The First Circuit chats about ineffective assistance

In the course of figuring out how Blakely might apply to pending and past cases, I have been speculating with others about whether the failure to make or preserve a "Blakely claim" before the time Blakely was decided could be deemed ineffective assistance of counsel. More generally, it seems clear that in addition to all the "on the merits" short-term and long-term Blakely issues, courts will eventually have to sort out a series of short-term and long-term Blakely-related ineffective assistance claims.

In the first decision I have seen starting to speak to these sorts of issues, today in the unpublished case of Campbell v. US, 02-2387 (1st Cir. Aug. 25, 2004), the First Circuit holds in a federal habeas corpus setting that "Campbell is not entitled to a [certificate of appealability] to pursue the claim that counsel was ineffective for failing to anticipate the Court's decision in Blakely." The First Circuit reasons, in a decision that can be downloaded below, that Campbell's "case does not require us to decide whether Blakely applies to the federal sentencing guidelines or whether it applies retroactively to cases on collateral review." The court continues:

Because Campbell stipulated at trial to a drug quantity that corresponded to the base offense level used to calculate his sentence, he cannot show that he was prejudiced by the failure to charge the specific drug quantity in his indictment. Moreover, counsel's failure to anticipate Blakely would not constitute unreasonable performance under Strickland because 'First Circuit jurisprudence on this point ha[d] been well established.' Campbell, 268 F.3d at 7, n.7. Therefore, reasonable jurists could not find that he has made a substantial showing that the Blakely issue would have been clearly stronger than the issues raised by appellate counsel.

At the end of this passage, the court adds this informative footnote:

To the extent that petitioner is seeking to assert a new claim based on Blakely (rather than to provide supplemental support for his ineffective assistance claim), he would be required to present that claim first in the district court. Certification to file a second or successive petition could not be granted unless the Supreme Court had held that Blakely applied retroactively to cases on collateral review. 28 U.S.C. § 2255.

Though this per curiam decision is unpublished and thus formally non-precedential, it obviously speaks to some very important issues in a very important way.
Download campbell_v. US.pdf