Nichols v. United States

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0160p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

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Petitioner-Appellant, -
THOMAS ALBERT NICHOLS,
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No. 05-6452
v.
,
>
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Respondent-Appellee. -
UNITED STATES OF AMERICA,
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Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 05-00246—Thomas A. Wiseman, Jr., District Judge.
Argued: September 10, 2008
Decided and Filed: April 29, 2009
Before: BOGGS, Chief Judge; MARTIN, BATCHELDER, MOORE, COLE, CLAY,
GILMAN, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN,
KETHLEDGE, and WHITE, Circuit Judges.
_________________
COUNSEL
ARGUED: Mary Hale Morris, BURCH, PORTER & JOHNSON, Memphis, Tennessee, for
Appellant. John-Alex Romano, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee. ON BRIEF: Mary Hale Morris, Mary C. Hamm, BURCH,
PORTER & JOHNSON, Memphis, Tennessee, for Appellant. John-Alex Romano, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., Hilliard H. Hester III,
ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee.
BATCHELDER, J., delivered the opinion of the court, in which BOGGS, C. J.,
GILMAN, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN,
KETHLEDGE, and WHITE, JJ., joined. MOORE, J. (pp. 19-25), delivered a separate
dissenting opinion, in which MARTIN, COLE, and CLAY, JJ., joined.

1
No. 05-6452 Nichols v. United States Page 2

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OPINION
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ALICE M. BATCHELDER, Circuit Judge. We granted en banc review to decide
an important constitutional question: whether — and if so, under what conditions — a
criminal defense attorney renders “deficient performance” under Strickland’s ineffective-
assistance-of-counsel rubric by failing to preserve a future-change-in-the-law argument in
the hope that the Supreme Court will strike down the existing law while that defendant’s
case is still pending on direct appeal.

But, because this particular defendant cannot prevail on his claim of ineffective
assistance of counsel in any event, inasmuch as he cannot demonstrate the necessary
prejudice, we find that we need not decide this broader constitutional question. See, e.g.,
Pearson v. Callahan, 555 U.S. --, 129 S. Ct. 808, 821 (2009) (citing “the older, wiser judicial
counsel not to pass on questions of constitutionality unless such adjudication is unavoidable”
(quotation and editorial marks omitted)); United States v. Elkins, 300 F.3d 638, 647 (6th Cir.
2002) (“Courts should avoid unnecessary constitutional questions.”); Bowman v. Tenn.
Valley Auth., 744 F.2d 1207, 1211 (6th Cir. 1984) (“[W]e follow the longstanding practice
of the Supreme Court . . . [in declining] to decide questions of a constitutional nature unless
absolutely necessary to a decision of the case.” (quotation marks and citation omitted));
Tower Realty v. City of East Detroit, 196 F.2d 710, 724 (6th Cir. 1952) (“It is the duty of
federal courts to avoid the unnecessary decision of the constitutional questions.”).

This defendant’s only claim of prejudice is that he was denied the benefit of
Booker’s change in the law; that is, he missed the opportunity to be re-sentenced under a
post-Booker, advisory Guidelines scheme. But, as it turns out, the only way this defendant
could have obtained the benefit of Booker’s change in the law was by petitioning the
Supreme Court for certiorari, which he did not do; this prejudice is therefore the direct and
sole consequence of the failure to petition for certiorari. Because defendants are not
constitutionally entitled to the assistance of counsel in preparing petitions for certiorari, see
Ross v. Moffitt, 417 U.S. 600, 617 (1974), this defendant cannot attribute this prejudice to
No. 05-6452 Nichols v. United States Page 3

any constitutionally deficient performance by his counsel. We must therefore AFFIRM the
district court’s judgment denying the defendant’s motion to vacate his sentence.

I.

On April 27, 2000, a federal grand jury indicted Carlton Smith and Thomas Nichols,
the appellant here, on bank-extortion and firearm charges. Their joint trial began on May
13, 2002. Ten days later (May 23, 2002), the jury returned a guilty verdict and the court
ordered a presentence investigation report (“PSR”). The district court sentenced each of
them in October 2002.

By the time of their sentencing, the Supreme Court’s decision in Apprendi v. New
Jersey, 530 U.S. 466 (2000), had been of record for more than two years. In Apprendi, a
five-member majority had held that, “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490 (emphasis added).
In addition, a different group of five justices (the four dissenters and a concurring justice)
suggested, without so holding, that this principle could not be limited to the breach of
statutory maximum sentences, but would necessarily extend “to all determinate-sentencing
schemes in which the length of a defendant’s sentence[, even] within the statutory range[,]
turns on specific factual determinations (e.g., the [F]ederal Sentencing Guidelines).” Id. at
544 (O’Connor, J., dissenting, joined by Rehnquist, C.J., and Kennedy and Breyer, JJ.); id.
at 523 n.11 (Thomas, J., concurring). Thus, the combined opinions in Apprendi cast some
1
legitimate doubt on the future validity of the Federal Sentencing Guidelines.

Shortly after the Apprendi decision, this circuit (on September 4, 2001)
considered and rejected an Apprendi-based challenge to the Federal Sentencing
Guidelines, explaining:

Appellant [] makes the novel argument that Apprendi also should apply
to [Federal Sentencing] Guideline enhancements even where the

1
We note also that five different justices suggested, without so holding, that Almendarez-Torres
v. United States, 523 U.S. 224 (1998), may have been “incorrectly decided,” thus calling its future validity
into question as well. See Apprendi, 530 U.S. at 489. But, even today, over eight years after Apprendi,
“Almendarez-Torres has not been overruled and is still good law.” United States v. Martin, 526 F.3d 926,
942 (6th Cir. 2008) (citation omitted).
No. 05-6452 Nichols v. United States Page 4

statutory maximum is not exceeded, and that these enhancements are
questions that should be decided by a jury, not a trial judge. The holding
in Apprendi, however, does not remove this discretion from a district
judge, and therefore, Appellant’s argument is without merit.
United States v. Schulte, 264 F.3d 656, 660 (6th Cir. 2001). By September 2002, this
same challenge had been raised and rebuffed several times, and our established rule was
that it had no merit:

In this circuit, Apprendi has been held to apply when the district court
determined a fact that caused the defendant’s sentence to exceed a
statutory maximum or, under some limited circumstances, that required
a statutorily mandated minimum sentence, without a jury determining the
fact beyond a reasonable doubt. Apprendi has never been held to apply
to every fact that increases the defendant’s sentence within the rubric of
the [Federal Sentencing G]uidelines.
United States v. Chapman, 305 F.3d 530, 535 (6th Cir. 2002) (decided Sept. 26, 2002)
(emphasis added); see also United States v. Copeland, 304 F.3d 533, 555 n.8 (6th Cir.
2002) (decided Sept. 10, 2002) (noting that “this court has held that Apprendi does not
remove the discretion of the district judge in determining sentencing enhancements[, so],
this argument is without merit”).2 Such was the state of our case law at the time
Nichols’s counsel was preparing for the sentencing hearing.

