S.D.Ga.: Defendant not entitled to new counsel where appointed counsel wouldn’t file a frivolous motion to suppress

Defendant’s motion for appointment of new counsel because defense counsel refused to file a motion to suppress is denied. The motion was patently frivolous. Defendant was detained by Home Depot employees for shoplifting, and they removed a gun from him. That does not implicate the Fourth Amendment. [Even so, it would be valid as a search incident.] United States v. Cooper, 2015 U.S. Dist. LEXIS 45524 (S.D. Ga. April 7, 2015):

Defendant is not entitled to new counsel simply because he is unhappy with counsel’s representation, even where counsel refuses to file patently frivolous motions requested by Defendant. Quite simply, a lawyer does not act either ineffectively or unprofessionally by declining to pursue arguments that have little or no chance of success. See, e.g., Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (“[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.”); Knowles v. Mirzayance, 556 U.S. 111, 126-27, 129 S. Ct. 1411, 173 L. Ed. 2d 251 (2009) (the law does not require counsel to raise every available non-frivolous defense); Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001) (counsel is not ineffective for failing to raise a non-meritorious objection); United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992) (failure to raise meritless issues cannot prejudice a client); Card v. Dugger, 911 F.2d 1494, 1520 (11th Cir. 1990) (counsel is not required to raise meritless issues); Iron Wing v. United States, 34 F.3d 662, 665 (8th Cir. 1994) (movant not prejudiced by counsel’s failure to file motion to suppress that would have been denied); James v. Borg, 24 F. 3d 20, 27 (9th Cir. 1994) (counsel’s failure to make futile motions does not constitute ineffective assistance); United States v. Hart, 933 F.2d 80, 83 (1st Cir. 1991) (counsel is not required to waste the court’s time with futile or frivolous motions). Because counsel has represented Defendant both effectively and professionally, and will continue to do so during the pendency of any appeal, Defendant’s requests for new counsel (Doc. 57; Doc. 59; Doc. 71) are DENIED.