Category Archives: Ineffective assistance

PA: Trial court’s deciding to suppress based on an argument not made by def was error

Trial court’s deciding to suppress based on an argument not made by defendant was error. Commonwealth v. Jones, 2018 PA Super 208, 2018 Pa. Super. LEXIS 815 (July 17, 2018). Defendant argues in post-conviction proceedings against the trial court’s ruling … Continue reading

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NY3: Neutral and detached magistrate claim has to be preserved for appeal

Defendant’s claim that the issuing magistrate was not neutral and detached was not preserved for appellate review. And, in any event, it lacks merit because there was plenty of probable cause. People v. Schaefer, 2018 NY Slip Op 05235, 2018 … Continue reading

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OH11: Arrest warrant and knowing def home authorized entry to arrest

Officers had an arrest warrant for the defendant and they knew he was home. That was justification to enter. State v. Weaver, 2018-Ohio-2675, 2018 Ohio App. LEXIS 2898 (11th Dist. July 9, 2018). Defendant doesn’t allege any facts that his … Continue reading

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S.D.N.Y.: Realtime cell phone tracking SW issued with PC

The USPS developed probable cause that defendant was shipping drugs by mail with his own mini mailing service, creating his own mailing labels and having acquired plenty of USPS envelopes and postage to do it. When another suspicious package came … Continue reading

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D.Md.: Credibility question shown on whether def counsel failed to call material witness at suppression hearing; hearing ordered

Petitioner alleged enough to get a hearing on his 2255 that defense counsel didn’t call a material witness at the suppression hearing that would have created a credibility dispute with the officers as to the nature of the entry. Defense … Continue reading

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W.D.Mo.: Unaccounted for gun and likely presence of another inside was exigency for entry to look for it

Defendant was arrested outside his house, and a firearm expected to be on him was not found during his search incident. There was expected to be another person in the house, and that, coupled with the unaccounted for gun, was … Continue reading

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CA2: Nonmaterial error of fact in Title III application and SW for house didn’t merit Franks hearing

Nonmaterial error in inclusion of an erroneous fact in a wiretap application and search request for house didn’t require a Franks hearing. United States v. Osborne, 2018 U.S. App. LEXIS 17142 (2d Cir. June 25, 2018).* Defendant’s post-conviction claim defense … Continue reading

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FL5: Error to deny without a hearing a facially sufficient motion for return of property

Defendant’s motion for return of property was facially sufficient for a hearing, and the circuit court erred in denying it without a hearing. Peterson v. State, 2018 Fla. App. LEXIS 8861 (Fla. 5th DCA June 22, 2018). Defense counsel wasn’t … Continue reading

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E.D.Tenn.: IAC claim has to allege facts and law that the unfiled motion to suppress would have been granted

Defendant claims in his 2255 that defense counsel was ineffective for not filing a motion to suppress a search but does not even allege the grounds for it or that he would have had standing, and it appears he didn’t. … Continue reading

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TN: Not IAC to strategically forgo motion to suppress rather than lose plea offer

Defense counsel didn’t provide ineffective assistance of counsel where he didn’t file a motion to suppress because the prosecutor would withdraw the plea offer, and he concluded it wouldn’t be worth the risk. Wilson v. State, 2018 Tenn. Crim. App. … Continue reading

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CA2: A material witness seized and never presented to a judge stated a claim; and no QI

Plaintiff was held without a hearing as an alleged material witness, but never presented to a court. The district court granted qualified immunity, and the court of appeals reversed. Her rights were clearly established that she was entitled to be … Continue reading

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D.Utah: Def told his friend that police failed to seize something they were looking for in the search of his house, and that justified an obstruction enhancement under USSG 3C1.1

“The Presentence Reported noted that, after his arrest, Petitioner called an individual who was living at his home. Petitioner instructed this person to get rid of additional evidence that police had not found during the execution of the search warrant. … Continue reading

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