W.D.Wis.: Legal advice given before the right to counsel attaches can’t be IAC

Legal advice rendered before the right to counsel attaches with the initiation of adversarial proceedings cannot be the basis for an IAC claim. Ryan v. United States, 2014 U.S. Dist. LEXIS 135932 (W.D. Wis. September 19, 2014):

Petitioner’s withdrawal of all but two of his claims leaves him with no basis for relief, for two reasons. First, the allegedly ineffective advice given him when he was arrested cannot support a claim that counsel was constitutionally ineffective because the constitutional right to counsel does not attach until the initiation of adversarial criminal proceedings. Kirby v. Illinois, 406 U.S. 682, 689 (1972). When petitioner’s counsel advised him to cooperate with law enforcement, no adversarial criminal proceedings had been initiated.

Second, petitioner cannot show that his counsel was ineffective in not moving to suppress the marijuana seized from his plane unless he can show that the investigatory stop and subsequent search of his plane were illegal. He has not made that showing or argued that he needs to have an evidentiary hearing to adduce the evidence to support his claim.

The record evidence is more than sufficient to show that his counsel would have had no ground on which to move to suppress the marijuana seized from the plane.