Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-21-2009
Brennan v. USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2988
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"Brennan v. USA" (2009). 2009 Decisions. Paper 1514.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2988
_____________
ROBERT E. BRENNAN,
Appellant
v.
UNITED STATES OF AMERICA
On Appeal from the United States District Court
for the District of New Jersey
District Court No. 04-cv-04719
District Judge: The Honorable Garrett E. Brown, Jr.
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
April 17, 2009
Before: MCKEE, SMITH, and VAN ANTWERPEN, Circuit Judges
(Filed: April 21, 2009)
OPINION
SMITH, Circuit Judge.
Appellant Robert E. Brennan petitioned the District Court for habeas relief under
28 U.S.C. § 2255 claiming that his trial and appellate counsels were ineffective. The
District Court denied his petition. We granted Brennan’s request for a certificate of
1
appealability under 28 U.S.C. § 2253(c)(1). Since Brennan has failed to demonstrate that
he was prejudiced by his counsels’ allegedly deficient performance, we will affirm the
District Court’s decision.1
To prevail on a claim of ineffective assistance of counsel, Brennan must
demonstrate “(1) that his counsel’s performance was deficient; and (2) that he was
prejudiced by it.” United States v. Lilly, 536 F.3d 190, 195 (3d Cir. 2008) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). We need not decide whether
Brennan’s counsels were deficient if it is clear that Brennan has not shown any prejudice.
See Strickland, 466 U.S. at 697 ( “If it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice, which we expect will often be so, that course
should be followed.”).
Here, Brennan claims that his trial and appellate counsels were ineffective because
they failed to invoke Apprendi v. New Jersey, 530 U.S. 466 (2000), at his sentencing and
direct appeal despite his requests that they do so. Brennan, however, does not argue that
an Apprendi challenge would have been successful before the trial or appellate courts.
Instead, Brennan asserts that “[h]ad the Apprendi issue been preserved by Brennan’s trial
and appellate counsel (as he requested), it is likely that the Supreme Court would have
considered the issue just as the Court did in [Blakely v. Washington, 542 U.S. 296 (2004)]
1
The District Court had jurisdiction under 28 U.S.C. § 2255, and we have
jurisdiction under 28 U.S.C. § 2253. Since the District Court did not hold an evidentiary
hearing, we review its legal conclusions de novo. Outten v. Kearney, 464 F.3d 401, 413
(3d Cir. 2006).
2
. . . .” (Br. for Appellant at 20.) Therefore, to show prejudice, Brennan must
demonstrate a reasonable probability that, but for his counsels’ deficient performances,
the Supreme Court would have granted his petition for certiorari. See Strickland, 466
U.S. at 694 (“The defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”).
We recognize that to show prejudice, Brennan “need not show that counsel’s
deficient performance more likely than not altered the outcome in the case—rather, he
must show only a probability sufficient to undermine confidence in the outcome.”
Thomas v. Varner, 428 F.3d 491, 502 (3d Cir. 2005) (internal quotations and citations
omitted). We also acknowledge that “[t]his standard is not a stringent one.” Id.
Nonetheless, Brennan bears the burden of demonstrating prejudice. Fountain v. Kyler,
420 F.3d 267, 275 (3d Cir. 2005). In our view, he has come up short.
According to Brennan, the fact that the Court granted certiorari in Blakely two
weeks after it denied his petition demonstrates a likelihood that the Court would have
granted his petition had he preserved the Apprendi issue. We disagree. While Blakely
concerned the post-Apprendi constitutionality of a state court’s sentencing procedure, see
542 U.S. at 299–301, Brennan was subject to the federal sentencing regime. This is a
significant difference. At the time it granted certiorari in Blakely, the Court exhibited no
signs that it was also ready to consider Apprendi’s effect on federal sentencing. Indeed,
Blakely explicitly disclaimed any applicability to the Federal Sentencing Guidelines. See
542 U.S. at 305 n.9 (“The Federal Guidelines are not before us, and we express no
3
opinion on them.”). It was not until the following term that the Court demonstrated a
willingness to confront the Apprendi issue that Brennan claims he would have raised had
it been preserved. See United States v. Booker, 543 U.S. 220, 229 (2005) (noting that in
the Government’s petition for certiorari, it “ask[ed] us to determine whether our Apprendi
line of cases applies to the Sentencing Guidelines, and if so, what portions of the
Guidelines remain in effect”).
“[A] writ of certiorari is granted or refused in the exercise of a sound discretion.”
Phila. & Reading Coal & Iron Co. v. Gilbert, 245 U.S. 162, 165 (1917). Its grant is a rare
event.2 Here, Brennan can only speculate that, had he preserved the Apprendi issue, his
direct appeal would have been among those select few. This is not enough to show
prejudice. See Baker v. Barbo, 177 F.3d 149, 154 (3d Cir. 1999) (holding that “totally
speculative” arguments as to prejudice did not show a “a probability sufficient to
undermine confidence in the outcome”). Therefore, we will affirm the District Court’s
decision to deny Brennan’s petition for habeas relief.3
2
According to one publication, those who petitioned the Supreme Court for
certiorari in the same year that Brennan did were successful a mere 1.1% of the time: in
the 2003 term, the Court granted only 87 of the 7,784 petitions that it considered. See The
Supreme Court, 2003 Term: The Statistics, 118 Harv. L. Rev. 497, 504 (2004).
3
We also reject Brennan’s claim that the District Court abused its discretion in
declining to grant an evidentiary hearing because the motions, files, and records of the
case conclusively show that Brennan is not entitled to relief. See Lilly, 536 F.3d at 195.
4