Is It Ineffective for an Appeal Lawyer to Miss a Coming Change in the Law?

It can be. Lawyers usually do not have to predict changes in the law, but when a change is "clearly foreshadowed," failing to raise it can be ineffective assistance of counsel. The Sixth Circuit held this on August 20, 2020, in Chase v. MaCauley, 971 F.3d 582 (6th Cir. 2020) (No. 19-1202).

The Michigan sentencing issue in Freddie Chase's case

Freddie Chase was sentenced in Michigan state court. At the time, Michigan judges could not depart from the guideline range without "a substantial and compelling reason." Mich. Comp. Laws § 769.34(3). The range was based on facts the judge found, not the jury.

Days after Chase was sentenced, the U.S. Supreme Court decided Alleyne v. United States, 570 U.S. 99 (2013). It held that facts that raise a mandatory minimum sentence must be found by a jury. Later, the Michigan Supreme Court relied on Alleyne to strike down Michigan's mandatory guideline scheme. People v. Lockridge, 870 N.W.2d 502 (Mich. 2015).

What Chase's appellate lawyer missed

Chase's case was still on direct appeal when Alleyne came out, and the issue was gaining momentum in the Michigan courts. But his appellate lawyer never raised an Alleyne claim and raised a weaker issue instead.

Chase later claimed ineffective assistance of counsel. The state courts denied relief. He then filed a federal habeas petition under 28 U.S.C. § 2254. The district court denied it, saying the issue "would not have been obvious" to his lawyer.

Why the Sixth Circuit found the lawyer ineffective

The Sixth Circuit disagreed. "It is hard to see how the decision to omit the Alleyne claim in favor of raising an obviously weaker claim was a reasonable decision," the court said.

While Chase's appeal was pending, another Michigan appeals case had split the judges. The dissenters "clearly and forcefully detailed why Alleyne rendered Michigan's sentencing scheme unconstitutional." Counsel would have been aware of this controversial case, the court said, and a competent lawyer would have seen the change coming.

On prejudice, Chase did not have to show he would get a lower sentence. He only had to show a reasonable probability that raising the issue would have won him a new sentencing hearing.

Getting past the AEDPA hurdle

Federal habeas law, mainly the Antiterrorism and Effective Death Penalty Act (AEDPA), makes relief hard to get by limiting the reach of federal courts in habeas cases. A federal court usually must defer to a state court's ruling unless it conflicts with or unreasonably applies "clearly established" Supreme Court law. 28 U.S.C. § 2254(d).

Here, the court found the state court decisions were "contrary to clearly established federal law." They could not be squared with Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court case that sets the test for ineffective assistance. So it granted habeas relief.

What this means for federal prisoners

This was a state case, but the same idea can apply to federal prisoners in a 2255 motion. If your appellate lawyer skipped a strong new issue that was plainly on the way, that may be ineffective assistance.

To check, gather your appellate briefs, the court of appeals' decision, and your judgment, and compare the issues raised with the law at the time. Keep the clock in mind: a 2255 motion generally must be filed within one year after the conviction becomes final, under 28 U.S.C. § 2255(f). For help with a 2255 motion, see 2255motion.com.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.