Stallings v. U.S. (CA7)

Stallings v. U.S., No. 06-3914 (CA7) — Yesterday the Seventh Circuit granted a habeas petitioner the functional equivalent of a Paladino remand on an appeal from the denial of a 2255 motion in the district court.  The petitioner had been convicted of possession of a firearm by a convicted felon.  He was sentenced in November 2004, after Blakely v. Washington, 542 U.S. 296 (2004), was decided, to 188 months in prison.  Given his criminal history, Stallings faced a 180-month mandatory minimum sentence.  The applicable Guidelines range was 188 to 235 months.  The sentencing judge explained, “I believe I am required to impose a certain, at least minimum sentence….  I think the sentence is appropriate.  If it turns out I’m wrong, we’ll do it again.”

Stallings filed a direct appeal, and the briefing took place after the Supreme Court decided United States v. Booker, 543 U.S. 220 (2005), and the Seventh Circuit decided its post-Booker cases Paladino and Schlifer.  Appellate counsel did not raise a Booker claim, and the Seventh Circuit affirmed the conviction and sentence in December 2005.

In February 2006, Stallings filed a 2255 motion, raising a claim of ineffective assistance of counsel on direct appeal regarding appellate counsel’s failure to raise a Booker claim.  The district court denied the motion, ruling that Stallings was “foreclosed from raising” a Booker claim in a 2255 motion.  The Seventh Circuit certified his IAC claim for appeal, and ordered the parties to discuss whether counsel’s failure to ask for a limited remand under Paladino constituted ineffective assistance.

The court first held that merely mentioning Blakely at a sentencing hearing that took place during the interregnum in the summer and fall of 2004 did not suffice to preserve a full Booker claim, so as to entitle a defendant to harmless-error review under the Schlifer decision.  Trial counsel merely asked the district court about the governing law in the wake of Blakely; he did not “offer a view of the law or suggest that Mr. Stallings had been sentenced improperly,” and thus did not preserve any Booker error.

The court then ruled that appellate counsel performed deficiently by failing to ask for a Paladino remand.  “Had Mr. Stallings asked for a Paladino remand on direct appeal, we would have granted it; the sentencing judge’s cryptic comment about having imposed an ‘appropriate’ sentence is not enough from which to conclude that the district court would not have considered a lower sentence had it understood the advisory nature of the guidelines.”  The Paladino approach required the district court to assess whether the failure to appreciate the advisory nature of the Guidelines resulted in a different sentence.  Because the answer to this question was not evident from the record, the court could not determine whether appellate counsel’s deficient performance was prejudicial.  The Seventh Circuit thus remanded the case for the district court to answer the Paladino question.