On October 2, 2002, Nichols’s counsel submitted a 20-page sentencing
memorandum in which he raised numerous objections, both legal and factual, to the
sentencing enhancements and calculations recommended in the PSR, and also argued for
a downward departure. Notably, he did not cite Apprendi or raise any Apprendi-type
argument. On October 7, 2002, counsel for co-defendant Smith filed his own objections
to the PSR and also moved for a downward departure.3

2
It perhaps bears mention that the Copeland panel issued an amended opinion on February 25,
2003, that superseded the original opinion with regard to an unrelated proposition, but did not change the
above-cited legal proposition or the quoted language. See United States v. Copeland, 321 F.3d 582, 605
n.8 (6th Cir. 2003).
3
Smith’s motions are not in the record submitted to us in this appeal, but the district court’s
sentencing order and the subsequent appellate opinion contain no indication that Smith raised Apprendi
or any Apprendi-type argument. Had Smith raised such an argument at the joint sentencing, the court
would have been obliged to address it, and the same is true for any issue raised in the consolidated appeal.
Neither court mentioned an Apprendi argument.
No. 05-6452 Nichols v. United States Page 5

On October 11, 2002, the district court held a sentencing hearing, during which
it rejected Nichols’s counsel’s arguments and adopted the PSR’s recommended
Guidelines calculations — an offense level of 40 and a criminal history category of IV,
which resulted in a Guidelines range of 360 months to life. The court imposed a
sentence of 300 months in prison for count one and 405 months for count two,4 to run
concurrently with each other and with a separate sentence that Nichols had received
from the Eastern District of Tennessee. The court imposed an identical sentence on
Smith.

Each defendant filed a notice of appeal that same day, October 11, 2002, and
though Nichols and Smith proceeded with separate counsel, we consolidated the two
appeals. Smith raised several claims, challenging both his conviction and sentence,
though he did not raise any Apprendi-type challenge. See United States v. Nichols, 100
F. App’x 524 (6th Cir. 2004). Nichols raised only one claim, challenging a jury
instruction, and made no mention of Apprendi. Id. at 526. The panel heard argument
on January 27, 2004, and filed its opinion on June 11, 2004, affirming the district court.

On June 24, 2004 — almost two weeks after the panel’s filing of its opinion
(June 11, 2004) and one day before the expiration of Fed. R. App. P. 40(a)(1)’s 14-day
period to seek rehearing of that decision (June 25, 2004) — the Supreme Court issued
its decision in Blakely v. Washington, 542 U.S. 296, 303 (2004), holding that “the
‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant.” On July 2, 2004, Smith’s attorney (belatedly) moved the panel to stay the
mandate so that he could petition for rehearing out-of-time on the basis of Blakely, but
the panel summarily denied the motion without explanation. Nichols’s attorney did not
move the panel to stay the mandate or move for any rehearing, and the mandate issued
on July 12, 2004.

4
The sentence also included five years of supervised release and restitution in the amount of
$851,000.
No. 05-6452 Nichols v. United States Page 6

Because the panel had entered judgment on June 11, 2004, Nichols and Smith
had until September 9, 2004, (i.e., 90 days) to petition the United States Supreme Court
for certiorari. See Sup. Ct. R. 13(3) (“The time to file a petition for a writ of certiorari
runs from the date of entry of the judgment or order sought to be reviewed, and not from
the issuance date of the mandate[.]”). Nichols’s counsel did not petition for certiorari,
and, in fact, took no further action on Nichols’s behalf. Meanwhile, Smith’s attorney did
petition for certiorari on September 9, 2004, arguing that the sentence was improper
because Blakely should apply to the Federal Sentencing Guidelines.

Elsewhere, on July 9, 2004, the Seventh Circuit had applied Blakely to invalidate
the Federal Guidelines, see United States v. Booker, 375 F.3d 508 (7th Cir. 2004), and
by July 21, 2004, the government had petitioned for certiorari and expedited review.
The Supreme Court granted certiorari on August 2, 2004, and heard argument on
October 4, 2004. Meanwhile, on August 26, 2004, we had issued an en banc decision,
United States v. Koch, 383 F.3d 436, 438 (6th Cir. 2004), in which we held that “Blakely
does not compel the conclusion that the Federal Sentencing Guidelines violate the Sixth
Amendment,” and noted that the Supreme Court would be considering the issue in the
coming months. On January 12, 2005, the Court issued United States v. Booker, 543
U.S. 220 (2005), in which it held that the mandatory Guidelines did violate the Sixth
Amendment.

In light of Booker and the nature of Smith’s claim, the Supreme Court granted
Smith’s petition for certiorari and remanded his case for resentencing. See Smith v.
United States, 543 U.S. 1180 (2005). On remand, the district court sentenced him to 396
months in prison,5 which was nine (9) months less than his original sentence. Smith
appealed and a panel of this court affirmed the new sentence. Smith petitioned for
certiorari and the Supreme Court denied his petition.

