Appeal from the United States District Court for the Southern District of Illinois. No. 04 C 730-William D. Stiehl, Judge.
The opinion of the court was delivered by: Evans, Circuit Judge.
ARGUED SEPTEMBER 26, 2007
Before MANION, EVANS, and SYKES, Circuit Judges.
Alonzo (who one of the key witnesses in this case called "Lo") Suggs was found guilty after a 2001 jury trial of conspiracy to possess cocaine with intent to distribute. He was also convicted on an unrelated charge of being a felon in possession of a firearm. Suggs was sentenced to a term of 300 months on the cocaine conviction and a concurrent term of 120 months on the firearm count.
Suggs (and a co-defendant, Joyce Ogle, who was also convicted) took a direct appeal, arguing that the district court committed plain error in allowing the government to present evidence of multiple conspiracies, one of which was not charged in the indictment. We rejected his appeal (as well as Ogle's) and affirmed the judgment of the district court on February 14, 2003. United States v. Suggs, 59 Fed. Appx. 818 (7th Cir. 2003).
Subsequent to our 2003 order, Suggs returned to the district court and, with new counsel*fn1 at his side, filed a § 2255 petition alleging that his prior counsel rendered ineffective assistance by failing to raise two arguments on appeal that had a much greater chance of success than the one argument which was actually advanced. The district court denied the petition, and Suggs is now back here a second time seeking a reversal of that order.
The facts underlying Suggs' conviction were noted in our 2003 order, and they will not be repeated here. As relevant for our purposes, we step back a moment to July of 2002 when prior counsel sent a six-page letter to Suggs outlining his strategy for appeal. In the letter, counsel identified three district court errors that he said had "great merit" and would be worthy of airing on appeal. According to counsel, the district court mistakenly:
(1) admitted evidence of an uncharged conspiracy involving Ogle and Suggs; (2) admitted Ogle's written statement in violation of Suggs' right to confrontation; and (3) enhanced Suggs' sentence based on an improper adjustment to his guideline range.
Later, however, in Suggs' appellate brief, his attorney inexplicably raised only the uncharged conspiracy issue. As we said, we rejected this argument and affirmed Suggs' conviction and sentence in 2003.
Suggs now argues that his prior attorney's failure to raise the Confrontation Clause and sentencing issues deprived him of his Sixth Amendment right to effective assistance of appellate counsel. In evaluating the district court's decision, we review fact findings for clear error and issues of law de novo. Galbraith v. United States, 313 F.3d 1001, 1006 (7th Cir. 2002).
We employ the familiar two-pronged test outlined by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), to evaluate the effectiveness of both trial and appellate counsel. Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1985). To establish ineffectiveness, Suggs must demonstrate that his appellate counsel's performance was deficient and that this deficiency prejudiced him. Gray, 800 F.2d at 646.
Suggs' ineffectiveness claim rests on his belief that his attorney failed to raise two viable arguments on appeal. To evaluate Suggs' claim, we must first analyze the trial court record to determine whether his appellate attorney, in fact, ignored "significant and obvious" issues. Id. We must then compare each neglected issue to, in this case, the issue actually raised on appeal. Id.
Only if an ignored issue is "clearly stronger" than the arguments raised on appeal will the attorney's performance be considered constitutionally deficient (thereby satisfying the first prong of the Strickland test). To establish prejudice-the other component of the Strickland test-Suggs must show that there is a reasonable probability that, but for the deficient performance of his attorney, the result of the appeal would have been different. Strickland, 466 U.S. at 694.
Suggs argues that his attorney should have appealed the district court's decision to admit Ogle's written statement and her telephone conversations with John Ellebracht. Ellebracht, as we noted in 2003, was arrested at a St. Louis airport while carrying a suitcase loaded with over 7 kilos of cocaine. After his arrest, Ellebracht quickly agreed to cooperate in an investigation of Ogle and "Lo." Because these statements implicated Suggs-her co-defendant-at a joint trial during which Ogle did not testify, the introduction of this evidence, Suggs argues, violated his right to confrontation. See Bruton v. United States, 391 U.S. 123, 125-26 (1968). While we agree that this Bruton issue may have been (1) significant ...