D.Conn.: Def counsel’s memo to his own file regarding why 4A claim wasn’t further pursued was admissible in 2255 to show strategic basis

Defense counsel’s memo to his own file about his choice not to further pursue a GPS tracking issue that was fully litigated in a hearing was admissible in the 2255 to show the reasonable strategic basis for the decision. Corbett v. United States, 2019 U.S. Dist. LEXIS 168297 (D. Conn. Sept. 30, 2019):

Corbett also faults trial and appellate counsel for not raising a Fourth Amendment challenge to the government’s warrantless use of a GPS tracker on his car shortly before his arrest. Trial counsel were unaware of the issue during the motion to suppress stage. When they became aware of the use of the GPS, they moved for an evidentiary hearing. The trial court granted the motion and held the hearing on March 16, 2011. During the hearing, counsel extensively cross-examined two government witnesses regarding the circumstances of the GPS monitoring and of Corbett’s arrest. Afterward, trial counsel made the strategic decision not to argue that Corbett’s jailhouse confession had to be suppressed as fruit of the illegal search. This tactical choice can be seen in a portion of an internal memorandum by Corbett’s attorneys that Corbett filed as an exhibit (ECF No. 9-1 at 11). The memorandum, which dates from when the case was on appeal, demonstrates that appellate counsel considered whether to make an argument related to the GPS monitoring in light of a then-recent Supreme Court ruling but decided against it. The evidence shows that counsel considered at all stages how to proceed but determined that attacking the GPS monitoring — which took place after the crimes for which Corbett was charged occurred — was not a worthwhile tactic. Corbett has provided no reason to believe that this strategic decision fell outside the range of competent assistance to which he was entitled.

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