5
The district court re-sentenced Smith to 300 months for count one and 396 months for count two,
to run concurrently with each other and with a separate sentence that Smith had received from the Eastern
District of Tennessee. The sentence also included five years of supervised release and restitution in the
amount of $851,000.
No. 05-6452 Nichols v. United States Page 7

Meanwhile, on March 25, 2005, Nichols, acting pro se, filed a 28 U.S.C. § 2255
motion to vacate his conviction and sentence, asserting two claims of ineffective
assistance of counsel. One claim pointed to his trial counsel’s failure to challenge the
indictment and jury instruction, which, according to Nichols, did not charge him with
the necessary specific mens rea. The other claim pointed to his counsel’s failure to raise
Apprendi at sentencing and Blakely on direct appeal in opposition to the sentencing
court’s use of Guidelines enhancements, premised on facts not found by the jury, to
increase his sentence above the 50- to 63-month range corresponding to the base offense
level. Recall, however, that at the time of his sentencing in October 2002,“this
[Apprendi] argument [wa]s without merit” under the law of this circuit. See Copeland,
304 F.3d at 555 n.8. Recall as well that the opinion disposing of Nichols’s appeal had
been of record for two weeks (since June 11, 2004) by the time Blakely was issued (June
24, 2004), and, therefore, so far as Blakely is concerned, Nichols was really arguing that
his appellate counsel was ineffective for failing either to move the panel to reconsider
the opinion or to petition the Supreme Court for certiorari.

The district court summarily denied Nichols’s § 2255 motion in a one-page
opinion, finding that “[b]oth allegations [of ineffective assistance of counsel] are without
merit.” The district court explained that the first claim was without merit because a
“[s]pecific charge of mens rea is not required[,] Warner v. Zent, 997 F.2d 116, 129 (6th
Cir. 1993).” The district court denied the second claim by explaining that “[Nichols]’s
appeal was decided against him on June 11, 2004[,] Booker v. United States was not
decided until January 12, 2005[,] [and] [t]he Sixth Circuit decided in Humphress v.
United States, 398 F.3d 855, 860 (6th Cir. 2005)[,] that Booker was not retroactive.
Therefore, [Nichols]’s complaint regarding enhancements is also without merit.”

Nichols obtained a Certificate of Appealability (“COA”) on a single issue:
“whether Nichols was denied the effective assistance of counsel by his attorney’s failure
to argue that it was improper to enhance his sentence based on facts that had not been
proved to a jury beyond a reasonable doubt.” In his pro se brief to the panel, Nichols
No. 05-6452 Nichols v. United States Page 8

actually raised three separate-but-related ineffective-assistance-of-counsel claims
regarding the sentencing enhancements, arguing (in his own words):

Had [Nichols]’s Counsel [1] raised the objections at Sentencing under the
principles set in Jones, supra, and Apprendi, supra, to the sentence
enhancements and [2] followed the objections up on direct appeal with
supplemental objections under Blakely, and [3] Certiorari to the Supreme
Court, then a different outcome of the proceedings is shown, because just
as co-defendant Carlton Smith’s sentences were vacated, [Nichols]’s
sentences also would have been vacated[.]
The government responded with a five-page brief, explaining that this circuit had already
held, in United States v. Burgess, 142 F. App’x 232 (6th Cir. 2005), that the failure of
an attorney to perceive or anticipate the Supreme Court’s decision in Booker was not
ineffective assistance of counsel.

In Burgess, we had indeed rejected Burgess’s pro se argument that, in September
2003, his trial counsel was constitutionally ineffective for failing to anticipate Booker,
based on Apprendi and Blakely, and correspondingly failing to argue that the mandatory
nature of the Federal Sentencing Guidelines was unconstitutional. Judge Clay, writing
for a unanimous panel, explained:

Burgess’s trial counsel cannot be deemed [constitutionally] ineffective
for failing to anticipate the Supreme Court’s June 24, 2004[,] holding in
Blakely . . . . The Supreme Court had not even agreed to hear the appeal
in Blakely until [October 20, 2003,] over a month after Burgess’s
sentencing. Nor can counsel be deemed ineffective for lacking the
additional prescience to anticipate that the eventual holding in Blakely
would lead to the Supreme Court’s January 12, 2005[,] decision in
Booker[,] . . . particularly because the Blakely opinion makes clear that
it expresses no opinion on the continuing validity of the [F]ederal
[G]uidelines.
Id. at 240 (certain citations omitted). In his reply brief, Nichols countered Burgess by
insisting that he was not arguing that his counsel should have anticipated Booker; instead
— he argued — his counsel had but to raise the arguments and then (even ignorantly)
reap the benefit of Booker:

[T]he government keeps trying to keep this [C]ourt from noticing . . .
that[] the question before [it] is, if [Nichols]’s counsel had [1] raised []
No. 05-6452 Nichols v. United States Page 9

objections at sentencing under Apprendi and [2] pursued them on direct
appeal (including [3] Certiorari to the Supreme Court) under the
principles set in Blakely, then [] there [is] a reasonable probability that
the outcome of these proceedings would have been different.
The panel accepted Nichols’s argument and granted him relief, holding that he
had indeed been denied his constitutional right to the effective assistance of counsel.
Nichols v. United States, 501 F.3d 542 (6th Cir. 2007), reh’g en banc granted and
opinion vacated (Jan. 3, 2008).

The Government moved for en banc review, claiming that the panel had
committed “precedent-setting error[s] of exceptional public importance.” See Sixth Cir.
R. 35(c); see also Fed. R. App. P. 35(a). We granted the motion, vacated the panel
opinion, and ordered re-briefing. Whereas Nichols was formerly pro se, he now has
counsel who, in their “Supplemental En Banc Brief,” have framed the appeal in terms
of Blakely and Booker, rather than Apprendi, to wit:

This case presents the issue of whether Nichols’s court-appointed
counsel was [constitutionally] ineffective for failing to challenge United
States Sentencing Guidelines enhancements based upon facts that had not
been found by a jury, particularly at a time when countless other
defendants had raised the issue in view of the Supreme Court’s decision
in Blakely v. Washington, 542 U.S. 296 (2004), and, later, in view of the
Supreme Court’s grant of certiorari in United States v. Booker, 542 U.S.
956 (2004) (granting certiorari).
Elsewhere in the brief, Nichols’s en banc counsel argue:

[B]ecause Nichols’s [original trial and appellate] counsel ignored [1] the
well-known decision in Blakely, [2] the grant of certiorari in Booker, and
[3] the actions taken by other lawyers involved in Nichols’s co-
defendant’s virtually identical case, Nichols’s counsel’s performance
‘fell below an objective standard of reasonableness.’
Consequently, the focus of the en banc argument is substantially different from what the
panel considered, namely, that by failing to raise Apprendi at sentencing, on direct
appeal, and in a petition for certiorari, Nichols’s counsel provided ineffective assistance.
As if to emphasize their break from Nichols’s former (pro se) theory, Nichols’s new
counsel offer this very frank concession:
No. 05-6452 Nichols v. United States Page 10

