                                                       NOT PRECEDENTIAL


                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                     No. 13-3522
                                    _____________

                        UNITED STATES OF AMERICA

                                         v.

                              GEORGE HOPKINS,
                                    Appellant
                               ______________

            APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                          (D.C. No. 1-06-cr-00064-001)
                   District Judge: Hon. Christopher C. Conner
                                ______________

                              Argued: May 14, 2014
                                ______________

           Before: SMITH, VANASKIE, and SHWARTZ, Circuit Judges.

                               (Filed: June 3, 2014)


Ruben Cruz [ARGUED]
Duquesne University School of Law
914 Fifth Avenue
Pittsburgh, PA 15219


Emilia Rinaldi [ARGUED]
Duquesne University School of Law
600 Forbes Avenue
Pittsburgh, PA 15282
Adrian N. Roe, Esq.
707 Grant Street
Suite 1331
Gulf Tower
Pittsburgh, PA 15219

              Counsel for Appellant

Michael A. Consiglio, Esq. [ARGUED]
Office of United States Attorney
228 Walnut Street, Suite 220
Harrisburg, PA 17108

              Counsel for Appellee

                                      _____________

                                        OPINION
                                      ____________


SHWARTZ, Circuit Judge.

       George Hopkins seeks relief pursuant to 28 U.S.C § 2255 based upon a claim that

his trial counsel was ineffective by asserting that the sentencing judge lacked the

authority to run his federal sentence concurrent with a yet-to-be-imposed state sentence.

He asserts that the Supreme Court’s decision in Setser v. United States, 132 S. Ct. 1463

(2012), demonstrates that such authority existed and that he is entitled to relief. Focusing

as we must on the law as it existed at the time of sentencing, we conclude that defense

counsel was not ineffective and we will affirm.

                                              I

       As we write principally for the benefit of the parties, we recite only the essential

facts and procedural history. In the summer of 2005, Hopkins was serving a sentence


                                              2
at the Dauphin County Work Release Center. At some point, he left the facility and did

not return as required. A few months later, Hopkins and a friend drove to the Center to

retrieve Hopkins’s personal belongings. The friend went inside while Hopkins waited in

the car.

       A probation officer saw Hopkins sitting in the car and approached him. Hopkins

pulled out a .22 caliber pistol and shot at the officer, grazing him in the back. Officers

arrested Hopkins and took him to the Dauphin County Prison. During a routine search,

prison officials found 8.6 grams of crack cocaine in Hopkins’s underwear. Hopkins was

thereafter charged with federal and state offenses.

       On the federal side, a grand jury returned a two-count indictment charging

Hopkins with possession with intent to distribute five grams or more of crack cocaine, in

violation of 21 U.S.C. § 841(a)(1), and being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1). Hopkins pled guilty to the drug count and the

firearms charge was dismissed.

       On the state side, a Pennsylvania jury convicted Hopkins of two counts of

aggravated assault upon the probation officer, carrying a firearm without a license,

possession of a firearm by a felon, recklessly endangering another person, and providing

false identification to police.

       The District Court imposed its sentence first. During the sentencing hearing,

Hopkins’s attorney noted that Hopkins would be sentenced in state court in the future but

never argued that the federal sentence should run concurrent with the future state

sentence. To the contrary, defense counsel asserted that the sentences must run

                                              3
consecutively. JA 55-56 (“Because we’re proceeding with sentencing prior to any

disposition in terms of sentence in state court, he’s a state prisoner, he can’t get any

concurrent sentence despite what the presentence report indicates.”)

       The District Court sentenced Hopkins to 188 months’ imprisonment but made no

statements regarding whether the sentence should run concurrent with or consecutive to

the yet-to-be imposed state sentence. Several weeks later, the state court imposed an

aggregate sentence of 150 to 360 months’ imprisonment and ordered that the state

sentence run consecutive to the federal sentence.

