W.D.Tenn.: No IAC to not challenge search where standing doubtful and it distanced defendant from control of the place searched

2255 petitioner’s co-defendant prevailed on a motion to suppress a search, and petitioner’s trial counsel didn’t file one because it was apparent there wasn’t standing. Based on the petitioner’s statements to counsel, it was reasonable to conclude that there was no standing, and it was a reasonable trial strategy to distance himself from the premises at trial. Nance v. United States, 2013 U.S. Dist. LEXIS 135300 (W.D. Tenn. September 23, 2013):

Finally, it was not an unreasonable strategic decision to forego the filing of a motion to suppress and, instead, to try the case with a strategy of distancing Nance from 228 Shelby. Viewed in hindsight, that strategy was partially unsuccessful, as Nance was convicted of violating 18 U.S.C. § 922(g). Nance was acquitted of the drug-trafficking charge arising from the crack cocaine in McPhearson’s pocket and of the § 924(c) charge. However, it is important to recall that this Court’s decision on McPhearson’s suppression motion did not issue until three days before Nance’s trial, and the decision of the Court of Appeals affirming that decision was issued in 2006, after Nance had been tried and convicted. The decision on the suppression motion, and on whether the police were entitled to rely in good faith on the affidavit of probable cause, presented close questions, as demonstrated by the dissent in the Sixth Circuit on the Government’s appeal of the decision on McPhearson’s suppression motion. It was not clear, at the time of trial, that even McPhearson would ultimately prevail on the motion to suppress.