Had Nichols’s conviction actually been final on June 11, 2004, before
Blakely was decided, this would be a different case. As discussed,
however, many events after June 11, 2004 (including the Blakely
decision, the lower courts’ holdings that Blakely had invalidated the type
of enhancements applied to Nichols’s sentence, the Supreme Court’s
grant of certiorari in Booker, and Smith’s Sixth Circuit and Supreme
Court filings) demonstrate the ineffectiveness of Nichols’s lawyer for
failing to raise the issue during the three months following the Blakely
decision.
The government counters that after June 11, 2004, Nichols no longer had a
constitutional right to counsel and, consequently, he had no constitutional right to the
effective assistance of counsel. Therefore, none of the events that transpired after June
11, 2004 (i.e., “in the three months following the Blakely decision”), can render
Nichols’s counsel constitutionally ineffective.

Nichols’s pro se arguments, together with these new arguments to the en banc
court, identify a continuum — from sentencing through direct appeal — during which
Nichols claims he was repeatedly denied the effective assistance of counsel as
guaranteed by the Constitution. But, as we will explain, there exists a sharp line of
demarcation on this continuum, before which a defendant has a constitutional right to
counsel, and after which that same defendant does not. Nichols cannot prove ineffective
assistance of counsel because he cannot link the two pieces of the ineffective-assistance
standard — deficient performance and prejudice — on the same side of the demarcation:
he cannot show prejudice at any point at which he had a right to counsel, and he cannot
show a right to counsel (and, hence, deficient performance) at any point at which he
could show prejudice.

II.

The Sixth Amendment guarantees that at trial and on direct “first tier” appeal
every criminal defendant will have access to a lawyer to assist with his or her defense.
See Halbert v. Michigan, 545 U.S. 605, 610 (2005). But, the Constitution does not
entitle a defendant to the assistance of counsel for a discretionary appeal (e.g., a petition
for certiorari). Ross, 417 U.S. at 617 (“[T]his Court has followed a consistent policy of
No. 05-6452 Nichols v. United States Page 11

denying applications for appointment of counsel by persons seeking to file jurisdictional
statements or petitions for certiorari in this Court.”). And, “where there is no
constitutional right to counsel there can be no deprivation of effective assistance,”
Coleman v. Thompson, 501 U.S. 722, 752 (1991) (citation omitted), so the failure to file
for such review cannot amount to constitutionally ineffective assistance. See
Wainwright v. Torna, 455 U.S. 586, 587-88 (1982) (holding that because the defendant
had no constitutional right to the assistance of counsel in pursuit of state supreme court
certiorari, “he could not be deprived of the effective assistance of counsel by his retained
counsel’s failure to file the [certiorari] application timely”).

At trial and on first-tier appeal — the stages at which the defendant does have
a constitutional right to counsel — this constitutional right to counsel means “the right
to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14
(1970) (emphasis added).

[But, the Sixth Amendment] does not guarantee [] an excellent lawyer.
It does not even guarantee [] a good lawyer. Instead, the Sixth
Amendment right to the effective assistance of counsel entitles [the
criminal defendant] to nothing more than a reasonably competent
attorney whose performance falls within the [wide] range of competence
demanded of attorneys in criminal cases.
Moran v. Trippett, 149 F.3d 1184 (table), 1998 WL 382698, at *5 (6th Cir. 1998)
(citation and quotation marks omitted); see also Yarborough v. Gentry, 540 U.S. 1, 8
(2003) (noting that “even if an omission [of an issue] is inadvertent, relief is not
automatic [because] [t]he Sixth Amendment guarantees reasonable competence, not
perfect advocacy judged with the benefit of hindsight”).

An habeas petitioner seeking to convince a reviewing court that his or her
counsel’s assistance was constitutionally ineffective must prove both prongs of a two-
prong test:

First, the [petitioner] must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment.
No. 05-6452 Nichols v. United States Page 12

Second, the [petitioner] must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s errors were
so serious [that those errors] deprive[d] the [petitioner] of a fair trial, a
trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984) (paragraph break inserted). Because
the petitioner must satisfy both prongs, the inability to prove either one of the prongs —
regardless of which one — relieves the reviewing court of any duty to consider the other.
See id. at 697.

To demonstrate the first prong, the petitioner must point to specific errors in
counsel’s performance, United States v. Cronic, 466 U.S. 648, 666 (1984), and the
reviewing court must subject the allegations to rigorous scrutiny, determining “whether,
in light of all the circumstances, the identified acts or omissions were outside the wide
range of professionally competent assistance,” Strickland, 466 U.S. at 690. The court
must “indulge a strong presumption” that counsel’s conduct was reasonable and might
be considered sound trial strategy. Id. at 689 (citation and quotation marks omitted).
“[J]udicial scrutiny of a counsel’s performance must be highly deferential and [] every
effort must be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Bell v. Cone, 535 U.S. 685, 698 (2002) (citation and
quotation and editorial marks omitted).

A petitioner demonstrates prejudice — the second prong — by “showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” Strickland, 466 U.S. at 687. A reviewing court does not speculate
whether a different strategy might have been more successful, but instead “focuses on
the question [of] whether counsel’s deficient performance renders the result of the trial
unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364,
372 (1993). “Unreliability or unfairness does not result [unless] the ineffectiveness of
counsel [] deprive[s] the defendant of a[] substantive or procedural right to which the
law entitles him.” Id. Otherwise stated, the petitioner “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
No. 05-6452 Nichols v. United States Page 13

proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Williams v. Taylor, 529 U.S. 362,
391 (2000) (quotation marks omitted).

At the furthest point of his temporal continuum, Nichols claims that his appellate
counsel was deficient — and, consequently, rendered ineffective assistance — because
he failed to petition the Supreme Court for certiorari after we affirmed his sentence on
June 11, 2004. As mentioned earlier, Nichols claims prejudice — this is, in fact, his only
claim of prejudice — on the basis that he was denied the benefit of Booker’s change in
the law (i.e., re-sentencing under a post-Booker, advisory Guidelines scheme), a benefit
he would have received had he petitioned for certiorari — because, with a pending
petition for certiorari, his conviction would not have become final before the Supreme
Court decided Booker. See United States v. Barnett, 398 F.3d 516, 524 (6th Cir. 2005).
So, it certainly appears that Nichols can show prejudice on this claim, and the question
is whether his counsel’s failure to petition for certiorari amounts to constitutionally
deficient performance.

