N.D.Ga.: No IAC where def counsel didn’t argue nonbinding authority that likely wouldn’t be followed in this circuit

Defense counsel was not ineffective for not arguing a case from out of the circuit that would likely not be followed in this circuit. “Had counsel argued under precedent from other circuits that charges of child molestation did not justify a search for pictures or videos, there is no reasonable probability that his argument would have succeeded before this Court. This is so especially here when Movant sent nude pictures to the victim and discussed with the victim the possibility of taking pictures of each other.” Thus, there was also a factual basis for a search warrant for nude photos of underage persons. Lebowitz v. United States, 2014 U.S. Dist. LEXIS 181967 (N.D.Ga. December 23, 2014).

While the question is close, the court concludes there was probable cause for the stop and search of defendant’s car under the automobile exception and alternatively by consent. While defendant was in custody and hadn’t been warned of a right to refuse, it was still found voluntary. United States v. Moorer, 2014 U.S. Dist. LEXIS 182053 (N.D. Ohio February 13, 2015) (erroneous cite).*