Nichols v. United States

OPINION

ALICE M. BATCHELDER, Circuit Judge.

We granted en banc review to decide an important constitutional question: whether — and if so, under what conditions — a criminal defense attorney renders “deficient performance” under Strickland’s ineffective-assistance-of-counsel rubric by failing to preserve a future-change-in-the-law argument in the hope that the Supreme Court will strike down the existing law while that defendant’s case is still pending on direct appeal.

But, because this particular defendant cannot prevail on his claim of ineffective assistance of counsel in any event, inasmuch…