The simple answer is no. As the Supreme Court has made clear, the Constitution
does not entitle a criminal defendant to the assistance of counsel for the filing of a
petition for certiorari, so counsel’s failure to file that petition cannot amount to
constitutionally ineffective assistance. See Ross, 417 U.S. at 617; Torna, 455 U.S. at
587-88; cf. Pennsylvania v. Finley, 481 U.S. 551, 557 (1987) (“Since respondent has no
underlying constitutional right to appointed counsel in state post-conviction proceedings,
she has no constitutional right to insist on the Anders procedures which were designed
solely to protect that underlying constitutional right.”). Because Nichols had no right
to the assistance of counsel for the filing of his petition for certiorari, if there was an
error in failing to file that petition, we must attribute that error to Nichols himself, not
his counsel. Cf. Abdus-Samad v. Bell, 420 F.3d 614, 632 (6th Cir. 2005) (“[T]here is no
constitutional right to an attorney in collateral proceedings[, so] any errors of a
post-conviction attorney, acting as the agent for his client, are attributable solely to that
No. 05-6452 Nichols v. United States Page 14

client.” (citing Coleman, 501 U.S. at 752-53)); see also Pena v. United States, 534 F.3d
92, 95-96 (2d Cir. 2008); Steele v. United States, 518 F.3d 986, 988 (8th Cir. 2008).

Nichols’s en banc counsel appear to have abandoned — or at least de-
emphasized — the constitutional aspect of this claim, and appear instead to argue some
type of general ineffectiveness:

Although Nichols’s claim does not depend on his having a right to
counsel at the petition for certiorari stage . . . [t]here is no question that
Nichols was entitled to effective counsel who would continue to
represent him throughout the pendency of his appeal, including the time
after the appeals court had issued its judgment.
Nichols’s en banc counsel base this assertion on Sixth Circuit Rules 101(a) &
(g),6 in which we have imposed certain obligations on counsel who appear in this court
— trial counsel must continue representation on appeal “until specifically relieved by
this [c]ourt,” id. at 101(a), and losing appellate counsel must petition for certiorari, under
certain circumstances, id. at 101(g).

But Nichols claims relief under 28 U.S.C. § 2255, and “[a] prisoner seeking relief
under § 2255 must allege as a basis for relief: (1) an error of constitutional magnitude;
(2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was
so fundamental as to render the entire proceeding invalid.” Pough v. United States, 442
F.3d 959, 964 (6th Cir. 2006) (quotation marks omitted); see also Hill v. United States,
368 U.S. 424, 428 (1962). Nichols claims a constitutional error. Therefore, absent a
constitutional right, Nichols has no claim. This circuit’s procedural rules, standing
alone, do not create a constitutional right or impose a constitutional duty. Even if we
accept Nichols’s claim that his counsel performed deficiently under our procedural rules,

6
The Sixth Circuit Rules were adopted in 1998 and last updated June 1, 2008. The two rules that
Nichols’s en banc counsel cite here are listed in the “Supplemental Procedural Rules” and state:
Sixth Cir. R. 101(a): “Continued Representation on Appeal. Trial counsel in criminal
cases, whether retained or appointed by the district court, is responsible for the
continued representation of the client on appeal until specifically relieved by this
Court.”
Sixth Cir. R. 101(g): “Petition for Writ of Certiorari. Counsel appointed by the Court
is obligated to file a petition for a writ of certiorari in the Supreme Court of the United
States if the client requests that such a review be sought and, in counsel’s considered
judgment, there are grounds for seeking Supreme Court review.”
No. 05-6452 Nichols v. United States Page 15

that performance would not be constitutionally deficient solely because of a failure to
comply with our procedural rules. See Steele, 518 F.3d at 988; see also Chalk v.
Kuhlman, 311 F.3d 525, 528-29 (2d Cir. 2002). Without a constitutional right to
counsel, we do not even reach the question of deficiency under Strickland. See Miller
v. Keeney, 882 F.2d 1428, 1431 n.2 (9th Cir. 1989).

We conclude that, because Nichols had no constitutional right to counsel at the
petition-for-certiorari stage, he cannot state a claim for ineffective assistance of counsel
due to his counsel’s failure to petition for certiorari. The importance of this conclusion
cannot be overstated because the failure to petition for certiorari negates any prejudice
that may have resulted from Nichols’s trial or appellate counsels’ allegedly deficient
performance. That is, Nichols’s sole claim of prejudice hangs on his inability to receive
the benefit of Booker (the benefit that co-defendant Smith did receive in the form of a
post-Booker re-sentencing and a nine-month sentence reduction), but Nichols could only
have received the benefit of Booker if he had petitioned for certiorari, which he did not
do.

Nichols fares no better with his claims that his counsel were ineffective at the
trial and first-tier appeal stages. Regardless of whether those attorneys raised and
preserved the Apprendi or Blakely arguments, Nichols could not have benefitted from
Booker’s subsequent change in the law — that is, obtained a new sentencing hearing
under a post-Booker, advisory Guidelines scheme — unless he petitioned the Supreme
Court for certiorari, which he did not do. Hence, the outcomes of the trial and first-tier
appeal would have been the same whether or not Nichols’s counsel performed as he
contends they should have, see Williams, 529 U.S. at 391, and their alleged errors have
not deprived him of any “right to which the law entitles him,” see Lockhart, 506 U.S. at
372.

Finally, Nichols’s en banc counsel emphasize that his appellate counsel was
ineffective because he failed to move the panel for reconsideration or the court for a
rehearing en banc:
No. 05-6452 Nichols v. United States Page 16

[M]any events after [issuance of the appellate opinion on] June 11,
2004[,] including the Blakely decision, the [other federal] courts’
holdings that Blakely had invalidated the type of enhancements applied
to Nichols’s sentence, the Supreme Court’s grant of certiorari in Booker,
and Smith’s Sixth Circuit [motion for rehearing] and Supreme Court
[petition for certiorari] demonstrate the ineffectiveness of Nichols’s
lawyer for failing to raise the issue during the three months following the
Blakely decision.
Nichols’s en banc counsel’s theory is that, even after the entry of judgment in his first-
tier appeal (June 11, 2004), his appellate counsel was still obligated to assist with further
motions on appeal.7

This possibility raises a series of questions: Is a motion for rehearing part of the
first-tier appeal (i.e., a motion within the first-tier appeal), or is it a separate review?
Does a defendant have a right to the assistance of counsel on a motion for rehearing of
an appellate decision? If so, is counsel obligated to file such a motion at the defendant’s
request, or would some type of Anders approach apply? Is counsel constitutionally
obligated to file such a motion even absent a request by the defendant (as Nichols’s en
banc counsel argue here) and, if so, under what circumstances?

