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April 29, 2009

En banc Sixth Circuit rejects ineffectiveness claim for failing to preserve Sixth Amendment claims pre-Booker

Ruling en banc, the Sixth Circuit today in Nichols v. US, No. 05-6452 (6th Cir. April 29, 2009) (available here), reversed course after a panel had previously found defense counsel ineffective for failing to preserve Sixth Amendment claims.  Here is how the majority opinion in the new Nichols ruling concludes:

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 the Supreme Court for certiorari based on Booker.  For the reasons discussed in this opinion, we AFFIRM the district court’s judgment.

Here is how the dissenting opinion concludes:

Because Apprendi and Blakely cast the constitutionality 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.

April 29, 2009 at 02:18 PM | Permalink


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look how far Strickland has progressed . . . .

Posted by: federalist | Apr 29, 2009 3:04:07 PM

It is particularly interesting that the attorney for Nichols's co-defendant not only successfully raised and preserved a Sixth Amendment challenge that ultimately reduced the co-defendant's sentence, but that attorney apparently provided his research to Nichols's attorney as well, advising him to make a similar argument.

Posted by: Sarah | Apr 29, 2009 6:38:14 PM

Still shouldnt be Strickland material--does a defendant have a constitutional right to have the defense anticipate a change in the law?

Posted by: federalist | Apr 29, 2009 9:17:17 PM

If a defendant doesn't have a constitutional right to an attorney that anticipates a change in the law (which is probably accurate is most cases, but see below), then when changes in the law occur, the arguments that were not anticipated should not be subject to plain error review. In other words, I don’t think a defendant should be subject to the double standard they are now -- i.e. defendants must anticipate a change in the law or else be subject to plain error review, yet defendants simultaneously don’t have a right to counsel who anticipate that exact change. Would you agree federalist (and others)?

Finally, I will say that post-Blakely, any and every competent defense attorney should have been raising Sixth Amendment challenges to the Guidelines. In that sense, I do think a defendant had a constitutional right post-Blakely to a defense attorney who anticipated Booker.

Posted by: DEJ | Apr 29, 2009 11:40:37 PM

Of course, if Booker were made retroactive, then this would not be an issue. So the lawyer here was supposed to correctly anticipate Booker AND that it would not be retroactive? It would be better for the courts to simply make major constitutional decisions retroactive, rather than trying to overturn a few "recent" decisions under Strickland.


Posted by: Mark Pickrell | Apr 30, 2009 11:36:48 AM

DEJ has it exactly right. Under the law governing plain-error review, lawyers are required to be prescient - to anticipate future changes in the law. But if they don't fulfill this requirement (i.e., correctly predict the future), they're not ineffective. How can both principles be true? Or, i guess I should say, how can the coexistence of such inconsistent principles possibly be fair? Federalist?

Posted by: ditto | Apr 30, 2009 1:35:53 PM

Ditto, Mark and DEJ: I didn't know that absolute fairness to those convicted of criminal offenses was a categorical imperative. That seems to be the thrust of your comments.

Also, the level of effectiveness of counsel really doesn't logically turn on the standard of review for error. The rationale for the Strickland rule is that counsel has to be good enough so that the prosecution's case is subject to meaningful testing. Failure to anticipate a change in law just doesn't make a breakdown of the adversarial process. Now I know, of course, that Strickland has metastasized into a picayune review of every counsel "error", but failure to anticipate a change in law really isn't "error". As for making rules retroactive, sorry, not worth it.

Posted by: federalist | Apr 30, 2009 3:25:52 PM

Have any other circuits faced this issue? The CA6 decision doesnt cite any, but it would be interesting if this is the ONLY instance of this happening. . . . .

Posted by: X | May 1, 2009 3:14:48 PM

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