       Hopkins’s federal sentence was based on his designation as a career offender, but

this designation was vacated in light of Chambers v. United States, 555 U.S. 122 (2009).

Hopkins v. United States, 555 U.S. 1132 (2009). On remand, we held that Hopkins was

not a career offender, but that “[t]his conclusion [did] not require any change in

Hopkins’[s] sentence” because Hopkins’s assault on the officer triggered application of

the official victim enhancement, which resulted in the same sentence. United States v.

Hopkins, 577 F.3d 507, 515 (3d Cir. 2009). We therefore affirmed the sentence. Id.

Hopkins’s sentence was later reduced to 92 months’ imprisonment due to the

amendments to the Sentencing Guidelines relating to crack cocaine offenses.

       Hopkins thereafter filed a motion pursuant to § 2255, claiming, among other

things, that his counsel was ineffective under Strickland v. Washington, 466 U.S. 668

(1984), for failing to request a concurrent sentence. Hopkins sought to amend his motion

to assert that he is entitled to resentencing under Setser v. United States, 132 S. Ct. 1463

(2012), which he contends simply restates existing law that gave sentencing judges the

                                              4
discretion to order that their sentences run concurrent with or consecutive to a yet-to-be

imposed sentence.

       The District Court found that because “Setser had not yet been decided and

[Hopkins’s] counsel did not believe that his federal sentence could be imposed

concurrently with his state sentence,” the ineffective assistance claim was meritless. JA

12. The District Court also denied the request to amend the motion based upon Setser

because it concluded that Setser announced a new rule of law that did not apply

retroactively under Teague v. Lane, 489 U.S. 288, 306 (1989), and therefore could not

provide Hopkins a basis for relief. The District Court granted certificates of appealability

on both issues. For the reasons set forth, we will affirm.

                                             III1

       In Strickland, the Supreme Court provided the standard for judging ineffective

assistance of counsel claims. 466 U.S. at 687. To succeed on his claim, Hopkins must

show “(1) that his counsel’s performance was deficient; and (2) that he was prejudiced by

it.” United States v. Lilly, 536 F.3d 190, 195 (3d Cir. 2008).

       We first address whether Hopkins has shown “that his counsel’s representation

‘fell below an objective standard of reasonableness.’” Id. at 196 (quoting Strickland, 466

U.S. at 688). “A court ‘deciding an actual ineffectiveness claim must judge the

reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed


       1
          The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 2255. We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253. We exercise plenary review over a
district court’s legal conclusions and apply a clear error standard to the court’s findings of
fact. United States v. Lilly, 536 F.3d 190, 195 (3d Cir. 2008).
                                              5
as of the time of counsel’s conduct.’” United States v. Davies, 394 F.3d 182, 189 (3d

Cir. 2005) (quoting Strickland, 466 U.S. at 690, and adding emphasis).

       To determine whether Hopkins’s counsel was ineffective at sentencing, we must

assess the state of the law at the time of Hopkins’s sentencing with respect to a federal

court’s authority to impose a sentence to run concurrent with the yet to be imposed state

sentence. Davies, 394 F.3d at 189. At the time of sentencing, this Court had made

statements on this subject only in cases that predated the Sentencing Reform Act. In

United States ex rel. Lester v. Parker, 404 F.2d 40, 41 (3d Cir. 1968) (per curiam), this

Court held that a federal sentence ordered to run consecutive to a future state sentence

was sufficiently definite to satisfy due process. Thus, Lester provided authority for a

sentencing court to impose a sentence to run consecutive to a future sentence.2 Id. at 42.

       The language used in the then-existing precedent addressing the authority of a

federal sentencing judge to order the federal sentence to run concurrent with a yet-to-be-

imposed state sentence was different. For instance, in Barden v. Keohane, 921 F.2d 476

(3d Cir. 1990), this Court, in holding that only the Bureau of Prisons had the authority to

decide whether a state prison should be designated as the defendant’s place of federal

confinement, and thereby allow the federal sentence to be served concurrent with the

state sentence, specifically stated (without explanation) that the district court was

“powerless” to order that a sentence run concurrent with a future sentence. Id. at 483.