But we need not decide these questions because, as with counsel’s conduct at
trial and on first-tier appeal, even if we were to assume that Nichols’s original appellate
counsel performed deficiently by failing to move this court for rehearing of Nichols’s
appeal in light of Blakely, Nichols cannot show any resulting prejudice. As we made
clear in Koch, 383 F.3d at 438, our view at that time was that “Blakely d[id] not compel
the conclusion that the Federal Sentencing Guidelines violate the Sixth Amendment.”

7
In support of this possibility, Nichols refers to Smith v. Ohio Department of Rehabilitation, 463
F.3d 426, 428 (6th Cir. 2006), a case in which we held that counsel’s failure to provide the defendant with
timely notice of the appellate decision was constitutionally deficient performance because the duty to
communicate the outcome of the appeal “related to the representation on direct appeal of right at the [first-
tier] Court of Appeals,” a proceeding in which the defendant does have a constitutional right to the
assistance of counsel. But Smith does not speak to the question of an appellate attorney’s duty beyond the
first-tier appellate judgment itself and is therefore of no help to Nichols here.
Nichols also attempts to rely on White v. Shotten, 201 F.3d 743, 752-53 (6th Cir. 2000), a case
in which we held that Ohio’s Appellate Rule 26(B) application for re-opening an appeal on the basis of
ineffective assistance of appellate counsel is part of a criminal defendant’s direct appeal and opined that
the defendant “must be accorded effective assistance of counsel throughout all phases of that [first-tier
appellate] stage of the criminal proceedings.” This case is inapposite, as it concerns state court first-tier
appellate review, but more importantly, it was expressly and unequivocally overruled by Lopez v. Wilson,
426 F.3d 339, 341 (6th Cir. 2005) (en banc). Nichols’s reliance is misplaced.
No. 05-6452 Nichols v. United States Page 17

Therefore, Nichols cannot show any probability that a rehearing petition, without
something more, would have delayed the date of finality of his conviction for an
additional three months or more, until the Supreme Court issued its decision in Booker.

Nichols himself, the original panel, and Nichols’s en banc counsel have all taken
the position that Nichols’s situation is perfectly analogous to that of his former co-
defendant, Carlton Smith,8 albeit Smith did move for a rehearing on the basis of Blakely
and did petition the Supreme Court for certiorari. We denied Smith’s motion for
rehearing, which might well indicate that we would have denied Nichols’s equivalent
motion, had he filed one, but that is beside the point. The point is that although neither
Smith nor Nichols actually had a rehearing before this court, Smith still obtained the
relief he sought — by petitioning the Supreme Court for certiorari.

The filing of a motion for rehearing before this court is not a prerequisite to the
filing of a petition for certiorari, see Sup. Ct. R. 13(3); see also Schiavo ex rel. Schindler
v. Schiavo, 403 F.3d 1289, 1296 n.4 (11th Cir. 2005) (“A petition for rehearing or
suggestion for rehearing en banc is not, of course, required before a petition for certiorari
may be filed in the United States Supreme Court.”), and hence, the failure to file that
motion had no effect on Nichols’s ability to petition for certiorari. Counsel’s failure to
move for reconsideration or rehearing en banc did not prejudice Nichols. To the extent
that Nichols suffered prejudice, that prejudice was the result of his failing to petition for
certiorari, a failing he cannot attribute to counsel. Nichols cannot demonstrate
constitutionally ineffective assistance of counsel and his motion to vacate his sentence
must fail.

8
Nichols bases his theory of prejudice on the assumption that because co-defendant Smith was
successful on his direct appeal, Nichols necessarily would have been successful on his direct appeal as
well. But, we have elsewhere condemned such an approach, saying: “Contrary to [appellant]’s arguments,
the fact that his codefendant succeeded on a similar claim is not dispositive. . . . [S]uch an approach would
improperly turn on the type of hindsight discouraged by Strickland.” Range v. United States, 25 F.3d 1049
(table), 1994 WL 252643, at *4 (6th Cir. June 9, 1994).
No. 05-6452 Nichols v. United States Page 18

III.

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.
No. 05-6452 Nichols v. United States Page 19

________________

DISSENT
________________

KAREN NELSON MOORE, Circuit Judge, dissenting. In October 2002,
Petitioner-Appellant Thomas Albert Nichols received a sentence of 405 months of
imprisonment under the then-mandatory United States Sentencing Guidelines. Nichols’s
Guidelines range was enhanced based on facts found solely by the sentencing judge.
Even though, at the time of Nichols’s sentencing, the constitutionality of the Guidelines
had been called into serious question by a majority of the Justices in Apprendi v. New
Jersey, 530 U.S. 466 (2000), Nichols’s counsel made no Apprendi objection before the
sentencing court. Even though, while Nichols’s direct appeal was still pending, the
Supreme Court granted certiorari in Blakely v. Washington, 542 U.S. 296 (2004), to
determine whether Apprendi applied to determinate statutory sentencing schemes,
Nichols’s counsel failed to raise any Apprendi argument during Nichols’s appeal.
Finally, even though Nichols could have filed a timely petition for rehearing when the
Supreme Court decided Blakely, Nichols’s counsel failed to file either a petition for
rehearing in this court or a petition for certiorari. As a result of his counsel’s failure to
make any argument at any point that Nichols was sentenced in violation of the Sixth
Amendment, Nichols’s sentence became final before the Supreme Court held in United
States v. Booker, 543 U.S. 220 (2005), that increasing a defendant’s mandatory
Guidelines range based on judge-found facts violates the Sixth Amendment right to a
jury trial. The attorney for Nichols’s codefendant Carlton Smith, on the other hand, did
file a petition for rehearing and a petition for certiorari in light of Blakely, and Smith’s
sentence was reduced on remand.

