Stallings, Brett A. v. United States ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3914
BRETT A. STALLINGS,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 06 C 136—William D. Stiehl, Judge.
____________
ARGUED APRIL 22, 2008—DECIDED JULY 30, 2008
____________
Before RIPPLE, EVANS and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. Brett Stallings was convicted of
possession of a firearm by a felon. See 18 U.S.C. § 922(g).
Mr. Stallings, an armed career criminal, see id. § 924(e),
was sentenced to 188 months’ imprisonment shortly
before the Supreme Court decided United States v. Booker,
543 U.S. 220 (2005) (holding that the sentencing guide-
lines are advisory, not mandatory). In this postconviction
proceeding under 28 U.S.C. § 2255, Mr. Stallings contends
that counsel on direct appeal was ineffective because she
failed to raise a claim under Booker. For the reasons set
forth in this opinion, we agree with Mr. Stallings that
2 No. 06-3914
counsel was deficient in failing to raise the claim, but,
because we cannot determine on the record before us
whether this shortcoming prejudiced Mr. Stallings, we
vacate the district court’s order and remand for further
proceedings on this issue.
I
BACKGROUND
Mr. Stallings, a convicted felon, was standing in a
parking lot when a police car approached him. Police
observed Mr. Stallings discard an item under a nearby
vehicle, and, when they retrieved it, they discovered it to
be a loaded revolver. Mr. Stallings was charged with
possession of a firearm by a felon and found guilty by
a jury.
Mr. Stallings was sentenced in November 2004, several
months after we had held the mandatory nature of the
sentencing guidelines to be unconstitutional in United
States v. Booker, 375 F.3d 508 (7th Cir. 2004), and three
months after the Supreme Court had granted certiorari
in that case, see United States v. Booker, 542 U.S. 956 (2004).
Over objection, the district court found that Mr. Stallings
had three qualifying convictions under section 924(e)(2)
and thus faced a minimum sentence of 15 years under
section 924(e)(1). The court, applying the guidelines,
calculated a total offense level of 33 and a criminal history
category of IV, which yielded an imprisonment range of
188 to 235 months.
Before sentencing Mr. Stallings to 188 months’ imprison-
ment, the district court stated that “under the law, I be-
lieve I am required to impose a certain, at least minimum
No. 06-3914 3
sentence.” R.107 at 21. Mr. Stallings’ arguments about his
failing health, the district court continued, were not
sufficiently corroborated by medical information to allow
the court “to depart downward or reduce a sentence
for that medical condition.” Id. Mr. Stallings’ trial counsel
did not object on any ground to the application of the
sentencing guidelines. But after the sentence had been
imposed, counsel addressed the following inquiry to the
court: “Judge, and I don’t know what the answer is,
maybe you can—with Blakely being under on [sic] the
Supreme Court, do you have to do any alternative sen-
tencing? Because I think you sentenced him under the
guidelines.” Id. at 26. The district court responded: “I did
not impose an alternative sentence. And I think the sen-
tence is appropriate. If it turns out I’m wrong, then we’ll
do it again.” Id. Nothing more was said on the subject
by counsel or the court.
Mr. Stallings appealed with newly appointed counsel.
Counsel argued both that there was insufficient evidence
to convict and that former counsel had rendered ineffec-
tive assistance during the trial. United States v. Stallings,
160 Fed. App’x 478 (7th Cir. 2005). The case was briefed
after the Supreme Court had decided Booker and after this
court had decided United States v. Paladino, 401 F.3d 471(7th Cir. 2005), and United States v. Schlifer, 403 F.3d 849(7th Cir. 2005). Nevertheless, appellate counsel did not
make a Booker argument in her brief, and the subject was
not raised during oral argument on October 25, 2005. We
affirmed the judgment in December 2005.
