Category Archives: Ineffective assistance

DE: Baggie of drugs hanging from pocket during valid traffic stop was in plain view

Defendant’s furtive movement in the truck when he was stopped was justification for ordering him out of it. The baggie of drugs hanging out of his pocket was then in plain view. Backus v. State, 2019 Del. LEXIS 32 (Jan. … Continue reading

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AR: Def can’t show IAC from counsel’s advice on motion to suppress and his decision to go to trial and risk jury sentencing

Defendant’s motion to suppress was denied and he went to trial on a possession/constructive possession case and lost at trial. The conviction was affirmed on appeal. Lane v. State, 2017 Ark. 34, 513 S.W.3d 230 (2017). On post-conviction, defendant could … Continue reading

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CA6: One doesn’t get a Franks hearing without a proper showing; it’s not the way to test the argument

Defendant’s Franks argument in the district court didn’t argue that probable cause would be lacking. The search warrant affidavit as a whole shows probable cause. “On appeal, Fuller does not contend that he made the requisite ‘substantial preliminary showing,’” and … Continue reading

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W.D.N.C.: Motion to suppress that denied all connection to car was denied for lack of standing

Defendant’s motion to suppress goes to the extreme of denying any connection to the vehicle searched in an apparent effort to not be linked at trial, and that means no standing. United States v. Littlejohn, 2018 U.S. Dist. LEXIS 214718 … Continue reading

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CA7: State law right of privacy as to another prison inmate isn’t within the 4A

On appeal from 1915A screening, plaintiff does not a show a Fourth Amendment claim to be free from other inmates stealing his stuff. Here it was letters from his girlfriend by his former cellie then the cellie wrote to her … Continue reading

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OH2: CSLI raised first in appeal reply brief isn’t timely; harmless on this record anyway

Defendant never raised CSLI until his reply brief on appeal after Carpenter came down, and a reply brief is too late. Even if he could have preserved the issue, the evidence was overwhelming and harmless. State v. Kennedy, 2018-Ohio-4997, 2018 … Continue reading

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CA2: 4A IAC claim not to be decided on direct appeal; not ripe

Alleged ineffective assistance claim of government’s obtaining a second DNA sample isn’t going to be considered on direct appeal. Bring it in a 2255. United States v. Lee, 2018 U.S. App. LEXIS 35221 (2d Cir. Dec 14, 2018). The legality … Continue reading

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CA6: 2255 argument that def counsel didn’t make “best arguments for suppression” fails; he’d still lose

“Maurice Carter pled guilty to a variety of sex crimes and received a twenty-year prison sentence. He now petitions for habeas relief. Carter alleges his attorneys were constitutionally ineffective for failing to make the best arguments for suppression of key … Continue reading

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CA6: Def’s IAC argument that suppression argument could have been better made fails because it wouldn’t prevail in any event

“Maurice Carter pled guilty to a variety of sex crimes and received a twenty-year prison sentence. He now petitions for habeas relief. Carter alleges his attorneys were constitutionally ineffective for failing to make the best arguments for suppression of key … Continue reading

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GA: Guest had standing but he was subject to owner’s consenting

Defendant had standing as an overnight guest, but he was subject to the consent of the owner. Here, the owner did. Doleman v. State, 2018 Ga. LEXIS 791 (Dec. 10, 2018). Defense counsel wasn’t ineffective for embracing the fact that … Continue reading

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OH6: Not having a full suppression hearing and limiting issues was sound strategy

Defense counsel’s strategy was to attack probable cause, and a full suppression hearing was to be avoided, because that would surely lose. That was sound strategy at the time. State v. Nettles, 2018-Ohio-4908, 2018 Ohio App. LEXIS 5237 (6th Dist. … Continue reading

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S.D.N.Y.: Failure to challenge CSLI before Carpenter wasn’t IAC

Defendant’s verdict was the day Carpenter was decided, and his defense lawyer hadn’t challenged the CSLI before that. Defense lawyers don’t have to forecast changes in the law. “ Even following Carpenter, the Second Circuit has declined to suppress cell … Continue reading

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