       2
         Even though Lester only addressed consecutive sentences, Setser cited Lester for
the proposition that appellate courts have recognized that federal sentencing courts have
traditionally had discretion to select whether the sentences they impose will run either
concurrent with or consecutive to future state sentences. Setser, 132 S. Ct. at 1468.
                                              6
Barden relied upon Gomori v. Arnold, 533 F.2d 871 (3d Cir. 1976), in which this Court

also stated (again without explanation) that a “federal court has no power to direct that a

federal sentence shall run concurrently with a state sentence,” and that it only had the

ability to “recommend to the Attorney General that he designate a state institution as the

place of service of a federal sentence in order to make it concurrent with a state sentence

being served at that institution.” Id. at 875.

       While each of these cases involved review of the statutory authority that vested the

Attorney General with the discretion to designate a state institution as the place at which

a federal sentence could be served, this Court as well as at least one other relied on this

statutory authority to say that a district court was powerless to order that its sentence run

concurrent to or consecutive with a future sentence. Setser, 132 S. Ct. at 1468 n.2.

Although some of this statutory authority had been repealed by the time Hopkins was

sentenced, and even though none of the cases addressed the authority granted under the

Sentencing Reform Act, the language in this precedent was unequivocal and counsel

reasonably relied on it. Furthermore, as a result of this strong language, it was also

reasonable for defense counsel not to bring to the sentencing court’s attention cases from

other circuits that had held there was authority to impose a federal sentence to run

concurrent with a yet to be imposed state sentence. Cf. Jansen v. United States, 369 F.3d

237, 243-44 (3d Cir. 2004) (counsel’s performance deficient where he failed to cite




                                                 7
favorable out of circuit cases that were readily available). Thus, counsel’s performance

was not deficient.3


       3
          Hopkins’s reliance on Setser is misplaced. Setser announced a new rule that
does not apply retroactively and hence it does not provide Hopkins with a basis for relief.
In Teague v. Lane. 489 U.S. 288 (1989), the Supreme Court addressed whether a federal
court could grant habeas corpus relief to a prisoner based on a rule of criminal procedure
announced by the Supreme Court after the prisoner’s conviction became final. In
resolving this issue, the Teague Court articulated a framework that divided the world into
“old rules” and “new rules.” A rule is new if it “‘was not dictated by precedent existing
at the time the defendant’s conviction became final.’” Chaidez v. United States, 133 S.
Ct. 1103, 1107 (2013) (quoting Teague, 489 U.S. at 301). A “holding is not so dictated
. . . unless it would have been apparent to all reasonable jurists.” Id. (quotation marks
omitted). Thus, whether a rule is an “old rule” depends on whether all “reasonable
jurists” would agree that the rule was “dictated” by existing precedent. Id. Accordingly,
a historically-rooted rule may still be “new” for Teague purposes so long as “reasonable
jurists” would have disagreed on how (or whether) the rule applied to changed
circumstances or new contexts. See id. at 1108-10 (holding that a case applying the
traditional Strickland standard to new context announced a new rule).
         Setser articulated such a rule. The issue in Setser was not whether federal district
courts traditionally possessed broad sentencing discretion, but whether that traditional
discretion was cabined by changed circumstances—namely, the Sentencing Reform Act.
Setser held that it was not. This holding, however, was not “apparent to all reasonable
jurists.” Chaidez, 133 S. Ct. at 1107. Before Setser, a federal sentencing court may have
(correctly) determined that neither the Sentencing Reform Act “nor any other statute . . .
authorize[d] a federal judge to declare that his sentence must run consecutively [or
concurrently] to some sentence that may be imposed in the future.” Romandine v. United
States, 206 F.3d 731, 737 (7th Cir. 2000). In fact, pre-Setser, at least five Circuit courts
reasoned that since no statute authorizes a federal judge to order its sentence to run
concurrently or consecutively with a future state sentence, the court lacked the authority
in the absence of statutory authorization. See United States v. Donoso, 521 F.3d 144,
146-49 (2d Cir. 2008) (per curiam); United States v. Smith, 472 F.3d 222, 225-27 (4th
Cir. 2006); Romandine, 206 F.3d at 737-39; United States v. Quintero, 157 F.3d 1038,
1039-40 (6th Cir. 1998); United States v. Clayton, 927 F.2d 491, 492 (9th Cir. 1991).
For these reasons, the rule in Setser was not “dictated” by existing precedent that
recognized a federal sentencing court’s traditional discretion. See Caspari v. Bohlen, 510
U.S. 383, 393-95 (1994) (examining the “experience of the lower courts” when analyzing
whether a rule was a development over which reasonable jurists could disagree).
Accordingly, the rule is “new” for Teague purposes.
         Because Setser establishes a new rule, Hopkins may only invoke the rule on
collateral attack if: (1) the new rule places certain kinds of criminal conduct beyond the
                                             8
       Even if counsel’s failure to advocate for a concurrent sentence was ineffective,