Mr. Stallings then filed a petition for habeas corpus
under section 2255 in February 2006. He raised a number
of claims, including that his appellate lawyer had been
ineffective because she did not argue that it was error for
4 No. 06-3914
the district court to sentence him as an armed career
criminal without proving his predicate convictions to a
jury beyond a reasonable doubt. In connection with this
contention, Mr. Stallings alleged that he had brought
Blakely v. Washington, 542 U.S. 296 (2004), to appellate
counsel’s attention but that she had ignored that decision
against his wishes. Mr. Stallings also claimed that he
should not have received a guidelines sentence because he
was sentenced “Post ‘Blakely’ and Pre Booker.” R.1 at 9. In
denying relief, the district court first concluded that Mr.
Stallings was foreclosed from raising a Booker claim by way
of section 2255. The court also rejected his claim that
appellate counsel had been ineffective, but it made no
mention of Booker in rejecting that claim.
Mr. Stallings filed a timely notice of appeal, which
we construed as an application for a certificate of
appealability. We granted Mr. Stallings a certificate
“regarding whether his appellate counsel was ineffective”
and directed the parties “to address whether appellate
counsel’s failure to argue that Stallings was entitled to
a limited remand to determine whether the sentencing
court would have imposed the same sentence under an
advisory guidelines regime, see United States v. Paladino, 401
F.3d 471, 483-84 (7th Cir. 2005), constituted ineffective
assistance of counsel.” Stallings v. United States, No. 06-3914
(7th Cir. Jan. 25, 2007) (order granting certificate of
appealability).1
1
In his brief, Mr. Stallings asked us to expand the certificate of
appealability to allow him to contend that appellate counsel
also was ineffective in failing to argue that a burglary con-
viction used in sentencing him as an armed career criminal
(continued...)
No. 06-3914 5
II
DISCUSSION
As a preliminary matter, Mr. Stallings makes a broader
argument than the one framed in the certificate of
appealability. He submits that his appellate counsel
should have asked not for a limited remand under
Paladino, as suggested by our certificate, but for a full
remand under United States v. Schlifer, 403 F.3d 849 (7th Cir.
2005). This is so, according to Mr. Stallings, because “by
citing to Blakely at sentencing . . . trial counsel preserved
his Booker argument, making Mr. Stallings eligible for
harmless error review under Schlifer.” Appellant’s Br. at
17. We cannot accept Mr. Stallings’ premise. When
Mr. Stallings’ trial counsel mentioned Blakely at sen-
tencing, he did no more than ask the district court about
the governing law; counsel did not offer a view of the
law or suggest that Mr. Stallings had been sentenced
improperly, and therefore he did not preserve any error.
Thus, the question before us, as correctly framed in the
order granting a certificate of appealability, is whether
Mr. Stallings’ appellate counsel was ineffective for
failing to raise the Paladino argument.
1
(...continued)
was not a “violent felony” under section 924(e)(2)(B). We
previously rejected this expansion request. Stallings v. United
States, No. 06-3914 (7th Cir. Aug. 2, 2007) (order denying
expansion of certificate of appealability). In any event, the
proposed theory is frivolous. The indictment and judgment
for that conviction reveal that Mr. Stallings burglarized a
structure, and burglary of a structure is per se a “violent felony.”
See 18 U.S.C. § 924(e)(2)(B)(ii); Taylor v. United States, 495
U.S. 575, 599 (1990).
6 No. 06-3914
On review from the denial of a section 2255 motion,
we review findings of fact for clear error and findings of
law de novo. Bethel v. United States, 458 F.3d 711, 716 (7th
Cir. 2006). To show that his appellate counsel was inef-
fective, Mr. Stallings would have to prove that (1) coun-
sel’s performance fell below an objective standard of
reasonableness, and (2) he was prejudiced by counsel’s
error. Strickland v. Washington, 466 U.S. 668, 687-92 (1984);
Suggs v. United States, 513 F.3d 675, 678 (7th Cir. 2008). We
presume that counsel’s performance was reasonable, and
that presumption must be overcome for Mr. Stallings to
succeed. Martin v. Evans, 384 F.3d 848, 852 (7th Cir. 2004).
