Kirklin v. U.S.

Dist. Ct. did not err in denying defendant’s habeas petition challenging his 171-month term of incarceration, even though defendant alleged that his trial counsel was ineffective for failing to object to Dist. Ct.’s consideration of fact that defendant had brandished firearm in violation of section 924(c)(1)(A) as sentencing factor as opposed to element of offense that required determination by jury. At time of sentencing hearing, Sup. Ct. decision in Harris, 535 U.S. 545 allowed Dist. Ct. to consider defendant’s brandishing of firearm as sentencing factor, even though Sup. Ct. in Alleyne, 568 U.S. 936, subsequently overruled Harris and found that brandishing of firearm is element of conduct criminalized by instant seven-year mandatory minimum sentence that must be determined by jury beyond reasonable doubt. Yet, defendant could not show that his counsel was ineffective for failing to object to Dist. Ct.’s resolution of brandishing of firearm issue, since counsel was not required to anticipate overturning of Harris. Also, claims of ineffective assistance of counsel cannot be resolved based on hindsight and assumption that existing precedent would be overruled.