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August 16, 2007

Remarkable Apprendi ineffectiveness ruling from the Sixth Circuit

After seeing this ruling earlier today, I wanted to read it closely to be sure it was as big a deal as it seems.  And, upon further review, I am sure that the Sixth Circuit's work today in Nichols v. US, No. 05-6452 (6th Cir. Aug. 16, 2007) (available here), is huge and perhaps gets intriguingly close to giving Booker retroactive potential for some federal defendants.  Technically, Nichols concerns an ineffective assistance claim brought in a 2255 petition.  But federal practitioners will understand from these excerpts what Nichols could mean:

Petitioner-Appellant Thomas Albert Nichols (“Nichols”) appeals from the district court’s judgment denying his motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Nichols argues that his counsel was constitutionally ineffective for failing to challenge enhancements to his Guidelines range.  Nichols argues that, based on Apprendi v. New Jersey, 530 U.S. 466 (2000), his counsel should have raised a Sixth Amendment challenge to the sentencing enhancements, even though Nichols was sentenced in 2002, more than two years before the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005). Because Apprendi cast the constitutionality of the Federal Sentencing Guidelines into considerable doubt, and because the enhancements to Nichols’s Guidelines range directly presented circumstances that were called into question by Apprendi, we conclude that Nichols’s counsel was constitutionally ineffective for failing to preserve a Sixth Amendment challenge to his sentence, and we therefore REVERSE the judgment of the district court, VACATE Nichols’s sentence, and REMAND the case for resentencing....

We recognize that, under our decision today, the performance of many attorneys who represented criminal defendants after Apprendi but before Blakely and Booker will be deemed constitutionally deficient. The question before us, however, is not what some or most attorneys actually did, but whether the performance of Nichols’s counsel “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. Although we recognize that common practices may provide evidence of the objective standard by which we should measure the performance of individual attorneys, common practices can never be determinative lest we freeze our expectations of counsel at one moment in time, never to improve or change in response to developments in, for example, education, technology, or the law itself.  In this case, we conclude that the performance of Nichols’s counsel was constitutionally deficient for failing to take into account and respond to the significant changes in the law effected by Apprendi.

For a range of practical and procedural reasons too complicated to explain briefly, the actual impact of Nichols may not be that huge for the hundreds of thousands of defendants sentenced between Apprendi and Booker.  Nevertheless, the import of Nichols is still huge (and likely will lead to further appeals from the government).

August 16, 2007 at 10:10 PM | Permalink


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Hmm, I bet many of these claims would be time-barred under the AEDPA.

Posted by: Jason | Aug 17, 2007 6:55:52 AM

Unless Sixth Amendment effectiveness standards in the Sixth Circuit are a lot higher than Scotus seems to think they are, under Strickland, it seems like a real stretch to say that Nichols’ counsel was constitutionally ineffective. Only one lower court anticipated Blakely, and for a very good reason: that decision constituted a major extension of Apprendi’s rationale and scope. None of the core concerns which led to the Apprendi ruling were present in Blakely. There was no evidence that the Washington legislature was redefining criminal laws or using guidelines rules to remove issues from jury control or reasonable doubt standards. Washington’s guidelines were designed to operate within the existing criminal code, and neither the elements of crimes nor statutory maxima were changed. Thus, Blakely didn’t restore jury control and reasonable doubt standards that were at risk of being undermined by guidelines. Instead, Blakely extended these standards to factual issues which had never before been subject to jury trial and proof beyond a reasonable doubt. The majority opinion seemed to recognize this point when it rejected any attempt to assess, in each case, whether the legislature or a sentencing court had gone “too far;” the majority preferred instead to adopt a simple, “bright-line rule.” Although a bright-line rule could also have been based on a distinction between sentences above versus within the statutory maximum, the Blakely majority felt that such a rule could be too easily evaded by legislatures. Thus, the Court adopted a much broader bright-line rule, keyed to any facts legally required to increase the sentence, even if the increase fell far short of the statutory maximum. It should also be recalled that Nichols was sentenced in late 2002, four months after the Court, in Harris, seemed to opt for the narrower, statutory- maximum interpretation of Apprendi. Thus, it is hard to accept the Sixth Circuit’s view that Blakely was “clearly foreshadowed” by Apprendi. The latter case may have been foreshadowed by Almendarez-Torres and Jones; by comparison, Blakely came out of the blue. (And, for what it’s worth, the Nichols opinion seriously over-states the extent to which scholars predicted the Blakely ruling.)

Posted by: Richard Frase | Aug 17, 2007 12:52:11 PM

The most interesting part of this is, in some circuits, raising such arguments would get a condemnation as “frivolous” or some crap. But now, the 6th says that failing to make a similar argument an argument falls below an objective standard of reasonableness. So, what’s it going to be? Is arguing that Almendarez-Torres is not longer good law a required part of not malpracticing, or is it frivolous?

