D.D.C.: In motion to withdraw plea, waived motion to suppress was arguable and IAC

Here, failure to file a motion to suppress on the obtaining defendant’s passcode for his cell phone was ineffective assistance of counsel. At this point, it was debatable, and it should have been raised. The government had the phones, and defendant expressed a desire to consult with counsel but he couldn’t because they had the phones. The court permits defendant to withdraw his guilty plea. United States v. Raymond, 2022 U.S. Dist. LEXIS 195133 (D.D.C. Oct. 26, 2022):

Accordingly, the Court finds that the first Strickland prong is satisfied insofar as there are viable concerns regarding the manner in which the warrant was executed that should have been apparent to or investigated by prior counsel, and furthermore, the strategic use of this information should have been explored by counsel with Mr. Raymond.

. . .

All of these aforementioned concerns lead the Court to conclude that Defendant has identified viable challenges related to the manner in which the warrant was executed and his cell phones were seized, which should have been discussed with him by counsel. In the context of Defendant’s Motion to Withdraw Plea, this Court found previously herein that Defendant’s prior counsel did not meet an objective standard of reasonableness when they failed to investigate, consider, research, or explain to Mr. Raymond these issues surrounding the seizures of his phones. Nor did “Mr. Raymond’s counsel … raise these issues with the government, or seek to use them in plea negotiations, much less seek suppression” of the evidence. Def.’s Reply, ECF No. 151 at 5. This Court agrees with Mr. Raymond that this “plainly deficient performance [was] outside the ‘range of competence demanded of attorneys in criminal cases.'” Def.’s Reply, ECF No. 151, at 5-6 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970)). The question remaining before this Court is whether that deficient performance prejudiced Mr. Raymond to the extent that he would have elected to proceed to trial rather than accepting a plea.

. . .

… Accordingly, the Court finds convincing Mr. Raymond’s argument that he was prejudiced insofar as his ability to make a voluntary and intelligent decision regarding all his options before pleading guilty was hindered. The Court concludes therefore that the second prong of Strickland has been met, and Mr. Raymond’s plea is tainted by ineffective assistance of counsel.

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