NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 17-1539 _____________

UNITED STATES OF AMERICA

v.

JAMAEL STUBBS, Appellant ______________

Appeal from the United States District Court for the Middle District of Pennsylvania (District Court No. 1-12-cr-00009-004) District Judge: Hon. Christopher C. Conner ______________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) July 12, 2018 ______________

Before: McKEE, VANASKIE, and RESTREPO, Circuit Judges.

(Opinion filed: December 28, 2018)

_______________________

OPINION _______________________

 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent. McKEE, Circuit Judge.

A jury convicted Jamael Stubbs of using a firearm during a crime of violence in

violation of

(c)(1)(A)(ii), and brandishing a firearm in relation to a crime

of violence in violation of

(c)(1)(A)(ii). We affirmed the conviction on

direct appeal.1 Thereafter, the District Court denied his pro se motion seeking to vacate

his conviction and sentence under

. However, we granted a certificate

of appealability on the questions of whether trial counsel rendered ineffective assistance

by failing to preserve either a sentencing challenge or a constructive amendment claim

under Alleyne v. United States.2 For the reasons that follow, we will affirm.

I.

In Strickland v. Washington,3 the Supreme Court “established the familiar two

prong test for evaluating ineffective assistance of counsel claims, under which [a

defendant] must first show that the counsel's performance was deficient and, second, that

the deficient performance was prejudicial to the defendant.”4

“To meet the first prong, counsel's performance must fall ‘below an objective

standard of reasonableness considering all the circumstances.’”5 “Counsel’s performance

is deficient only ‘when counsel made errors so serious that counsel was not functioning as

the ‘counsel’ guaranteed . . . by the Sixth Amendment.’”6 In evaluating the conduct from

1 United States v. Stubbs,

(3d Cir. 2014). 2

(2013). 3

(1984). 4 McKernan v. Superintendent Smithfield SCI,

(3d Cir. 2017). 5

(quoting Jacobs v. Horn,

(3d Cir. 2005). 6

(quoting McBride v. Superintendent, SCI Houtzdale,

(3d Cir. 2012).

2 counsel’s perspective at the time, “a court must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.”7

The inquiry under the prejudice prong is guided by “whether there is a reasonable

probability that, absent the errors, the factfinder would have had a reasonable doubt

respecting guilt.”8 Thus, a defendant is required to demonstrate “that the decision reached

would reasonably likely have been different absent the errors.”9

II. Alleyne.

Stubbs was convicted for violating

(c)(1)(A), which provides in

pertinent part that anyone who “uses or carries a firearm” in relation to a “crime of

violence” shall:

(i) be sentenced to a term of imprisonment of not less than 5 years; (ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and (iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

Although Stubbs’s indictment did not charge him with the separate element of brandishing

a firearm, the jury found that Stubbs or a coconspirator “did knowingly carry, use, and

brandish a firearm during and in relation to a crime of violence, namely bank robbery, or

aided and abetted another in carrying, using and brandishing a firearm during and in

relation to a crime of violence . . . .”10

7 Strickland,

. 8

. 9

.

(emphasis added).

3 Alleyne dealt with the same statute mentioned above and was argued on January 14,

2013, two weeks before the start of Stubbs’s trial. The Supreme Court decided the case on

June 17, 2013, eighteen days after Stubbs was sentenced. There, the Supreme Court held

that “[w]hen a finding of fact alters the legally prescribed punishment so as to aggravate it,

the fact necessarily forms a constituent part of a new offense and must be submitted to the

jury.”11 The Court in Alleyne determined that the “brandishing” provision must be

charged in the indictment and proved to the jury beyond a reasonable doubt.12

We decided Stubbs’s direct appeal after the Supreme Court issued its Alleyne

decision. We held that Stubbs’s brandishing conviction constituted Alleyne error, but we

affirmed the conviction and sentence “[b]ecause there was sufficient evidence to convict

him of brandishing a firearm[,] and [concluded that] the seven-year sentence did not

constitute reversible plain error.13

The issue before us now is not whether an Alleyne error occurred, but rather

whether Stubbs’s trial counsel was ineffective for failing to preserve an Alleyne sentencing

challenge despite the fact Alleyne had not yet been decided when such an objection could

have been raised.

