In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-3914

BRETT A. STALLINGS,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 06 C 136—William D. Stiehl, Judge.

____________

ARGUED APRIL 22, 2008—DECIDED JULY 30, 2008

____________

Before RIPPLE, EVANS and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge. Brett Stallings was convicted of

possession of a firearm by a felon. See 18 U.S.C. § 922(g).

Mr. Stallings, an armed career criminal, see id. § 924(e),

was sentenced to 188 months’ imprisonment shortly

before the Supreme Court decided United States v. Booker,

543 U.S. 220 (2005) (holding that the sentencing guidelines are advisory, not mandatory). In this postconviction

proceeding under 28 U.S.C. § 2255, Mr. Stallings contends

that counsel on direct appeal was ineffective because she

failed to raise a claim under Booker. For the reasons set

forth in this opinion, we agree with Mr. Stallings that
2 No. 06-3914

counsel was deficient in failing to raise the claim, but,

because we cannot determine on the record before us

whether this shortcoming prejudiced Mr. Stallings, we

vacate the district court’s order and remand for further

proceedings on this issue.

I

BACKGROUND

Mr. Stallings, a convicted felon, was standing in a

parking lot when a police car approached him. Police

observed Mr. Stallings discard an item under a nearby

vehicle, and, when they retrieved it, they discovered it to

be a loaded revolver. Mr. Stallings was charged with

possession of a firearm by a felon and found guilty by

a jury.

Mr. Stallings was sentenced in November 2004, several

months after we had held the mandatory nature of the

sentencing guidelines to be unconstitutional in United

States v. Booker, 375 F.3d 508 (7th Cir. 2004), and three

months after the Supreme Court had granted certiorari

in that case, see United States v. Booker, 542 U.S. 956 (2004).

Over objection, the district court found that Mr. Stallings

had three qualifying convictions under section 924(e)(2)

and thus faced a minimum sentence of 15 years under

section 924(e)(1). The court, applying the guidelines,

calculated a total offense level of 33 and a criminal history

category of IV, which yielded an imprisonment range of

188 to 235 months.

Before sentencing Mr. Stallings to 188 months’ imprisonment, the district court stated that “under the law, I believe I am required to impose a certain, at least minimum
No. 06-3914 3

sentence.” R.107 at 21. Mr. Stallings’ arguments about his

failing health, the district court continued, were not

sufficiently corroborated by medical information to allow

the court “to depart downward or reduce a sentence

for that medical condition.” Id. Mr. Stallings’ trial counsel

did not object on any ground to the application of the

sentencing guidelines. But after the sentence had been

imposed, counsel addressed the following inquiry to the

court: “Judge, and I don’t know what the answer is,

maybe you can—with Blakely being under on [sic] the

Supreme Court, do you have to do any alternative sentencing? Because I think you sentenced him under the

guidelines.” Id. at 26. The district court responded: “I did

not impose an alternative sentence. And I think the sentence is appropriate. If it turns out I’m wrong, then we’ll

do it again.” Id. Nothing more was said on the subject

by counsel or the court.

Mr. Stallings appealed with newly appointed counsel.

Counsel argued both that there was insufficient evidence

to convict and that former counsel had rendered ineffective assistance during the trial. United States v. Stallings,

160 Fed. App’x 478 (7th Cir. 2005). The case was briefed

after the Supreme Court had decided Booker and after this

court had decided United States v. Paladino, 401 F.3d 471

(7th Cir. 2005), and United States v. Schlifer, 403 F.3d 849

(7th Cir. 2005). Nevertheless, appellate counsel did not

make a Booker argument in her brief, and the subject was

not raised during oral argument on October 25, 2005. We

affirmed the judgment in December 2005.

