                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 07-1112
                                     ___________

Gayle Jean Steele,                     *
                                       *
            Petitioner – Appellant,    *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Southern District of Iowa.
United States of America,              *
                                       *
            Respondent – Appellee.     *
                                  ___________

                              Submitted: January 17, 2008
                                 Filed: March 13, 2008
                                  ___________

Before LOKEN, Chief Judge, HANSEN, and MURPHY, Circuit Judges.
                              ___________

MURPHY, Circuit Judge.

       Petitioner Gayle Jean Steele appeals from the denial by the district court1 of her
28 U.S.C. § 2255 motion to vacate, set aside or correct her sentence. She was earlier
sentenced to 262 months imprisonment for her conviction of conspiracy to
manufacture methamphetamine in violation of 21 U.S.C. § 846. We granted a
certificate of appealability on one issue in Steele's § 2255 motion – her claim that
counsel's failure to honor her request to file a petition for certiorari constituted
ineffective assistance of counsel. We affirm.

      1
       The Honorable James E. Gritzner, United States District Judge for the Southern
District of Iowa.
       On appeal Steele contends that she had a constitutional right to have her
attorney file a certiorari petition, that his failure to do so prejudiced her because she
lost the opportunity to have her claim reviewed in light of United States v. Booker,
543 U.S. 220 (2005), and that she is entitled to relief because her sentence was
unconstitutionally imposed.

       The right to counsel at trial is guaranteed by the Sixth Amendment, but the Fifth
Amendment due process clause governs the right to counsel for appellate proceedings.
See Ross v. Moffitt, 417 U.S. 600, 610–11 (1974); Scott v. United States, 473 F.3d
1262, 1264 (8th Cir. 2007). Due process guarantees a criminal defendant a
constitutional right to counsel for her first appeal, Douglas v. California, 372 U.S.
353, 357–58 (1963), and that right encompasses the right to effective assistance of
counsel, Evitts v. Lucey, 469 U.S. 387, 396–400 (1985).

        Due process does not, however, guarantee a constitutional right to counsel for
a litigant seeking to file a certiorari petition in the United States Supreme Court. Ross,
417 U.S. at 617–18; see Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) ("[T]he
right to appointed counsel extends to the first appeal of right, and no further."); see
also 28 U.S.C. § 1254 (writ of certiorari is discretionary). Since the right to effective
assistance of counsel derives solely from the right to appellate counsel guaranteed by
the right to due process, Wainwright v. Torna, 455 U.S. 586, 587–88 (1982), a litigant
like Steele without a constitutional right to counsel cannot "be deprived of the
effective assistance of counsel." Id.; see also Simpson v. Norris, 490 F.3d 1029, 1033
(8th Cir. 2007) ("where there is no constitutional right to counsel there can be no
deprivation of effective assistance."). In the absence of a constitutional right to the
effective assistance of counsel Steele's § 2255 claim for ineffective assistance cannot
succeed.

       Steele maintains, however, that Federal Rule of Criminal Procedure 44(a) and
our circuit plan to implement the Criminal Justice Act create a right to have effective


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assistance of counsel to file a petition for certiorari and that the breach of that right
deprived her of due process. See 8th Cir. Amended Criminal Justice Act Plan, Part
V. Although her attorney informed her by letter of his decision not to file a petition
for a writ of certiorari, Steele argues that he violated the circuit plan by failing to
inform her of the procedure and time limits for filing a certiorari petition pro se and
by not certifying that he had complied with these obligations. See id. We disagree
that such violations would create a constitutional right to effective assistance of
counsel.

       While our plan to implement the mandates of the Criminal Justice Act of 1964
may well embody the congressional judgment as to what representation to afford
defendants, it is not a statement of what the Constitution requires. As in Finley, 481
U.S. at 553–59, the source of the duty in our plan is a legislative policy judgment
rather than a constitutional command. Similarly, the right created by Rule 44(a),
which embodies a right to free counsel for indigent defendants, arises from rules of
the Supreme Court promulgated pursuant to statutory authorization, not from a
constitutional requirement. See 28 U.S.C. §§ 2071–77 ( Rules Enabling Act). The
alleged breach of the provisions of our plan and Rule 44(a) did not deprive Steele of
due process of law and did not give rise to a claim for ineffective representation of
counsel.

       Even if she had the right to counsel to file a certiorari petition, Steele would
have had to show that she suffered prejudice from her attorney's failure to file a
petition in order to establish a claim for ineffective assistance of counsel. Strickland
v. Washington, 466 U.S. 668, 691 (1984). Steele would have to show not only that
she would have succeeded in obtaining a writ of certiorari if counsel had filed a
petition, but also a reasonable probability that she would have obtained relief as to her
sentence. Id. at 694. Even assuming that Steele's petition were granted and her case
were remanded from the Supreme Court, she has not shown a reasonable probability
that she would have prevailed on remand.


                                          -3-
       In her § 2255 motion Steele suggests that because the Supreme Court granted
the certiorari petition of Duane Carpenter, her brother and codefendant, and remanded
his case in light of United States v. Booker, 543 U.S. 220 (2005), her certiorari
petition would have led to relief. Although Carpenter's case was remanded, his
sentence was not affected. Because he had not made a Sixth Amendment argument
in the district court or objected to the mandatory nature of the guidelines, his sentence
was reviewed for plain error only and none was found. United States v. Carpenter,
422 F.3d 738, 749–50 (8th Cir. 2005). Nothing in the record suggests that the district
court would have imposed a different sentence for Steele had it treated the guidelines
as advisory. At sentencing the district court determined that criminal history category
III did not accurately reflect her prior offense conduct, which included two
convictions for second degree murder and a forgery conviction, and departed upward
to category IV. The court also applied an enhancement for possession of a firearm
after hearing testimony from a coconspirator that he had seen a gun in Steele's home.
Because these decisions were based on judicial factfinding deemed constitutionally
permissible under Booker, Steele could not show a reasonable probability that the
district court would have imposed a different sentence had it operated under an
advisory guidelines system. See United States v. Pirani, 406 F.3d 543, 549–52 (8th
Cir. 2005) (en banc) (plain error review where constitutional issue not raised in district
court).

       We conclude that Steele had no constitutional right to counsel for the filing of
a certiorari petition and that the district court properly dismissed her § 2255 motion.
The judgment of the district court is therefore affirmed.
                        _______________________________




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