Defendant established a failure of performance of defense counsel in his 2255 for not filing a motion to suppress on guest standing. He didn’t file a motion to suppress solely because defendant said he didn’t “live at” his girlfriend’s place, but the proof would have shown, if he inquired, that defendant would likely have guest standing. This was objectively unreasonable performance. Another hearing will be set to determine Strickland prejudice to the defendant. United States v. Edmond, 2016 U.S. Dist. LEXIS 103738 (N.D. Ill. Aug. 7, 2016):
The government also contends that because Edmond was not physically present at the apartment at the time of the search, he lacked standing. This argument is unsupported. The Court is unaware of any Supreme Court or Seventh Circuit case—and the government has cited none—suggesting that one’s standing to challenge a search depends on physical presence at the time and place of the search. Is the government actually suggesting that if the houseguest in Olson had gone out to get coffee, the government could have swooped in and searched his room without a warrant or his consent, on the ground that he wasn’t there at that moment? A rule to this effect would make no sense. A homeowner has standing to challenge the search of his home even if he does not happen to be there at the time of the search; a houseguest who has standing under Olson likewise can challenge a search even if he does not happen to be there at the time.
The record contains no evidence that defense counsel did legal research regarding the standing issue and determined, after analyzing the case law, that Edmond could not establish standing. Indeed, there is no evidence that he did any legal research on the issue at all. Rather, counsel’s testimony is that he made his decision not to file a motion to suppress based exclusively on his understanding that Edmond did not “live at” his girlfriend’s apartment at the time of the search. That, as the Court has stated, is not the applicable legal standard. Based on the evidence in the record, counsel’s decision not to file a motion to suppress was premised on a misunderstanding of the law. The Court finds that counsel’s failure to file the motion was objectively unreasonable.