Mr. Stallings then filed a petition for habeas corpus

under section 2255 in February 2006. He raised a number

of claims, including that his appellate lawyer had been

ineffective because she did not argue that it was error for
4 No. 06-3914

1 In his brief, Mr. Stallings asked us to expand the certificate of

appealability to allow him to contend that appellate counsel

also was ineffective in failing to argue that a burglary conviction used in sentencing him as an armed career criminal

(continued...)

the district court to sentence him as an armed career

criminal without proving his predicate convictions to a

jury beyond a reasonable doubt. In connection with this

contention, Mr. Stallings alleged that he had brought

Blakely v. Washington, 542 U.S. 296 (2004), to appellate

counsel’s attention but that she had ignored that decision

against his wishes. Mr. Stallings also claimed that he

should not have received a guidelines sentence because he

was sentenced “Post ‘Blakely’ and Pre Booker.” R.1 at 9. In

denying relief, the district court first concluded that Mr.

Stallings was foreclosed from raising a Booker claim by way

of section 2255. The court also rejected his claim that

appellate counsel had been ineffective, but it made no

mention of Booker in rejecting that claim.

Mr. Stallings filed a timely notice of appeal, which

we construed as an application for a certificate of

appealability. We granted Mr. Stallings a certificate

“regarding whether his appellate counsel was ineffective”

and directed the parties “to address whether appellate

counsel’s failure to argue that Stallings was entitled to

a limited remand to determine whether the sentencing

court would have imposed the same sentence under an

advisory guidelines regime, see United States v. Paladino, 401

F.3d 471, 483-84 (7th Cir. 2005), constituted ineffective

assistance of counsel.” Stallings v. United States, No. 06-3914

(7th Cir. Jan. 25, 2007) (order granting certificate of

appealability).1
No. 06-3914 5

1 (...continued)

was not a “violent felony” under section 924(e)(2)(B). We

previously rejected this expansion request. Stallings v. United

States, No. 06-3914 (7th Cir. Aug. 2, 2007) (order denying

expansion of certificate of appealability). In any event, the

proposed theory is frivolous. The indictment and judgment

for that conviction reveal that Mr. Stallings burglarized a

structure, and burglary of a structure is per se a “violent felony.”

See 18 U.S.C. § 924(e)(2)(B)(ii); Taylor v. United States, 495

U.S. 575, 599 (1990).

II

DISCUSSION

As a preliminary matter, Mr. Stallings makes a broader

argument than the one framed in the certificate of

appealability. He submits that his appellate counsel

should have asked not for a limited remand under

Paladino, as suggested by our certificate, but for a full

remand under United States v. Schlifer, 403 F.3d 849 (7th Cir.

2005). This is so, according to Mr. Stallings, because “by

citing to Blakely at sentencing . . . trial counsel preserved

his Booker argument, making Mr. Stallings eligible for

harmless error review under Schlifer.” Appellant’s Br. at

17. We cannot accept Mr. Stallings’ premise. When

Mr. Stallings’ trial counsel mentioned Blakely at sentencing, he did no more than ask the district court about

the governing law; counsel did not offer a view of the

law or suggest that Mr. Stallings had been sentenced

improperly, and therefore he did not preserve any error.

Thus, the question before us, as correctly framed in the

order granting a certificate of appealability, is whether

Mr. Stallings’ appellate counsel was ineffective for

failing to raise the Paladino argument.
6 No. 06-3914

On review from the denial of a section 2255 motion,

we review findings of fact for clear error and findings of

law de novo. Bethel v. United States, 458 F.3d 711, 716 (7th

Cir. 2006). To show that his appellate counsel was ineffective, Mr. Stallings would have to prove that (1) counsel’s performance fell below an objective standard of

reasonableness, and (2) he was prejudiced by counsel’s

error. Strickland v. Washington, 466 U.S. 668, 687-92 (1984);

Suggs v. United States, 513 F.3d 675, 678 (7th Cir. 2008). We

presume that counsel’s performance was reasonable, and

that presumption must be overcome for Mr. Stallings to

succeed. Martin v. Evans, 384 F.3d 848, 852 (7th Cir. 2004).

