by Dale Chappell

The U.S. Court of Appeals for the Sixth Circuit held on August 20, 2020, that appellate counsel’s failure to raise a “clearly foreshadowed” change in decisional law that would’ve led to a likely change in the outcome was ineffective assistance of counsel (“IAC”) sufficient to excuse procedural default and allow habeas corpus relief.

Freddie Chase was convicted and sentenced in a Michigan state court in 2013 to a mandatory term of imprisonment based on facts found not by a jury (or admitted by him) but by his sentencing judge. Under state law at the time, a judge was required to impose a longer sentence under the Michigan sentencing guidelines and could not depart from that range absent “a substantial and compelling reason.” Mich. Comp. Laws § 769.34(3).

Three days after Chase’s sentencing, the U.S. Supreme Court held in Alleyne v. United States, 570 U.S. 99 (2013), that a law requiring a mandatory minimum sentence based on judge-found facts violates the U.S. Constitution. Because Chase’s sentence was on direct appeal when Alleyne was decided, the new rule applied retroactively to his case. Griffith v. Kentucky, 479 U.S. 314 (1987).

But Chase’s appellate lawyer never raised an Alleyne issue on appeal. In fact, he didn’t raise anything except a juror-instruction claim. To be fair, the Michigan Court of Appeals had rejected in other cases that Alleyne rendered Michigan’s sentencing scheme to be unconstitutional, and had Chase’s lawyers raised it on appeal, it would have been denied under existing law.

That decision, though, was roundly criticized by a later Michigan Court of Appeals decision, and numerous challenges to Michigan’s sentencing guidelines were filed citing Alleyne. Still, Chase’s lawyer never raised the issue, even after the Michigan Supreme Court granted leave in a case that would eventually overturn that initial Michigan Court of Appeals ruling on Alleyne. As a result, numerous defendants challenged Michigan’s sentencing scheme under Alleyne — except Chase. His direct appeal was denied as the Alleyne debate was raging in the Michigan Supreme Court.

Months later, the Michigan Supreme Court decided People v. Lockridge, 870 N.W.2d 502 (Mich. 2015), overturning the Michigan Court of Appeals decision and holding that Alleyne indeed rendered the state’s mandatory sentencing guidelines in question unconstitutional. Chase then moved for postconviction relief in state court, claiming that his appellate lawyer was ineffective for failing to raise the Alleyne issue on direct appeal. This motion was denied. The court ruled that Chase was procedurally barred from raising the claim because he didn’t raise it on direct appeal and couldn’t show “good cause and actual prejudice” to surmount that bar. His appeals of that denial were summarily denied.

Chase then filed a federal habeas corpus petition under 28 U.S.C. § 2254 in the U.S. District Court for the Eastern District of Michigan, raising the same claim. This petition was denied; the court concluded that the Alleyne claim “would not have been obvious to appellate counsel at the time he prepared [Chase’s] direct appeal.”

On appeal to the Sixth Circuit (the fifth court to hear Chase’s claim), the Court appointed counsel and granted a certificate of appealability on whether Chase’s lawyer was ineffective to excuse the procedural default.

IAC can excuse procedural default if a habeas petitioner can show cause and prejudice for failing to raise the claim on direct appeal. Edwards v. Carpenter, 529 U.S. 446 (2000). The two-prong IAC standard under Strickland v. Washington, 466 U.S. 668 (1984), is the measuring stick for such claims: (1) “the defendant must show that counsel’s performance was deficient” and (2) “that the deficient performance prejudiced the defense.”

While a lawyer isn’t required to “predict” a change in the law, “an attorney can be found deficient if she fails to raise a claim whose merit is clearly foreshadowed at the time,” the Court reiterated. “It is hard to see how the decision to omit an Alleyne claim in favor of raising an obviously weaker claim was a reasonable decision,” the Court explained.

The Court pointed to a divided Michigan Court of Appeals panel in People v.Lockridge, 849 N.W.2d 388 (Mich. Ct. App. 2014), which led the Michigan Supreme Court to overturn the initial Michigan Court of Appeals decision upholding the state’s sentencing scheme as constitutional after Alleyne. The two concurring opinions in the Lockridge Court of Appeals decision “clearly and forcefully detailed in why Alleyne rendered Michigan’s sentencing scheme unconstitutional,” the Court said. Chase’s appellate counsel should have been aware of this controversy at the appellate court and was therefore deficient, the Court concluded.

The Court then found that counsel’s deficient performance prejudiced Chase. The showing here requires a “reasonable probability that, but for counsel’s defective performance, [Chase] would have prevailed on appeal.” He didn’t need to show he would have received a different sentence but only “that had appellate counsel raised the Alleyne issue on appeal, there is a reasonable probability that Chase would have received a new sentencing proceeding,” the Court said.

“If Chase’s attorney had included an Alleyne claim in his direct appeal, Chase would have received relief from the Michigan Supreme Court — just like the many other defendants who, like Chase, filed applications for leave to appeal to Michigan’s highest court.” In light of Alleyne and the Michigan Supreme Court’s subsequent decision in Lockridge, “Chase’s mandatory minimum sentence would be contrary to clearly established federal law” to allow federal habeas relief.

Accordingly, the Court reversed the denial of habeas relief and remanded to the district court with instructions to conditionally grant relief and “remand to the state sentencing court for sentencing proceedings consistent with this opinion and the United States Constitution.” See: Chase v. Macauley, 971 F.3d 582 (6th Cir. 2020). 

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