Seventh Circuit Rules Appellate Counsel "Deficient" For Failure to Raise Booker Claim

Just before Booker was decided by the Supreme Court (but several months after the Seventh Circuit had held that the mandatory guidelines were unconstitutional in the same case and the Supreme Court had granted certiorari), Brett Stallings was sentenced to 188 months’ imprisonment after being convicted of possession of a firearm by a felon.  At the sentencing hearing, the Judge appeared to follow the guidelines as if they were mandatory, stating “under the law, I believe I am required to impose a certain, at least minimum sentence.” Trial counsel did not object to the mandatory application of the sentencing guidelines.  Furthermore, the Judge rejected defense counsel’s suggestion to impose an alternative sentence, as Blakely was then under review by the Supreme Court.

On Stallings’ appeal (after the Supreme Court had issued Booker), his newly appointed attorney claimed ineffective assistance of trial counsel, but he did not make a separate claim under Booker that the sentence may have been different had the Judge viewed the guidelines as advisory. Stallings’ original sentence was affirmed.  Stallings thereafter filed a habeas petition, claiming that his appellate counsel was ineffective for failing to make the Booker argument and asking for a reconsideration of his sentence.

In a decision issued yesterday in Stallings v. United States, the Seventh Circuit agreed, holding that Stallings’ appellate counsel was ineffective for failing to request a limited remand “to determine whether the sentencing court would have imposed the same sentence under an advisory guidelines regime.”  The Seventh Circuit, however, ultimately remanded the habeas petition to the district court to determine if the failure to raise a Booker claim was prejudicial and would have actually resulted in a different sentence, since the district court failed to consider that issue in denying Stallings’ petition.

While there are unlikely to be many more cases involving Stallings' precise set of facts, the Seventh Circuit’s ruling underscores the critical importance of defense attorneys taking advantage of the new found flexibility under Booker and its progeny.

Download Stallings.pdf

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