FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 January 9, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-13851

Non-Argument Calendar

________________________

D. C. Docket Nos. 

04-08015-CV-4-CLS-TMP & 01-00168-CR-CLS

ALTON RUMLEY DUBOSE, JR., 

Petitioner-Appellant, 

versus 

UNITED STATES OF AMERICA, 

Respondent-Appellee. 

________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(January 9, 2007)

Before BLACK, MARCUS and FAY, Circuit Judges.

PER CURIAM:
 Based on the COA’s limitation to counsel’s actions on the date of sentencing, the COA 1

does not encompass the issue of appellate counsel’s effectiveness. Because appellate review is

limited to the issues specified in the COA, we do not consider Dubose’s claim of ineffective

assistance of appellate counsel. See Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir.

1998).

2

Alton Rumley Dubose, Jr., appeals the district court’s denial of his

counseled motion to vacate, under 28 U.S.C. § 2255. Dubose filed his motion after

the effective date of the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), Pub. L. No. 104-32, 110 Stat 1214 (1996). Therefore, the provisions

of the AEDPA govern this appeal. The district court granted a certificate of

appealability (“COA”) with respect to the following issue:

Whether, on November 29, 2001 (the date of movant’s sentencing), it

was ineffective assistance of counsel, in violation of the Sixth

Amendment, for movant’s attorney to fail to object on the basis of

Apprendi v. New Jersey, 530 U.S. 466 (2000), to findings of fact

being made by the sentencing court (rather than a jury) in connection

with sentencing under the United States Sentencing Guidelines.

On appeal, Dubose argues that his trial and appellate counsel provided ineffective

assistance by failing to raise such an argument. For the reasons set forth more 1

fully below, we affirm. 

We review an ineffective assistance of counsel claim de novo. Chandler v.

United States, 218 F.3d 1305, 1312 (11th Cir. 2000) (en banc). In order to prove

ineffective assistance of counsel, a defendant must show that counsel’s

performance was deficient and that he was prejudiced as a result. Strickland v.
3

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). 

“For performance to be deficient, it must be established that, in light of all the

circumstances, counsel’s performance was outside the wide range of professional

competence.” Putman v. Head, 268 F.3d 1223, 1243 (11th Cir. 2001). “We ask

only whether some reasonable lawyer at the trial could have acted, in the

circumstances, as defense counsel acted . . . .” White v. Singletary, 972 F.2d 1218,

1220 (11th Cir. 1992). This inquiry is objective and we “must evaluate the

reasonableness of counsel’s performance ‘from counsel’s perspective at the time.’”

Chandler, 218 F.3d at 1315-16 (citation omitted). “[B]ecause counsel’s conduct is

presumed reasonable, for a petitioner to show that the conduct was unreasonable, a

petitioner must establish that no competent counsel would have taken the action

that his counsel did take.” Id. at 1315.

The premise of Dubose’s arguments on appeal is that counsel provides

constitutionally ineffective assistance when he or she fails to reasonably anticipate

and argue favorable trends in constitutional law, even if those trends are not the

law at that time. He contends that, in these circumstances, the standard for whether

there is cause for procedural default set forth in Engle v. Issac, 456 U.S. 107, 134,

120 S.Ct. 1558, 1575, 71 L.Ed.2d 783 (1982) (“Where the basis of a constitutional

claim is available, and other defense counsel have perceived and litigated that
4

claim, the demands of comity and finality counsel against labeling alleged

unawareness of the objection as cause for a procedural default.”), should also

govern the determination of deficient performance in an ineffective assistance

claim.

We have previously rejected the argument that, if there does not exist cause

for the failure to raise a claim in the context of procedural default, such a failure

constitutes ineffective assistance of counsel. Pitts v. Cook, 923 F.2d 1568,

1571-74 (11th Cir. 1991). “The proper measure of attorney performance remains

simply reasonableness under prevailing professional norms.” Strickland, 466 U.S.

at 688, 104 S.Ct. at 2065. “We have held many times that ‘[r]easonably effective

representation cannot and does not include a requirement to make arguments based

on predictions of how the law may develop.’” Spaziano v. Singletary, 36 F.3d

1028, 1039 (11th Cir. 1994) (citations omitted) (alteration in original). “To be

effective within the bounds set by Strickland, an attorney need not anticipate

changes in the law. Similarly, counsel need not pursue constitutional claims which

he reasonably believes to be of questionable merit.” Jackson v. Herring, 42 F.3d

1350, 1359 (11th Cir. 1995) (citations omitted). 

At the time of Dubose’s sentencing on November 29, 2001, our controlling

precedent held that Apprendi did not apply to the Sentencing Guidelines, but was
5

only applicable to facts that increase a sentence above the applicable statutory

maximum. United States v. Sanchez, 269 F.3d 1250, 1262-63 (11th Cir. 2001) (en

banc), abrogation recognized by United States v. Duncan, 400 F.3d 1297 (11th

Cir.), cert. denied, 126 S.Ct. 432 (2005). We hold that Dubose’s trial counsel’s

failure to advance an argument premised on the ground that the Supreme Court

would apply Apprendi to the Guidelines does not constitute ineffective assistance

of counsel. Spaziano, 36 F.3d at 1039; Jackson, 42 F.3d at 1359.

In light of the foregoing, the district court’s denial of Dubose’s § 2255

motion is 

AFFIRMED.