Robert PEACE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee, 253 F. App'x 133

SUMMARY ORDER Petitioner-appellant Robert Peace seeks review of an order of the District Court denying his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal. On appeal of a denial of a § 2255 motion, “we review a district court’s conclusions of law de novo but will accept its factual findings unless they are clearly erroneous.” Sapia v. United States, 433 F.3d 212, 216 (2d Cir.2005). The Supreme Court’s two-pronged test in Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), provides that in order to prove a Sixth Amendment violation for ineffective assistance of counsel, petitioner must show both (i) “that counsel’s representation fell below an objective standard of reasonableness ... under prevailing professional norms,” id. at 688, 104 S.Ct. 2052; and (ii) “that the deficient performance prejudiced the defense,” id. at 687, 104 S.Ct. 2052. Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir.2001) (applying the same test to claims of ineffective assistance of counsel on appeal).

Petitioner-appellant argues that his Sixth Amendment right was violated when his counsel, on direct appeal, failed to challenge his sentence based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We note that, at the time of his direct appeal, petitioner’s Apprendi argument was foreclosed by our decision in United States v. Luciano, 311 F.3d 146, 151 (2d Cir.2002) (concluding that where “the defendant’s sentence is within the otherwise applicable maximum, no violation of Apprendi has occurred”).

It was more than two years after appellate counsel filed the direct appeal that our court decided United States v. Gonzalez, 420 F.3d 111, 115-16 (2d Cir.2005) (holding that drug quantity is an element of an offense for the purposes of determining a mandatory minimum and, accordingly, must be found by a jury). We have repeatedly held, when assessing the “objective standard of reasonableness” component of Strickland, that counsel is “not required to ‘forecast changes or advances in the law.’ ” Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir.2001) (quoting Jameson v.

Coughlin, 22 F.3d 427, 429 (2d Cir.1994)); see also Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.1994). Therefore, we cannot say that appellate counsel’s failure to raise an Apprendi challenge was objectively unreasonable. The judgment of the District Court is AFFIRMED.