S.D.N.Y.: 2255 petitioner succeeds in showing overlooked motion to suppress would have been granted

2255 petitioner makes his case that defense counsel was ineffective for not moving to suppress the impoundment and search of his car as illegally parked because it wasn’t. Counsel’s wife was seriously ill, and he was out of the office for two months which added to the problem. Still, if a motion to suppress had been filed, it likely would have been granted. United States v. Gladden, 2019 U.S. Dist. LEXIS 141483 (S.D. N.Y. Aug. 20, 2019):*

With the foregoing in mind, the Court concludes that Gladden’s trial counsel – despite the generally high quality of his advocacy – did not render effective assistance when he failed to timely seek suppression of the items taken from the Range Rover. Specifically, counsel’s failure to file a suppression motion was not a legitimate tactical decision, but rather the result of a failure to investigate. Counsel concededly was given the pertinent documents as early as January 25, 2008, and again on April 9, 2008, but, by his own admission, made little or no effort to review them to determine their import, let alone discuss them with his client or investigate further.

The Court recognizes, and is sympathetic to, the fact that counsel was beset at the time with dealing with the overriding issue of his wife’s serious illness; but, obviously, that cannot excuse a failure to investigate a matter of such importance. If counsel had been unable to dedicate the necessary time to investigating and moving for suppression, he could have applied to the Court for an adjournment, or even to be relieved. What he could not permissibly do, however, was ignore his duty to investigate whether there was a basis for suppression of the material seized from the vehicle. Cf. Morrison, 477 U.S. at 385 (“The trial record in this case clearly reveals that Morrison’s attorney failed to file a timely suppression motion, not due to strategic considerations, but because, until the first day of trial, he was unaware of the search and of the State’s intention to introduce the bedsheet into evidence.”).