Campbell v. U.S., No. 02-2387 (1st Cir. August, 25, 2004)

In Campbell v. United States, slip op. No. 02-2387 (1st Cir. August 25, 2004) (not for publication), the Court, in denying a Certificate of Appealability to one who had his 2255 motion denied, stated, in part, as follows:

Finally, Campbell is not entitled to a COA to pursue the claim that counsel was ineffective for failing to anticipate the Court's decision in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531 (2004). On appeal, this court held that there was no Apprendi violation because Campbell was sentenced below the statutory maximum of 240 months. See 21 U.S.C. § 841(b)(1)(C). In his § 2255 motion, Campbell argued that appellate counsel should have argued that Apprendi was violated because Campbell's base offense level under the sentencing guidelines was enhanced based on the drug quantity. He has now filed an addendum to his COA memorandum in which he asks that Blakely "be applied in evaluating the arguments which he has placed before the court." Notice of Supplemental Authority, p. 1.

This case does not require us to decide whether Blakely applies to the federal sentencing guidelines or whether it applies retroactively to cases on collateral review. Because Campbell stipulated at trial to a drug quantity that corresponded to the base offense level used to calculate his sentence, he cannot show that he was prejudiced by the failure to charge the specific drug quantity in his indictment. See United States v. Riggs, 347 F.3d 17, 20 (1st Cir. 2003), cert. denied, __ U.S.__, 124 S.Ct. 1095 (2004). Moreover, counsel's failure to anticipate Blakely would not constitute unreasonable performance under Strickland because "First Circuit jurisprudence on this point ha[d] been well established." Campbell, 268 F.3d at 7, n.7. Therefore, reasonable jurists could not find that he has made a substantial showing that the Blakely issue would have been clearly stronger than the issues raised by appellate counsel. [1]

Campbell's request to proceed IFP is granted, but his request for a COA is denied. The appeal is terminated.

[1] To the extent that petitioner is seeking to assert a new claim based on Blakely (rather than to provide supplemental support for his ineffective assistance claim), he would be required to present that claim first in the district court. Certification to file a second or successive petition could not be granted unless the Supreme Court had held that Blakely applied retroactively to cases on collateral review. 28 U.S.C. § 2255.

While this is an unpublished opinion, and denied appellant the relief he sought, it is notable that the Court never states Blakely does not apply to the federal sentencing guidelines. Instead, it talks about appellant having to await for the Supreme Court to hold that Blakely applied retroactively to cases on collateral review, and not even if Blakely is first held to apply to the federal sentencing guidelines.