We have long held that “there is no general duty on the part of defense counsel to

anticipate changes in the law.”14 At the time of Stubbs’s trial, the law clearly established

11 Alleyne,

. 12

. 13 Stubbs,

. 14 Gov’t of Virgin Islands v. Forte,

(3d Cir. 1989) (citing Morse v. Texas,

, 772 n.2 (5th Cir. 1982)); United States v. Davies,

(3d Cir. 2005).

4 that the brandishing and discharge factors may be found by the court at sentencing, and

need not be charged in an indictment or submitted to the jury.15 In order for Stubbs to

overcome the deficient performance prong under Strickland, he bears the burden of

proving that his counsel knew (or should have known) that Alleyne was pending and that it

might have an impact on his case but chose not to raise the objection for reasons unrelated

to strategy. Stubbs fails to meet this burden. Trial counsel’s failure to object was

consistent with the law at the time of trial and an attorney cannot be deficient for failing to

predict changes in the law.16

While trial counsel should have been aware of Alleyne and its potential affect,

given our standard of review, we cannot say that his failure to object rises to the level

required to clear both the hurdles imposed under habeas relief as well as the deference

afforded to trial counsel’s stewardship.17

Because we find that Stubbs cannot defeat the deficient performance prong under

Strickland, we need not address the prejudice prong, “as both deficiency and prejudice

must be proven to support a valid claim for relief for ineffective assistance of counsel.”18

15 Harris v. United States,

(2002), overruled by Alleyne v. United States,

(2013). 16 See Forte,

. 17 See United States v. Hollis,

(3d Cir. 1977) (“[I]n habeas case the general rule is that the petitioner himself bears the burden of proving that his conviction is illegal.”); Whitney v. Horn,

(3d Cir. 2002) (Petitioner “must establish that trial counsel’s stewardship fell below an object standard of reasonableness”); see also Strickland,

(“Judicial scrutiny of counsel’s performance must be highly deferential.”). 18 United States v. Travillion,

(3d Cir. 2014) (citing Strickland,

).

5 Thus, we conclude trial counsel was not ineffective for failing to preserve a sentencing

challenge under Alleyne on Stubbs’s behalf prior to that decision being issued.

III. Stubbs makes a similar Sixth Amendment claim based on trial counsel’s failure to

preserve a constructive amendment challenge under Alleyne. Stubbs’s now argues that

brandishing was an element of a § 924(c) charge that must have been alleged in an

indictment. No such charge was in the indictment but it was included on the jury verdict

form and led to his ultimate conviction of brandishing.

An indictment is constructively amended when evidence, arguments, or the district

court’s jury instructions effectively “amend[s] the indictment by broadening the possible

bases for conviction from that which appeared in the indictment.”19 As noted above in

part II, Harris was the applicable law at the time of Stubbs’s trial. Under Harris, whether

or not brandishing was included in the indictment or the jury verdict form, the sentencing

judge would have the discretion to determine the applicable mandatory minimum

punishment despite a finding by the jury.20 Therefore, for the reasons stated above, we,

again, conclude Stubbs cannot show that his trial counsel’s performance was deficient.

Furthermore, there was no “broadening” of the overall charge against Stubbs, and

no constructive amendment of the indictment when brandishing was put to the jury.21

19 United States v. Lee,

(3d Cir. 2004). 20 See Harris,

. 21 See United States v. Vosburgh,

(3d Cir. 2010) (“If a defendant is convicted of the same offense that was charged in the indictment, there is no constructive amendment.”); see also Government Br. 36 (“The superseding indictment not limit [Stubbs’s] charge to any particular subsection . . . . While it did not explicitly state that

6 Accordingly, Stubbs’s trial counsel was not ineffective for failing to preserve a

constructive amendment challenge under Alleyne on Stubbs’s behalf prior to that decision

being issued.

IV. For the foregoing reasons, we will affirm the denial of Stubb’s section 2255

petition.

Stubbs was accused of “brandishing” a firearm, it did accuse him of using one, and the brandishing of a weapon is certainly a type of use.”).

7