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En banc Sixth Circuit rejects ineffectiveness claim for failing to preserve Sixth Amendment claims pre-Booker

By Douglas A. Berman

Ruling en banc, the Sixth Circuit today in Nichols v. US, No. 05-6452 (6th Cir. April 29, 2009) (available here), reversed course after a panel had previously found defense counsel ineffective for failing to preserve Sixth Amendment claims.  Here is how the majority opinion in the new Nichols ruling concludes: 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...continue to full post

Full post as published by Sentencing Law and Policy on April 29, 2009 (boomark / email).