     Case: 07-11160     Document: 00511102503          Page: 1    Date Filed: 05/06/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                             May 6, 2010

                                     No. 07-11160                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,
v.

PAULETTE GUY McTIZIC, also known as Paulette Metizic,

                                                   Defendant-Appellant.




                   Appeals from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:06-CV-655


Before JOLLY, WIENER and ELROD, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Paulette Guy McTizic, pro se, appeals the district
court’s denial of her motion, pursuant to 28 U.S.C. § 2255, to correct, vacate or
set aside her sentence on the ground of ineffective assistance of counsel. For the
following reasons, we affirm.




        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                        I.
      In February of 2003, a grand jury in the Northern District of Texas
returned a three-count indictment against McTizic. Count one charged her with
with bank fraud and aiding and abetting, in violation of 18 U.S.C. §§ 1344 & 2.
Count two charged her with possession of a forged security, in violation of 18
U.S.C. § 513(a).    Count three charged her with fraudulent possession of
identification documents, in violation of 18 U.S.C. § 1028(a)(3). McTizic pleaded
guilty to count one on October 27, 2003.       At sentencing, McTizic’s counsel
objected to the two-level increase in her base offense level for the use of
“sophisticated means” to commit bank fraud and the four-level increase based
on McTizic’s role as the “organizer” or “leader of criminal activity involving five
or more participants. See U.S.S.G. § 2B1.1(b)(9)(C); § 3B1.1(c). McTizic’s counsel
objected that these enhancements amounted to double-counting, but did not
raise any constitutional objection.     The district court overruled all of the
objections, denied the government’s motion for a downward departure under §
5K1.1 and sentenced her to 77 months imprisonment, which was near the
bottom of the then-mandatory Guidelines.
      McTizic appealed her conviction and sentence, which this court affirmed.
United States v. McTizic, 111 F. App’x 255 (5th Cir. 2005) (unpublished) vacated
by McTizic v. United States., 544 U.S. 917 (2004). In a petition for rehearing,
McTizic argued for the first time that her sentence was invalid in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542
U.S. 296 (2004). This court denied rehearing and McTizic filed a petition for
certiorari. The Supreme Court vacated McTizic’s conviction and remanded the
case for reconsideration in light of United States v. Booker, 543 U.S. 220 (2005).
McTizic, 544 U.S. at 917. This court reinstated it judgment affirming conviction
and sentence, declining to consider McTizic’s Booker-related claims, as they had



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been presented for the first time in her petition for rehearing. United States v.
McTizic, 139 F. App’x 635 (5th Cir. 2005) (unpublished).
      McTizic timely filed a motion under 28 U.S.C. § 2255 in which she raised
a number of claims of ineffective assistance of counsel. She claimed that her
trial counsel failed to object that certain factual issues related to sentencing had
been resolved by a judge rather than a jury, in violation of the Sixth
Amendment, despite her specific instructions to make this objection.            The
government responded that McTizic had failed to establish that her counsel had
been ineffective because this court’s decision in United States v. Keith, 230 F.3d
784 (5th Cir. 2000), foreclosed any objection on Apprendi grounds at the time of
sentencing and counsel could not be expected to foresee the developments in the
law following Blakely and Booker. The district court denied the motion for the
reasons stated by the government and declined to order an evidentiary hearing.
This court granted a COA on the question of whether McTizic’s counsel rendered
ineffective assistance of counsel by failing to heed her requests to lodge an
objection under Apprendi to her sentence.
                                         II.
      We have jurisdiction pursuant to 28 U.S.C. § 2253 because we previously
issued McTizic a COA in this case. “We ‘review a district court’s conclusions with
regard to a petitioner’s § 2255 claim of ineffective assistance of counsel de novo.’”
United States v. Molina-Uribe, 429 F.3d 514, 518 (5th Cir. 2005) (quoting United
States v. Conley, 349 F.3d 837, 839 (5th Cir. 2003)). We review “a district court's
refusal to grant an evidentiary hearing on a § 2255 motion for abuse of
discretion.” United States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008).
      The Sixth Amendment guarantees criminal defendants the “right to
effective assistance of counsel at every critical stage of the proceedings against
them.” Burdine v. Johnson, 262 F.3d 336, 344 (5th Cir. 2001). This right “is
denied when a defense attorney’s performance falls below an objective standard

