[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 9, 2007
No. 06-13851 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos.
04-08015-CV-4-CLS-TMP & 01-00168-CR-CLS
ALTON RUMLEY DUBOSE, JR.,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(January 9, 2007)
Before BLACK, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Alton Rumley Dubose, Jr., appeals the district court’s denial of his
counseled motion to vacate, under
28 U.S.C. § 2255. Dubose filed his motion after
the effective date of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-32, 110 Stat 1214 (1996). Therefore, the provisions
of the AEDPA govern this appeal. The district court granted a certificate of
appealability (“COA”) with respect to the following issue:
Whether, on November 29, 2001 (the date of movant’s sentencing), it
was ineffective assistance of counsel, in violation of the Sixth
Amendment, for movant’s attorney to fail to object on the basis of
Apprendi v. New Jersey,
530 U.S. 466 (2000), to findings of fact
being made by the sentencing court (rather than a jury) in connection
with sentencing under the United States Sentencing Guidelines.
On appeal, Dubose argues that his trial and appellate counsel provided ineffective
assistance by failing to raise such an argument.1 For the reasons set forth more
fully below, we affirm.
We review an ineffective assistance of counsel claim de novo. Chandler v.
United States,
218 F.3d 1305, 1312 (11th Cir. 2000) (en banc). In order to prove
ineffective assistance of counsel, a defendant must show that counsel’s
performance was deficient and that he was prejudiced as a result. Strickland v.
1
Based on the COA’s limitation to counsel’s actions on the date of sentencing, the COA
does not encompass the issue of appellate counsel’s effectiveness. Because appellate review is
limited to the issues specified in the COA, we do not consider Dubose’s claim of ineffective
assistance of appellate counsel. See Murray v. United States,
145 F.3d 1249, 1250-51 (11th Cir.
1998).
2
Washington,
466 U.S. 668, 687,
104 S.Ct. 2052, 2064,
80 L.Ed.2d 674 (1984).
“For performance to be deficient, it must be established that, in light of all the
circumstances, counsel’s performance was outside the wide range of professional
competence.” Putman v. Head,
268 F.3d 1223, 1243 (11th Cir. 2001). “We ask
only whether some reasonable lawyer at the trial could have acted, in the
circumstances, as defense counsel acted . . . .” White v. Singletary,
972 F.2d 1218,
1220 (11th Cir. 1992). This inquiry is objective and we “must evaluate the
reasonableness of counsel’s performance ‘from counsel’s perspective at the time.’”
Chandler,
218 F.3d at 1315-16 (citation omitted). “[B]ecause counsel’s conduct is
presumed reasonable, for a petitioner to show that the conduct was unreasonable, a
petitioner must establish that no competent counsel would have taken the action
that his counsel did take.”
Id. at 1315.
The premise of Dubose’s arguments on appeal is that counsel provides
constitutionally ineffective assistance when he or she fails to reasonably anticipate
and argue favorable trends in constitutional law, even if those trends are not the
law at that time. He contends that, in these circumstances, the standard for whether
there is cause for procedural default set forth in Engle v. Issac,
456 U.S. 107, 134,
120 S.Ct. 1558, 1575,
71 L.Ed.2d 783 (1982) (“Where the basis of a constitutional
claim is available, and other defense counsel have perceived and litigated that
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claim, the demands of comity and finality counsel against labeling alleged
unawareness of the objection as cause for a procedural default.”), should also
govern the determination of deficient performance in an ineffective assistance
claim.
We have previously rejected the argument that, if there does not exist cause
for the failure to raise a claim in the context of procedural default, such a failure
constitutes ineffective assistance of counsel. Pitts v. Cook,
923 F.2d 1568,
1571-74 (11th Cir. 1991). “The proper measure of attorney performance remains
simply reasonableness under prevailing professional norms.” Strickland,
466 U.S.
at 688,
104 S.Ct. at 2065. “We have held many times that ‘[r]easonably effective
representation cannot and does not include a requirement to make arguments based
on predictions of how the law may develop.’” Spaziano v. Singletary,
36 F.3d
1028, 1039 (11th Cir. 1994) (citations omitted) (alteration in original). “To be
effective within the bounds set by Strickland, an attorney need not anticipate
changes in the law. Similarly, counsel need not pursue constitutional claims which
he reasonably believes to be of questionable merit.” Jackson v. Herring,
42 F.3d
1350, 1359 (11th Cir. 1995) (citations omitted).
At the time of Dubose’s sentencing on November 29, 2001, our controlling
precedent held that Apprendi did not apply to the Sentencing Guidelines, but was
4
only applicable to facts that increase a sentence above the applicable statutory
maximum. United States v. Sanchez,
269 F.3d 1250, 1262-63 (11th Cir. 2001) (en
banc), abrogation recognized by United States v. Duncan,
400 F.3d 1297 (11th
Cir.), cert. denied,
126 S.Ct. 432 (2005). We hold that Dubose’s trial counsel’s
failure to advance an argument premised on the ground that the Supreme Court
would apply Apprendi to the Guidelines does not constitute ineffective assistance
of counsel. Spaziano,
36 F.3d at 1039; Jackson,
42 F.3d at 1359.
In light of the foregoing, the district court’s denial of Dubose’s § 2255
motion is
AFFIRMED.
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