Remarkable Apprendi ineffectiveness ruling from the Sixth Circuit

After seeing this ruling earlier today, I wanted to read it closely to be sure it was as big a deal as it seems.  And, upon further review, I am sure that the Sixth Circuit’s work today in Nichols v. US, No. 05-6452 (6th Cir. Aug. 16, 2007) (available here), is huge and perhaps gets intriguingly close to giving Booker retroactive potential for some federal defendants.  Technically, Nichols concerns an ineffective assistance claim brought in a 2255 petition.  But federal practitioners will understand from these excerpts what Nichols could mean:

Petitioner-Appellant Thomas Albert Nichols (“Nichols”) appeals from the district court’s judgment denying his motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Nichols argues that his counsel was constitutionally ineffective for failing to challenge enhancements to his Guidelines range.  Nichols argues that, based on Apprendi v. New Jersey, 530 U.S. 466 (2000), his counsel should have raised a Sixth Amendment challenge to the sentencing enhancements, even though Nichols was sentenced in 2002, more than two years before the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005). Because Apprendi cast the constitutionality of the Federal Sentencing Guidelines into considerable doubt, and because the enhancements to Nichols’s Guidelines range directly presented circumstances that were called into question by Apprendi, we conclude that Nichols’s counsel was constitutionally ineffective for failing to preserve a Sixth Amendment challenge to his sentence, and we therefore REVERSE the judgment of the district court, VACATE Nichols’s sentence, and REMAND the case for resentencing….

We recognize that, under our decision today, the performance of many attorneys who represented criminal defendants after Apprendi but before Blakely and Booker will be deemed constitutionally deficient. The question before us, however, is not what some or most attorneys actually did, but whether the performance of Nichols’s counsel “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. Although we recognize that common practices may provide evidence of the objective standard by which we should measure the performance of individual attorneys, common practices can never be determinative lest we freeze our expectations of counsel at one moment in time, never to improve or change in response to developments in, for example, education, technology, or the law itself.  In this case, we conclude that the performance of Nichols’s counsel was constitutionally deficient for failing to take into account and respond to the significant changes in the law effected by Apprendi.

For a range of practical and procedural reasons too complicated to explain briefly, the actual impact of Nichols may not be that huge for the hundreds of thousands of defendants sentenced between Apprendi and Booker.  Nevertheless, the import of Nichols is still huge (and likely will lead to further appeals from the government).