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of reasonableness and thereby prejudices the defense.” Yarborough v. Gentry,
540 U.S. 1, 4 (2003) (citing Wiggins v. Smith, 539 U.S. 510, 521 (2003)). We
review claims of ineffective assistance of counsel under the two-pronged test
established in Strickland v. Washington, 466 U.S. 668 (1984).
      To satisfy this test, a petitioner “[f]irst ... must show that [his] counsel's
performance was deficient.” Strickland, 466 U.S. at 687. “This requires showing
that counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. The petitioner
must demonstrate that “counsel’s representation fell below an objective standard
of reasonableness.” Id. at 688. Second, the petitioner “must show that the
deficient performance prejudiced the defense.” Id. at 687.           “This requires
showing that counsel’s errors were so serious as to deprive the [petitioner] of a
fair trial, a trial whose result is reliable.” Id. To do so, the petitioner “must show
that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694.
      We are mindful of the Supreme Court’s admonition that “judicial scrutiny
of counsel’s performance must be highly deferential.” Id. at 689. An appellate
court “must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Id.; accord United States v.
Fields, 565 F.3d 290, 294 (5th Cir. 2009). Further, we must make “every effort
. . . to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel's perspective at the time.” Strickland, 466 U.S. at 689. Guided by this
principle, “we have repeatedly held that ‘there is no general duty on the part of
defense counsel to anticipate changes in the law.’” Fields, 565 F.3d at 294 (citing
Green v. Johnson, 116 F.3d 1115, 1125 (5th Cir.1997)).
      Here, McTizic asserts that her counsel was ineffective for failing to lodge
an objection under Apprendi or Blakely to the district court’s factual findings

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that supported her sentence enhancements. At the time of McTizic’s sentencing,
however, Blakely had not yet been decided and this court’s controlling preceding
made clear that Apprendi did not apply in cases where a defendant’s sentence
was not enhanced beyond the statutory maximum. See Keith, 230 F.3d at 787;
United States v. Doggett, 230 F.3d 160, 165 (5th Cir. 2000); United States v.
Meshack, 225 F.3d 556, 576 (5th Cir. 2000), amended on rehearing in part by 244
F.3d 367 (5th Cir. 2001). McTizic’s sentence of 77 months was well within the
statutory maximum sentence for bank fraud. See 18 U.S.C. § 1344. We have
previously held that the failure of defense counsel to anticipate the direction that
the Supreme Court would take in Blakely and Booker does not give rise to a
claim for ineffective assistance of counsel. See, e.g., Fields, 565 F.3d at 297
(“[W]e cannot hold Fields’s counsel ineffective for failing to predict the absolute
sea-change in federal sentencing wrought by Booker. (internal quotation marks
and citation omitted)); United States v. Jackson, 332 F. App’x 973 (5th Cir. 2009)
(unpublished).
      We pause to note that this case is somewhat distinguished by the fact that
McTizic submitted a sworn affidavit in which she describes in detail how she was
made aware of the potential impact of Blakely and communicated her request to
her trial counsel that he file an objection based on the case.         In general,
attorneys are obliged to follow the explicit instructions of their clients. See
Faretta v. California, 422 U.S. 806, 820 (1975) (“The counsel provision . . . speaks
of the ‘assistance’ of counsel, and an assistant, however expert, is still an
assistant.”); Autry v. McKaskle, 727 F.2d 358, 362 (5th Cir. 1984) (noting defense
counsel’s ethical obligations to follow a competent client’s wishes). We believe
that McTizic’s counsel should have better communicated with her as to why he
did not file an objection pursuant to Apprendi. Under Strickland’s rigorous test,
however, we cannot say that the failure to raise what would have been a
fruitless objection amounts to ineffective assistance of counsel in this case.

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      Because we find that McTizic has failed to meet the first prong of
Strickland’s test, we need not address the question of prejudice. United States
v. Stewart, 207 F.3d 750, 751 (5th Cir. 2000).
      We likewise conclude that there was no need for an evidentiary hearing
in this case, as “we can conclude as a matter of law that [McTizic] cannot
establish one or both of the elements necessary to establish [her] constitutional
claim.” United States v. Walker, 68 F.3d 931, 934 (5th Cir. 1995).
      For the foregoing reasons, the judgment of the district court is hereby
AFFIRMED.




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