CA6: Deferring suppression motion for successful 403 objection was valid strategic decision and not IAC

Defense counsel made an [exceedingly] valid strategic decision in not as aggressively pursuing a suppression motion and successfully arguing Rule 403 prejudice. Tankesly v. Mills, 491 Fed. Appx. 649 (6th Cir. 2012):

To the extent that any doubt remains about whether trial counsel sought an oral hearing on the motion, we find two other deficiencies in Petitioner’s claim. First, counsel made a valid strategic choice in his method of challenging the introduction of the undergarments. In the course of deciding whether counsel performed deficiently, we take care not to “second-guess” defensible strategic decisions that ultimately fail. Strickland, 466 U.S. at 688. A defensible strategic choice “made after thorough investigation of law and facts relevant to plausible options” is rarely a basis for habeas relief. Id. at 690. Without derogating the importance of Petitioner’s Fourth Amendment rights, the practical harm resulting from the collection of the undergarments was not their seizure outside the scope of the warrant but their admission into evidence during his trial. Counsel made the decision to challenge the state’s attempt to introduce the undergarments under Tennessee Rule of Evidence 404(b). He did so by vigorously arguing that the undergarments were unduly prejudicial. See Tenn. R. Evid. 403. The fact that the Tennessee Court of Criminal Appeals agreed with defense counsel’s argument demonstrates its strength. See Tanksley, 2000 Tenn. Crim. App. LEXIS 803, 2000 WL 1521475, at *7. We have explained that a defense attorney may have “several possible arguments available” and may be forced to pursue the one “most likely to succeed or [that] offers the greatest possible return” for the defendant. See Cowans v. Bagley, 639 F.3d 241, 250 (6th Cir. 2011). The record demonstrates that counsel surveyed the options available for excluding the undergarments and decided that the Rule 403 challenge was the strongest line of argument. A valid decision of this sort is “virtually unchallengeable.” Strickland, 466 U.S. at 690. Had the Fourth Amendment argument been the only avenue available to counsel, and had counsel failed to explore that avenue for suppressing the evidence, our analysis would be different. But even if Petitioner’s Fourth Amendment argument was strong, counsel’s decision to pursue another strong argument was a decision “within the wide range of reasonable professional” competence. Id. at 689.

Second, while we are not bound by the Tennessee Court of Criminal Appeals’ harmlessness conclusion, we agree with that court that Petitioner was not prejudiced by the undergarments because the other evidence against him was strong. Petitioner contends that the admission of the undergarments prejudiced his defense, because, in the words of trial counsel, the undergarments “had a chilling [e]ffect on the jury” and undercut the strategic benefit he gained when the victim did not verbally identify Petitioner as her assailant in court. We conclude differently.

Petitioner’s trial was not reasonably likely to turn out better for him if counsel had argued his motion to suppress at a separate hearing and if the undergarments had been suppressed. See Strickland, 466 U.S. at 694. …