguments, the fact that his codefendant succeeded on a similar claim is not dispositive.... [S]uch an approach would improperly turn on the type of hindsight discоuraged by Strickland.” Range v. United States,
Dissenting Opinion
dissenting.
In October 2002, Petitioner-Appellant Thomas Albert Nichols received a sentence of 405 months of imprisonment under the then-mandatory United States Sentencing Guidelines. Nichols’s Guidelines range was enhanced based on facts found solely by the sentencing judge. Even though, at the time of Nichols’s sentencing, the constitutionality of the Guidelines had been called into serious question by a majority of the Justices in Apprendi v. New Jersey,
Nichols now argues that, based on Apprendi Blakely, and the Supreme Court’s grant of certiorari in Booker, his counsel should have raised Sixth Amendment challenges to the sentencing enhancements at various stages of his trial and appeal. Because this case presents a unique combination of circumstances in which Apprendi followed by the Supreme Court’s grant of certiorari in Blakely, cast the constitutionality of the Guidelines into serious doubt, and where the enhancements to Nichols’s Guidelines range directly presented circumstances that were called into question by Apprendi and Blakely, I conclude that Nichols’s counsel was constitutionally ineffective for failing to preserve a Sixth Amendment сhallenge to Nichols’s sentence.
Claims of ineffective assistance of counsel are analyzed under the familiar two-part test set forth in Strickland v. Washington,
Nichols argues that his counsel performed deficiently by failing to argue either at his sentencing or on appeal that the enhancements to his then-mandatory Guidelines range violated the Sixth Amendment. To show that his counsel’s performance was deficient, a defendant must show “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. “[T]he defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688,
There is no question that, had Nichols been sentenced according to mandatory Guidelines after Booker was decided, his claim would be meritorious. The district court increased Nichols’s Guidelines range based on judge-found facts — for example, the two-point enhancements for vulnerability of a victim and use of a child in the course of the offense, both based solely on judge-found facts, increased Nichols’s Guidelines range from between 262 and 327 months in prison to between 360 months and life in prison. See U.S. Sentencing Guidelines Manual ch. 3, pt. A. (2001). The district court applied as mandatory Nichols’s Guidelines range of 360 months to life in prison, ultimately sentencing Nichols to 405 months in prison. Had Nichols been sentenced after Booker was decided, it would be clear that the district court erred by sentencing Nichols using a mandatory Guidelines range based on judge-found facts, and it would be equally clear that Nichols’s counsel performed deficiently by not objecting to and then appealing the district court’s sentencing determination.
Of course, Nichols was not sentenced after Booker was decided; Nichols was sentenced on October 11, 2002, over two years before the Supreme Court’s decision in Booker. Usually, a later change in the law will not rendеr an attorney’s earlier performance deficient. “ ‘Only in a rare case’ will a court find ineffective assistance of counsel based upon a trial attorney’s failure to make an objection that would have been overruled under then-prevailing law.” Lucas v. O’Dea,
Beginning prior to Nichols’s sentencing and continuing throughout the pendency of his appeal, a major shift was occurring in the Supreme Court’s sentencing jurisprudence. First, in Apprendi v. New Jersey, the Supreme Court determined that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
In October 2003, before oral argument in Nichols’s direct appeal, the Supreme Court granted certiorari in Blakely v. Washington on the question of whether a fact necessary for an upward departure from Washington’s statutory standard sentencing range must be proved according to the procedures mandated by Apprendi, indicating to all that the Supreme Court soon would consider whether the Sixth Amendment prohibits the use of judge-found facts to increase a mandatory guidelines range. On June 24, 2004, while Nichols still could have filed a timely petition for rehearing before this court, the Supreme Court answered this question in the affirmative in Blakely, holding that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”
With the future state of the law so uncertain post-Apprendi, I believe that any counsel whose performance satisfied an “objective standard of reasonableness,” Strickland,
For many of those same reasons, I believe that adequate counsel would have preserved the Sixth Amendment challenge by raising it on appeal, particularly in light of the Court’s grant of certiorari in Blakely. Counsel raised only one issue on appeal, a challenge to the jury instructions. Thus, there was no danger that preserving the Sixth Amendment challenge on appeal would require counsel to limit discussion of stronger issues in order to satisfy briefing page limits or would otherwise distract from the other issues raised on appeal, and I can identify no other strategic reason why counsel would refuse to preserve the Sixth Amendment challenge on appeal. See McFarland v. Yukins,
To have raised an Apprendi-type argument either at sentencing or on appeal, Nichols’s counsel need not have been clairvoyant or predicted the precise remedy that the Supreme Court would craft in Booker. Anyone who surveyed the legal landscape from 2002 to 2004 would have seen that the tide had shifted on determinate sentencing guidelines and need only have applied the Supreme Court precedent established in Apprendi to raise an argument that the enhancement of Nichols’s Guidelines rаnge by judge-found facts presented Sixth Amendment problems. Because Nichols’s counsel did not do so, his performance fell below the “objective standard of reasonableness” required by Strickland,
To establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding” — in this case, the result of Nichols’s sentencing — '“would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694,
Because Apprendi and Blakely cast the cоnstitutionality of the federal Sentencing Guidelines into serious doubt, and because the enhancements to Nichols’s Guidelines range directly presented circumstances that were called into question by Apprendi and Blakely, I conclude that Nichols’s counsel was constitutionally ineffective for failing to preserve a Sixth Amendment challenge to his sentence.
. This provides a key distinction from the circumstances presented in United States v. Burgess,