                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-21-2009

Brennan v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2988




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"Brennan v. USA" (2009). 2009 Decisions. Paper 1514.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1514


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                                                        NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                      No. 07-2988
                                     _____________

                                ROBERT E. BRENNAN,
                                          Appellant

                                             v.

                            UNITED STATES OF AMERICA




                    On Appeal from the United States District Court
                               for the District of New Jersey
                              District Court No. 04-cv-04719
                   District Judge: The Honorable Garrett E. Brown, Jr.


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   April 17, 2009

          Before: MCKEE, SMITH, and VAN ANTWERPEN, Circuit Judges

                                  (Filed: April 21, 2009)


                                         OPINION


SMITH, Circuit Judge.

       Appellant Robert E. Brennan petitioned the District Court for habeas relief under

28 U.S.C. § 2255 claiming that his trial and appellate counsels were ineffective. The

District Court denied his petition. We granted Brennan’s request for a certificate of

                                             1
appealability under 28 U.S.C. § 2253(c)(1). Since Brennan has failed to demonstrate that

he was prejudiced by his counsels’ allegedly deficient performance, we will affirm the

District Court’s decision.1

       To prevail on a claim of ineffective assistance of counsel, Brennan must

demonstrate “(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) (citing

Strickland v. Washington, 466 U.S. 668, 687 (1984)). We need not decide whether

Brennan’s counsels were deficient if it is clear that Brennan has not shown any prejudice.

See Strickland, 466 U.S. at 697 ( “If it is easier to dispose of an ineffectiveness claim on

the ground of lack of sufficient prejudice, which we expect will often be so, that course

should be followed.”).

       Here, Brennan claims that his trial and appellate counsels were ineffective because

they failed to invoke Apprendi v. New Jersey, 530 U.S. 466 (2000), at his sentencing and

direct appeal despite his requests that they do so. Brennan, however, does not argue that

an Apprendi challenge would have been successful before the trial or appellate courts.

Instead, Brennan asserts that “[h]ad the Apprendi issue been preserved by Brennan’s trial

and appellate counsel (as he requested), it is likely that the Supreme Court would have

considered the issue just as the Court did in [Blakely v. Washington, 542 U.S. 296 (2004)]




       1
        The District Court had jurisdiction under 28 U.S.C. § 2255, and we have
jurisdiction under 28 U.S.C. § 2253. Since the District Court did not hold an evidentiary
hearing, we review its legal conclusions de novo. Outten v. Kearney, 464 F.3d 401, 413
(3d Cir. 2006).

                                              2
. . . .” (Br. for Appellant at 20.) Therefore, to show prejudice, Brennan must

demonstrate a reasonable probability that, but for his counsels’ deficient performances,

the Supreme Court would have granted his petition for certiorari. See Strickland, 466

U.S. at 694 (“The defendant must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.”).

       We recognize that to show prejudice, Brennan “need not show that counsel’s

deficient performance more likely than not altered the outcome in the case—rather, he

must show only a probability sufficient to undermine confidence in the outcome.”

Thomas v. Varner, 428 F.3d 491, 502 (3d Cir. 2005) (internal quotations and citations

omitted). We also acknowledge that “[t]his standard is not a stringent one.” Id.

Nonetheless, Brennan bears the burden of demonstrating prejudice. Fountain v. Kyler,

420 F.3d 267, 275 (3d Cir. 2005). In our view, he has come up short.

       According to Brennan, the fact that the Court granted certiorari in Blakely two

weeks after it denied his petition demonstrates a likelihood that the Court would have

granted his petition had he preserved the Apprendi issue. We disagree. While Blakely

concerned the post-Apprendi constitutionality of a state court’s sentencing procedure, see

542 U.S. at 299–301, Brennan was subject to the federal sentencing regime. This is a

significant difference. At the time it granted certiorari in Blakely, the Court exhibited no

signs that it was also ready to consider Apprendi’s effect on federal sentencing. Indeed,

Blakely explicitly disclaimed any applicability to the Federal Sentencing Guidelines. See

542 U.S. at 305 n.9 (“The Federal Guidelines are not before us, and we express no


                                              3
opinion on them.”). It was not until the following term that the Court demonstrated a

willingness to confront the Apprendi issue that Brennan claims he would have raised had

it been preserved. See United States v. Booker, 543 U.S. 220, 229 (2005) (noting that in

the Government’s petition for certiorari, it “ask[ed] us to determine whether our Apprendi

line of cases applies to the Sentencing Guidelines, and if so, what portions of the

Guidelines remain in effect”).

       “[A] writ of certiorari is granted or refused in the exercise of a sound discretion.”

Phila. & Reading Coal & Iron Co. v. Gilbert, 245 U.S. 162, 165 (1917). Its grant is a rare

event.2 Here, Brennan can only speculate that, had he preserved the Apprendi issue, his

direct appeal would have been among those select few. This is not enough to show

prejudice. See Baker v. Barbo, 177 F.3d 149, 154 (3d Cir. 1999) (holding that “totally

speculative” arguments as to prejudice did not show a “a probability sufficient to

undermine confidence in the outcome”). Therefore, we will affirm the District Court’s

decision to deny Brennan’s petition for habeas relief.3




       2
        According to one publication, those who petitioned the Supreme Court for
certiorari in the same year that Brennan did were successful a mere 1.1% of the time: in
the 2003 term, the Court granted only 87 of the 7,784 petitions that it considered. See The
Supreme Court, 2003 Term: The Statistics, 118 Harv. L. Rev. 497, 504 (2004).
       3
        We also reject Brennan’s claim that the District Court abused its discretion in
declining to grant an evidentiary hearing because the motions, files, and records of the
case conclusively show that Brennan is not entitled to relief. See Lilly, 536 F.3d at 195.

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