Appeal from the United States District Court for the Southern District of Illinois. No. 06 C 136-William D. Stiehl, Judge.
The opinion of the court was delivered by: Ripple, Circuit Judge
Before RIPPLE, EVANS and WILLIAMS, Circuit Judges.
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 guidelines are advisory, not mandatory). In this post-conviction 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 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.
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' imprisonment, the district court stated that "under the law, I believe I am required to impose a certain, at least minimum 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 sentencing? 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 sentence 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 ineffective 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 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).*fn1
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 sentencing, 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.
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 ineffective, Mr. Stallings would have to prove that (1) counsel'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 ...