Posted by: S.cotus | Aug 17, 2007 2:33:56 PM

The worst decision in Moore's decision was the decision to publish. My goodness [shakes head].

Posted by: SPD | Aug 17, 2007 3:00:06 PM

This seems to go back to the Booker plain error dispute. Anyway, this decision is (1)defendant friendly and (2) amenable to a "floodgates" argument and as such it will either be reheard and the opinion withdrawn or will be reheard en banc and the panel decision will be reversed.

Posted by: bruce | Aug 17, 2007 6:30:31 PM

Richard, Concerning your comment than Blakely came out of the blue, it was so clear to me that Blakely was bound to turn out as it did that I closed my office and took both my secretaries to DC so that they could be sitting in the courtroom to hear argument on the case that would send North Carolina's Structured Sentencing Law down the tubes. Which of the Blakely Five are you contending was not going to vote the way they did?

bruce cunningham

Posted by: bruce cunningham | Aug 17, 2007 6:44:50 PM

Well, Bruce, a certain well-known sentencing expert seems to have been surprised by the sweep of the opinion, judging by the tone of the post on his blog that day. Richard's "out of the blue" might be a tad of an overstatement, but saying that every lawyer who didn't anticipate Blakely failed to function as the counsel guaranteed by the Sixth Amendment (which is the standard, 466 U.S., at 687, many courts seem to forget) is way over the top.

Posted by: Kent Scheidegger | Aug 17, 2007 8:34:38 PM

Isn't it funny how the Sixth Amendment right to counsel morphed from the right to choose one's own counsel to the right to have more than some warm body in defense counsel's chair to the right to get one's sentence overturned when, in an otherwise fair trial, a lawyer makes the "mistake" of not anticipating a new development in the law.

Posted by: federalist | Aug 17, 2007 9:06:02 PM

Kent, the North Carolina Supreme Court, in State v Lucas, held that Apprendi did not ,in and of itself, nullify our structured sentencing law. It took Blakely to do that. But, just because folks did differ doesn't necessarily mean that they should have differed. Trial lawyers here were filing preservation motions after Apprendi to avoid waiver issues. Again, I ask which of the five do you think was not going to vote the way they did. Take a look at Justice Breyer's question to Jeffrey Fisher in the transcript of the Blakely oral argument on the impact of his argument on the federal guidelines. Seems to me that is a pretty good indicator that it was a foregone conclusion that Blakely would be decided as it was and the only question, which even Justice Breyer implicitly conceded by the tone of his question, was whether the guidelines was a goner. Hardly an out of the blue result, which prompted my comment. Then the question becomes just because judges in fact resisted the Apprendi onslaught does that mean reasonable judges CAN differ as opposed to whether they DID differ.

bruce c.

Posted by: bruce cunningham | Aug 18, 2007 12:58:37 AM

But shouldn't we be going back to first principles here? The whole purpose of the judge-made law requiring that counsel be effective is to ensure that defendants get a fair trial. Now, that's been expanded a bit, since there is a right to have effective counsel in plea bargaining etc. So, I guess, we can short-hand the effective counsel right as ensuring that the conviction process as a whole is a fair one. But where a defendant gets a result dictated by then current law, it seems to me that it is impossible to argue (with a straight face) that the defendant has been denied anything required by the Constitution.

Why is it that judges strain so hard to find "rights" for criminals?

Posted by: federalist | Aug 18, 2007 1:57:29 AM

For the record: I said Blakely came out of the blue *by comparison* to Apprendi, which was clearly foreshadowed by earlier decisions. As for which justice, of the Apprendi-five, I would have predicted would vote to uphold the Washington state guidelines -- that's a tough question, especially since we all know, with hindsight, that none of them did. And Bruce, what you could see coming, at the oral arguments of Blakely, is not the same thing that competent counsel should have reasonably anticipated in the months leading up to that point. Sure, you and few others saw things differently, and you turned out to be right. And some lawyers will file more issue-preservation motions than are required by federal competent-counsel standards. But I still think that, for the overwhelming majority of lawyers, judges, and scholars, Blakely was unexpected -- so much so, that few of us bothered to "count heads" on the Court. If you had posed that question to me back then, I'd have probably said either Souter or Ginsberg would flip. Or maybe even Stevens since, in his Apprendi opinion, he seemed to go out of his way to stress that he saw no constitutional problems with the exercise of discretion within a sentencing range provided by statute. A lot depends on how result-driven one thinks these opinions were. Some people believe that the Apprendi-five were, all along, gunning for the widely-unpopular federal guidelines (and that much more popular state guidelines, including those in your state notwithstanding your apparent opposition to them, just got in the way). I've always resisted that cynical view of this line of cases, and I don't think we should expect competent counsel to have adopted it.