Hopkins has not shown prejudice, that is, that “there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694. In the sentencing context, Hopkins must show

there was a reasonable probability that “the deficient performance affected [his]

sentence.” United States v. Hankerson, 496 F.3d 303, 310 (3d Cir. 2007) (citing Glover

v. United States, 531 U.S. 198, 203-04 (2001)). A “totally speculative” harm, Baker v.

Barbo, 177 F.3d 149, 154 (3d Cir. 1999), or the “mere possibility” of receiving a

concurrent sentence, see Prewitt v. United States, 83 F.3d 812, 818-19 (7th Cir. 1996),

does not demonstrate prejudice.

       Here, we cannot say that there exists a “reasonable probability” that the District

Court would have imposed a concurrent sentence even if counsel had asked for it.

Strickland, 466 U.S. at 694. While the violent nature of the conduct underlying the state

offenses enhanced Hopkins’s federal sentence, the state and the federal convictions were

for entirely different crimes. The state convictions related to the shooting and Hopkins’s


power of the criminal law-making authority to proscribe; or (2) the new rule is a
“watershed rule[ ] of criminal procedure” that “alter[s] our understanding of the bedrock
procedural elements that must be found to vitiate the fairness of a particular conviction.”
Teague, 489 U.S. at 311 (emphasis in original) (internal quotation marks omitted). Setser
plainly falls outside of the first exception as it dealt solely with a district court’s
sentencing discretion. As for the second exception, “[t]o say that this exception is
extremely narrow is to understate the issue.” Lloyd v. United States, 407 F.3d 608, 614
(3d Cir. 2005). To meet the exception, Hopkins must show that Setser “requires the
observance of ‘those procedures that . . . are implicit in the concept of ordered liberty.’”
Teague, 109 U.S. at 307. The rule from Setser, which is not constitutionally derived,
does not meet this high bar. Accordingly, the rule from Setser is not retroactive and
Hopkins may not rely on it for relief under § 2255.
                                             9
possession of the firearm, whereas the federal conviction related only to the crack

cocaine. Because it is likely that a federal sentencing court would have wanted to ensure

that Hopkins was separately punished for these separate offenses, it is likely that the court

would have ordered its sentence to run consecutive to the future state sentence.

       Moreover, a sentencing court would likely have found a consecutive sentence

appropriate here in light of the nature of Hopkins’s conduct and criminal history. As the

sentencing court noted, Hopkins’s crimes were violent, he had previously escaped from

the Work Release Center, he had been undeterred by previous punishments, and he

presented a serious risk of recidivism. Thus, Hopkins would have likely received a

consecutive sentence even without counsel’s alleged error and he cannot show that he

was prejudiced by his counsel’s failure to request a concurrent sentence.

                                             IV

       For all of these reasons, we will affirm.




                                             10