When a petitioner contends that his appellate counsel

was ineffective because counsel overlooked a meritorious

argument, we first examine the record to see whether

the appellate attorney in fact omitted “significant and

obvious” issues. Suggs, 513 F.3d at 678; Martin, 384 F.3d

at 851-52. If so, we then compare the neglected issues to

those actually raised; if the ignored issues are “clearly

stronger” than those raised, appellate counsel was deficient. Lee v. Davis, 328 F.3d 896, 900-01 (7th Cir. 2003). We

shall not second-guess strategic decisions that were

arguably appropriate at the time but that hindsight has

revealed to be unwise. Mason v. Hanks, 97 F.3d 887, 893

(7th Cir. 1996). To meet the prejudice prong Mr. Stallings

must show “a reasonable probability” that the omitted

Booker claim “would have altered the outcome” of his

direct appeal had it been raised. See Lee, 328 F.3d at 901.

We have not addressed previously whether the failure

of appellate counsel to raise a forfeited Booker claim and

request a Paladino remand could constitute ineffective

assistance. At least one district court in this circuit has

granted a section 2255 motion made on that ground. See

Gant v. United States, 2006 WL 842374, at *4 (C.D. Ill. Mar.
No. 06-3914 7

28, 2006); see also United States v. Pena, 2007 WL 496731,

at *1 (W.D. Mich. Feb. 13, 2007).

We agree with Mr. Stallings that, in this particular case,

the omitted Paladino argument was “significant and

obvious” and also “clearly stronger” than the arguments

raised by appellate counsel. A limited remand under

Paladino was available to any appellant who might conceivably benefit from the procedure, and the threshold

was very low. Meanwhile, the issues appellate counsel

did raise were nearly doomed to fail. See United States v.

Harris, 394 F.3d 543, 557-58 (7th Cir. 2005) (explaining

why ineffective-assistance claims should rarely be

brought on direct appeal); United States v. Hicks, 368

F.3d 801, 804-05 (7th Cir. 2004) (stating that the standard

of review for insufficiency claim is “daunting”).

Had Mr. Stallings asked for a Paladino remand on direct

appeal, we would have granted it; the sentencing judge’s

cryptic comment about having imposed an “appropriate”

sentence is not enough from which to conclude that the

district court would not have considered a lower sentence had it understood the advisory nature of the guidelines. As long as the district court viewed the guidelines

to be mandatory and did not convey that it would reject

greater leniency under an advisory system, a Paladino

remand request was available to any defendant who

failed to make a Booker argument at sentencing. See United

States v. Washington, 417 F.3d 780, 788-89 (7th Cir. 2005).

The district court’s belief that it was required to impose

a guidelines sentence constituted error. United States v.

White, 406 F.3d 827, 835 (7th Cir. 2005). In the limited

remand, we would have asked the district court whether

the sentence might have been different under the advisory guidelines regime—in other words, whether the

error was prejudicial. Paladino, 401 F.3d at 483-84. This
8 No. 06-3914

also is the key remaining question under the Strickland

test. 466 U.S. at 692.

The district court, however, never addressed the

theory that appellate counsel’s failure to seek a Paladino

remand constituted ineffective assistance. If the district

court had addressed this question when it first considered the section 2255 motion, it could have answered

the question of prejudice simply by saying whether it

would have sentenced Mr. Stallings any differently had

it known the guidelines were advisory. Because the district court did not answer this question, we cannot determine whether counsel’s deficient performance resulted

in prejudice to Mr. Stallings. Thus, we vacate the court’s

order and remand for further consideration.

If the district court announces that it would have replied

to a Paladino remand by informing this court that the

same sentence would have been imposed, then Mr.

Stallings could not have been prejudiced by appellate

counsel’s failure to raise the argument on appeal. In that

event, the section 2255 motion should be denied. On the

other hand, if the district court would have signaled an

intention to resentence in response to a Paladino remand,

then it should grant the section 2255 motion, vacate

Mr. Stallings’ sentence and resentence him.

Conclusion

Accordingly, we vacate the district court’s judgment and

remand for further proceedings consistent with this

opinion.

VACATED and REMANDED

USCA-02-C-0072—7-30-08