Posted by: Richard Frase | Aug 18, 2007 1:31:31 PM

I'll just add one more note to Richard's comment to reemphasize my original point. The question is not whether Blakely was predictable but rather whether a lawyer who failed to predict Blakely was incompetent. That is a different question, and it is the correct one to ask when a judgment is attacked on Strickland grounds.

Posted by: Kent Scheidegger | Aug 18, 2007 4:42:14 PM

Richard and Kent, thank you for the comments. This is a very interesting discussion because I think it illustrates the two views of what Apprendi/Blakely is all about.

Richard, it seems to me that your comments are bottomed on the premise that Apprendi/Blakely is about giving the jury a Sixth Amendment role to play in sentencing. That the phrase "criminal prosecution" in the Sixth Amend. now includes a factfinding function for sentencing. You say, "None of the core concerns which led to the Apprendi ruling were present in Blakely."

My view is that Apprendi/Blakely is about who finds people guilty of crimes and the cases are about, as Justice Scalia says, how does one give "intelligible content" to the Sixth Amendment when it comes to securing a def's right to have only the jury convict someone of crime. I believe my view is in line with Justice Thomas' concurrence in Apprendi, in which his first line is that this case is about "what is a crime?" Also, Justice Scalia makes clear in both his Blakely and Ring opinions that "the unfortunate fact (for Justice Breyer) is that today's decision has nothing to do with jury sentencing" and in Blakely he says the jury can't perform its role as circuitbreaker if it's role was simply a prelim to the judge determining "the crime the state actually seeks to punish."

You write that "Blakely extended these standards to factual issues which had never before been subject to jury trial and proof beyond a reasonable doubt." Juries have always dealt with finding people guilty or not guilty of crimes. Blakely, in my opinion, did nothing but define the phrase "prescribed statutory maximum" in Apprendi.

Thanks again for the helpful discussion. To me it puts a spotlight on the most important question of all concerning these cases. That is, whether they are about sentencing or whether they are about how, in the context of our current views about criminal law, crimes are defined.

I think Justice Scalia again says it best when he said in Ring he doesn't care what a state calls something, element, sentencing factor or Mary Jane, if the finding of it increases a def's exposure to punishment above the Blakely max, that fact is an essential element of a new, greater crime.

bruce c

Posted by: bruce cunningham | Aug 19, 2007 8:07:43 AM

Yes the issues of whether Blakely was redictable, and of whether a lawyer who failed to predict Blakely was incompetent, are different questions, but they're related. According to the Nichols opinion, counsel is incompetent when he or she “fail[s] to raise an issue whose resolution is clearly foreshadowed by existing decisions,” and the opinion also says that these will be “rare cases.” My original point was that Blakely was not "clearly foreshadowed," or, if we're going to say it was, then these kinds of reversals are not going to be rare. And I think they should be, despite my sympathy with defendants who miss out on newly-recognized rights. Otherwise, we end up with problems in the short term (lots of old cases needing to be re-sentenced, or for trial errors, retried), and in the long term (appellate courts, fearing a deluge of these old cases, becoming much more reluctant to recognize meritorious arguments for extended rights).
However, Nichols' case is not really that old; indeed, it seems that it was still pending on cert when Booker came down. One approach, granting relief to all these cases but not those already final, would be to say it's a question of whether defendant validly waived his (Booker-granted) jury-trial and beyond-reasonable-doubt rights (Nichols clearly didn't). The Minnesota Supreme Court has applied this approach to Blakely claim-forfeiture problems, rather than apply plain error rules.

Posted by: Richard Frase | Aug 19, 2007 4:04:56 PM

Bruce -- I'm not really sure what Apprendi-Blakely is about. To say it's about "what is a crime?" seems pretty formalistic and narrow, given the seemingly unlimited power legislatures have to retain, or go back to, broad-range indeterminate sentencing regimes or advisory guidelines in which jury verdicts of guilt truly are just a "preliminary" to the critical findings made by the judge. Sure, "juries have always [found] people guilty of crimes." But if Washington state had never adopted guidelines, the judge in Blakely's case could have imposed the same enhanced sentence for the same reasons, or no reasons, and the jury would have had no role other than finding the statutory elements of the crime of kidnapping. So when the Washington legislature, without changing those elements or the statutory maximum, decided to give judges more guidance in choosing the precise sentence, I don't see this as defining new crimes, or justifying a broader role for the jury than it has without such guidance. Prior to legally-binding guidelines, juries never in modern times played a "circuitbreaker" role on the kinds of enhancement issues covered by Blakely and Booker. And if the Court thinks juries should play such a role, then it will have to hold indeterminate sentencing and advisory guidelines systems unconstitutional.

Posted by: Richard Frase | Aug 19, 2007 4:10:35 PM

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