Category Archives: Ineffective assistance

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

Posted in Ineffective assistance | Comments Off on D.Md.: Credibility question shown on whether def counsel failed to call material witness at suppression hearing; hearing ordered

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

Posted in Burden of pleading, Emergency / exigency, Ineffective assistance | Comments Off on W.D.Mo.: Unaccounted for gun and likely presence of another inside was exigency for entry to look for it

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

Posted in Franks doctrine, Ineffective assistance | Comments Off on CA2: Nonmaterial error of fact in Title III application and SW for house didn’t merit Franks hearing

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

Posted in Ineffective assistance, Rule 41(g) / Return of property | Comments Off on FL5: Error to deny without a hearing a facially sufficient motion for return of property

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

Posted in Ineffective assistance | Comments Off on E.D.Tenn.: IAC claim has to allege facts and law that the unfiled motion to suppress would have been granted

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

Posted in Consent, Ineffective assistance | Comments Off on TN: Not IAC to strategically forgo motion to suppress rather than lose plea offer

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

Posted in Arrest or entry on arrest, Ineffective assistance, Qualified immunity | Comments Off on CA2: A material witness seized and never presented to a judge stated a claim; and no QI

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

Posted in Ineffective assistance, Warrant execution | Comments Off on 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

GA: Controlled buy by CI corroborates CI and is PC in itself

“‘Under the common sense approach to search warrants, a controlled buy strongly corroborates the reliability of the informant and shows a fair probability that the contraband would be found.’… Indeed, ‘even if the informant had no known credibility, the controlled … Continue reading

Posted in Ineffective assistance, Informant hearsay, Probable cause | Comments Off on GA: Controlled buy by CI corroborates CI and is PC in itself

MI: Inability to meet plain error standard on a 4A claim doesn’t preclude an IAC claim for it

The fact defendant on appeal couldn’t satisfy the plain error standard for a search and seizure claim doesn’t mean that he can’t show ineffective assistance of counsel on the same claim. An IAC claim requires a more developed record. People … Continue reading

Posted in Ineffective assistance | Comments Off on MI: Inability to meet plain error standard on a 4A claim doesn’t preclude an IAC claim for it

W.D.Pa.: Claim of “gross ineffective assistance of counsel” doesn’t overcome rights waiver in plea agreement

Defendant’s allegation of “gross ineffective assistance of counsel” for not properly litigating his motion to suppress doesn’t overcome the collateral rights waiver in the plea agreement. United States v. Kofalt, 2018 U.S. Dist. LEXIS 96560 (W.D. Pa. June 8, 2018):

Posted in Ineffective assistance | Comments Off on W.D.Pa.: Claim of “gross ineffective assistance of counsel” doesn’t overcome rights waiver in plea agreement

CA11: Def counsel wasn’t ineffective for not pursuing suppression motion after def admitted facts showing no standing

Defense counsel wasn’t ineffective for not adequately pursuing defendant’s motion to suppress because defendant admitted to counsel facts after the motion was filed that he had no standing at all. He provided that address as his address, but he was … Continue reading

Posted in Ineffective assistance, Standing | Comments Off on CA11: Def counsel wasn’t ineffective for not pursuing suppression motion after def admitted facts showing no standing