When a petitioner contends that his appellate counsel
was ineffective because counsel overlooked a meritorious
argument, we first examine the record to see whether
the appellate attorney in fact omitted “significant and
obvious” issues. Suggs, 513 F.3d at 678; Martin, 384 F.3d
at 851-52. If so, we then compare the neglected issues to
those actually raised; if the ignored issues are “clearly
stronger” than those raised, appellate counsel was defi-
cient. Lee v. Davis, 328 F.3d 896, 900-01 (7th Cir. 2003). We
shall not second-guess strategic decisions that were
arguably appropriate at the time but that hindsight has
revealed to be unwise. Mason v. Hanks, 97 F.3d 887, 893
(7th Cir. 1996). To meet the prejudice prong Mr. Stallings
must show “a reasonable probability” that the omitted
Booker claim “would have altered the outcome” of his
direct appeal had it been raised. See Lee, 328 F.3d at 901.
We have not addressed previously whether the failure
of appellate counsel to raise a forfeited Booker claim and
request a Paladino remand could constitute ineffective
assistance. At least one district court in this circuit has
granted a section 2255 motion made on that ground. See
Gant v. United States, 2006 WL 842374, at *4 (C.D. Ill. Mar.
No. 06-3914 7
28, 2006); see also United States v. Pena, 2007 WL 496731,
at *1 (W.D. Mich. Feb. 13, 2007).
We agree with Mr. Stallings that, in this particular case,
the omitted Paladino argument was “significant and
obvious” and also “clearly stronger” than the arguments
raised by appellate counsel. A limited remand under
Paladino was available to any appellant who might con-
ceivably benefit from the procedure, and the threshold
was very low. Meanwhile, the issues appellate counsel
did raise were nearly doomed to fail. See United States v.
Harris, 394 F.3d 543, 557-58 (7th Cir. 2005) (explaining
why ineffective-assistance claims should rarely be
brought on direct appeal); United States v. Hicks, 368
F.3d 801, 804-05 (7th Cir. 2004) (stating that the standard
of review for insufficiency claim is “daunting”).
Had Mr. Stallings asked for a Paladino remand on direct
appeal, we would have granted it; the sentencing judge’s
cryptic comment about having imposed an “appropriate”
sentence is not enough from which to conclude that the
district court would not have considered a lower sen-
tence had it understood the advisory nature of the guide-
lines. As long as the district court viewed the guidelines
to be mandatory and did not convey that it would reject
greater leniency under an advisory system, a Paladino
remand request was available to any defendant who
failed to make a Booker argument at sentencing. See United
States v. Washington, 417 F.3d 780, 788-89 (7th Cir. 2005).
The district court’s belief that it was required to impose
a guidelines sentence constituted error. United States v.
White, 406 F.3d 827, 835 (7th Cir. 2005). In the limited
remand, we would have asked the district court whether
the sentence might have been different under the ad-
visory guidelines regime—in other words, whether the
error was prejudicial. Paladino, 401 F.3d at 483-84. This
8 No. 06-3914
also is the key remaining question under the Strickland
test. 466 U.S. at 692.
The district court, however, never addressed the
theory that appellate counsel’s failure to seek a Paladino
remand constituted ineffective assistance. If the district
court had addressed this question when it first con-
sidered the section 2255 motion, it could have answered
the question of prejudice simply by saying whether it
would have sentenced Mr. Stallings any differently had
it known the guidelines were advisory. Because the dis-
trict court did not answer this question, we cannot deter-
mine whether counsel’s deficient performance resulted
in prejudice to Mr. Stallings. Thus, we vacate the court’s
order and remand for further consideration.
If the district court announces that it would have replied
to a Paladino remand by informing this court that the
same sentence would have been imposed, then Mr.
Stallings could not have been prejudiced by appellate
counsel’s failure to raise the argument on appeal. In that
event, the section 2255 motion should be denied. On the
other hand, if the district court would have signaled an
intention to resentence in response to a Paladino remand,
then it should grant the section 2255 motion, vacate
Mr. Stallings’ sentence and resentence him.
Conclusion
Accordingly, we vacate the district court’s judgment and
remand for further proceedings consistent with this
opinion.
VACATED and REMANDED
USCA-02-C-0072—7-30-08