Nichols now argues that, based on Apprendi, Blakely, and the Supreme Court’s
grant of certiorari in Booker, his counsel should have raised Sixth Amendment
challenges to the sentencing enhancements at various stages of his trial and appeal.
Because this case presents a unique combination of circumstances in which Apprendi,
followed by the Supreme Court’s grant of certiorari in Blakely, cast the constitutionality
No. 05-6452 Nichols v. United States Page 20

of the Guidelines into serious doubt, and where 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 Nichols’s sentence.

Claims of ineffective assistance of counsel are analyzed under the familiar
two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). “First, the
defendant must show that counsel’s performance was deficient.” Id. at 687. “Second,
the defendant must show that the deficient performance prejudiced the defense.” Id.

Nichols argues that his counsel performed deficiently by failing to argue either
at his sentencing or on appeal that the enhancements to his then-mandatory Guidelines
range violated the Sixth Amendment. To show that his counsel’s performance was
deficient, a defendant must show “that counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Id. “[T]he defendant must show that counsel’s representation fell below an objective
standard of reasonableness.” Id. at 688.

There is no question that, had Nichols been sentenced according to mandatory
Guidelines after Booker was decided, his claim would be meritorious. The district court
increased Nichols’s Guidelines range based on judge-found facts—for example, the
two-point enhancements for vulnerability of a victim and use of a child in the course of
the offense, both based solely on judge-found facts, increased Nichols’s Guidelines
range from between 262 and 327 months in prison to between 360 months and life in
prison. See U.S. Sentencing Guidelines Manual ch. 3, pt. A. (2001). The district court
applied as mandatory Nichols’s Guidelines range of 360 months to life in prison,
ultimately sentencing Nichols to 405 months in prison. Had Nichols been sentenced
after Booker was decided, it would be clear that the district court erred by sentencing
Nichols using a mandatory Guidelines range based on judge-found facts, and it would
be equally clear that Nichols’s counsel performed deficiently by not objecting to and
then appealing the district court’s sentencing determination.
No. 05-6452 Nichols v. United States Page 21

Of course, Nichols was not sentenced after Booker was decided; Nichols was
sentenced on October 11, 2002, over two years before the Supreme Court’s decision in
Booker. Usually, a later change in the law will not render an attorney’s earlier
performance deficient. “‘Only in a rare case’ will a court find ineffective assistance of
counsel based upon a trial attorney’s failure to make an objection that would have been
overruled under then-prevailing law.” Lucas v. O’Dea, 179 F.3d 412, 420 (6th Cir.
1999) (internal citation omitted). We have previously noted that one of those “rare
cases” can arise when counsel “fail[s] to raise an issue whose resolution is clearly
foreshadowed by existing decisions.” Lucas, 179 F.3d at 420. I believe that this case
presents another of those “rare cases.”

Beginning prior to Nichols’s sentencing and continuing throughout the pendency
of his appeal, a major shift was occurring in the Supreme Court’s sentencing
jurisprudence. First, in Apprendi v. New Jersey, the Supreme Court determined that
“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” 530 U.S. at 490. At the time, a number of commentators
suggested that the federal Sentencing Guidelines might not survive Apprendi. See, e.g.,
Susan N. Herman, Applying Apprendi to the Federal Sentencing Guidelines: You Say
You Want a Revolution?, 87 Iowa L. Rev. 615, 621-25 (2002); Jeffrey Standen, The End
of the Era of Sentencing Guidelines: Apprendi v. New Jersey, 87 Iowa L. Rev. 775,
796-97 (2002); Freya Russell, Casenote, Limiting the Use of Acquitted and Uncharged
Conduct at Sentencing: Apprendi v. New Jersey and Its Effect on the Relevant Conduct
Provision of the United States Sentencing Guidelines, 89 Cal. L. Rev. 1199, 1224-29
(2001); Note, The Unconstitutionality of Determinate Sentencing in Light of the Supreme
Court’s “Elements” Jurisprudence, 117 Harv. L. Rev. 1236, 1249-1254 (2004). More
important, a majority of the Justices themselves made clear that the federal Sentencing
Guidelines stood on uncertain ground in the wake of Apprendi; the four dissenting
Justices suggested that application of the majority’s reasoning in Apprendi would require
striking down the Guidelines, Apprendi, 530 U.S. at 544, 551-52 (O’Connor, J.,
No. 05-6452 Nichols v. United States Page 22

dissenting), and one concurring Justice suggested that he himself might apply Apprendi
to invalidate the Guidelines, id. at 523 n.11 (Thomas, J., concurring).

In October 2003, before oral argument in Nichols’s direct appeal, the Supreme
Court granted certiorari in Blakely v. Washington on the question of whether a fact
necessary for an upward departure from Washington’s statutory standard sentencing
range must be proved according to the procedures mandated by Apprendi, indicating to
all that the Supreme Court soon would consider whether the Sixth Amendment prohibits
the use of judge-found facts to increase a mandatory guidelines range. On June 24,
2004, while Nichols still could have filed a timely petition for rehearing before this
court, the Supreme Court answered this question in the affirmative in Blakely, holding
that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge
may impose solely on the basis of the facts reflected in the jury verdict or admitted by
the defendant.” 542 U.S. at 303 (citing Ring v. Arizona, 536 U.S. 584, 602 (2002)). The
next day, the New York Times ran a front-page article on the Blakely decision, noting that
“‘[t]here is nothing to suggest that the federal guidelines would get different treatment.’”
Linda Greenhouse, Justices, in Bitter 5-4 Split, Raise Doubts on Sentencing Guidelines,
N.Y. Times, June 25, 2004, at A1 (quoting Professor Stephen Bibas).

With the future state of the law so uncertain post-Apprendi, I believe that any
counsel whose performance satisfied an “objective standard of reasonableness,”
Strickland, 466 U.S. at 688, would have at least been cognizant of possible applications
of Apprendi to challenge the federal Sentencing Guidelines and the necessity of
preserving those challenges in case the Supreme Court struck down the Guidelines while
the defendant’s case was pending on direct review. The addition of multiple
enhancements to Nichols’s Guidelines range, including at least two—vulnerability of a
victim and use of a child in the course of the offense—indisputably based purely on
judge-found facts, provided the ideal circumstances for one such challenge.1

1
This provides a key distinction from the circumstances presented in United States v. Burgess,
142 F. App’x 232 (6th Cir.) (unpublished), cert. denied, 546 U.S. 919 (2005), in which we concluded that
an attorney did not perform deficiently by failing to challenge the district court’s use of a mandatory
Guidelines range when sentencing the defendant. Id. at 240-41. Burgess involved a defendant whose
Guidelines range was calculated solely on the basis of the crime to which he pleaded guilty and his prior
No. 05-6452 Nichols v. United States Page 23

Additionally, Nichols’s counsel did challenge Nichols’s Guidelines range on other
grounds, including a request for a downward departure. Under these circumstances, I
conclude that counsel performed deficiently by failing to raise an additional Sixth
Amendment challenge to the increases in Nichols’s Guidelines range.

For many of those same reasons, I believe that adequate counsel would have
preserved the Sixth Amendment challenge by raising it on appeal, particularly in light
of the Court’s grant of certiorari in Blakely. Counsel raised only one issue on appeal, a
challenge to the jury instructions. Thus, there was no danger that preserving the Sixth
Amendment challenge on appeal would require counsel to limit discussion of stronger
issues in order to satisfy briefing page limits or would otherwise distract from the other
issues raised on appeal, and I can identify no other strategic reason why counsel would
refuse to preserve the Sixth Amendment challenge on appeal. See McFarland v. Yukins,
356 F.3d 688, 711 (6th Cir. 2004). Although “counsel has no obligation to raise every
possible claim” on appeal, id. at 710, I conclude that, given the uncertain state of the
law, the significant potential benefit to Nichols, and the insignificant costs—strategic or
otherwise—required to preserve the claim, adequate counsel would have preserved the
Sixth Amendment challenge on appeal, cf. United States v. Pineda-Arrellano, 492 F.3d
624, 625 (5th Cir. 2007) (noting that “hundreds, if not thousands” of criminal defendants
in the Fifth Circuit have argued on appeal that, under the reasoning of Apprendi, prior
felony convictions should be treated as elements of certain offenses, not as sentencing
enhancements, in order to preserve the issue in case the Supreme Court overrules
Almendarez-Torres v. United States, 523 U.S. 224 (1998), a pre-Apprendi decision to
the contrary). Moreover, at the time that Blakely was decided, Nichols still had one day
to file a timely petition for rehearing in this court, which would have been a simple task
had his counsel been keeping abreast of cases pending before the Supreme Court.

convictions, with no additional enhancements. Id. at 240. As we noted in Burgess, neither Apprendi nor
any other pre-Booker case provided any reason to suspect that the district court erred by sentencing the
defendant within the Guidelines range under those circumstances, even though the defendant ultimately
might have been entitled to resentencing pursuant to the remedial holding of Booker and our subsequent
interpretation of that holding in United States v. Barnett, 398 F.3d 516 (6th Cir.), cert. dismissed, 545 U.S.
1163 (2005). Burgess, 142 F. App’x at 240-41.
No. 05-6452 Nichols v. United States Page 24

To have raised an Apprendi-type argument either at sentencing or on appeal,
Nichols’s counsel need not have been clairvoyant or predicted the precise remedy that
the Supreme Court would craft in Booker. Anyone who surveyed the legal landscape
from 2002 to 2004 would have seen that the tide had shifted on determinate sentencing
guidelines and need only have applied the Supreme Court precedent established in
Apprendi to raise an argument that the enhancement of Nichols’s Guidelines range by
judge-found facts presented Sixth Amendment problems. Because Nichols’s counsel did
not do so, his performance fell below the “objective standard of reasonableness” required
by Strickland. 466 U.S. at 688.

To establish prejudice, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding”—in this case, the result of Nichols’s sentencing—“would have been
different. A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Id. at 694. As we have recognized previously, it often will be difficult
for a defendant to establish on collateral review that he was prejudiced by counsel’s
failure to challenge the constitutionality of the Guidelines, as he must demonstrate that
he had or would have had a direct appeal pending on January 12, 2005, when Booker
was decided. See Dunham v. United States, 486 F.3d 931, 934 (6th Cir. 2007). But here,
there were several ways in which Nichols’s appeal would have remained open when
Booker was decided.

The majority concludes that Nichols is not entitled to relief because he had no
right to effective assistance of counsel in petitioning the Supreme Court for certiorari,
precluding Nichols from arguing that he was prejudiced by his failure to file a petition
for certiorari. Because Smith, Nichols’s codefendant, obtained the advantage of Booker
after Smith’s counsel filed a petition for certiorari, and given the injustice apparent
where Nichols and his codefendant obtained vastly different results due to the disparate
performances of their respective counsels, it is easy to focus on Nichols’s counsel’s
failure to attempt this avenue of relief. The question is not, however, whether counsel
was ineffective in failing to petition for certiorari, but whether Nichols’s counsel’s
No. 05-6452 Nichols v. United States Page 25

ineffective performance in not raising a Sixth Amendment issue at any point in the
proceedings prejudiced Nichols’s later ability to reap the benefit of Booker. The
majority’s focus on counsel’s failure to petition for certiorari ignores the fact that there
were several routes, aside from the one taken by Smith, through which Nichols could
have had an appeal pending, either before this court or before the Supreme Court. For
example, had counsel raised a Sixth Amendment argument either at sentencing or on
direct appeal, Nichols likely would have known to raise this argument at a later date.
Further, the majority’s suggestion that United States v. Koch, 383 F.3d 436 (6th Cir.
2004) (en banc), vacated, 544 U.S. 995 (2005), made it clear that Blakely did not
invalidate the Guidelines ignores the fact that Koch came down well after Nichols’s
direct appeal was decided. Prior to Koch, a panel of this court did apply Blakely to the
Guidelines, showing that it is reasonably likely that a panel of this court would have
applied Blakely to invalidate Nichols’s sentence. See United States v. Montgomery, No.
03-5256, 2004 WL 1562904 (6th Cir. July 14, 2004), reh’g en banc granted and opinion
vacated (6th Cir. July 19, 2004). Given these and other possible outcomes, there is a
reasonable probability that Nichols’s case would have been in a different procedural
posture such that his appeal would have been open on January 12, 2005.

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.