E.D.Mich.: Defense counsel was completely unaware of Simmons rule and didn’t pursue suppression motion to keep def off stand

Defense counsel’s being unaware that suppression hearing testimony can’t generally be used at trial (the Simmons (1968) rule) was a failure of performance under Strickland and was not strategy. Defendant, however, would have lost the motion on the merits anyway, so the outcome of the trial wouldn’t be different, so no prejudice. United States v. Sain, 2014 U.S. Dist. LEXIS 179731 (E.D. Mich. October 23, 2014):

At the September 5, 2014 evidentiary hearing in this matter, Short testified that he “believe[d] … erroneously … that the judge would have ruled that the house was vacant and that Mr. Sain did not have standing to object to the search and seizure.” (Docket no. 59 at 26.) Despite Petitioner’s attempt to give him information and photographs in advance, Short acknowledged that he learned, at trial, that the house had gas, electricity, furniture, clothes in a closet, and a shoveled driveway, all of which could have been used in an attempt to persuade the Court that Petitioner had the right to privacy in the back bedroom of the Saratoga House as Tone’s guest. (Id. at 26-27.) He further acknowledged that even if he had lost the motion, the only “down side” would have been Petitioner “possibly … saying something that could be used against him at trial.” Id. at 28. Tellingly, however, Short testified that he was unaware of Supreme Court precedent that bars the use of evidentiary hearing testimony against a defendant at a later trial. (Id.) Therefore, the undersigned finds that Short’s decision to forgo a motion to suppress was not a strategic decision but was, as Petitioner argues, a result of confusion or misunderstanding of the law. See Moore v. Johnson, 194 F.3d 586, 610 (5th Cir. 1999) (holding that a decision is not “strategic” where counsel has “no idea” why the decision was made); Bean v. Calderon, 163 F.3d 1073, 1079 (9th Cir. 1998) (holding that a decision is not “strategic” where it was the result of “confusion” by counsel).

Nevertheless, regardless of whether Short’s decisions were adequate under the performance prong of Strickland, “[w]here defense counsel’s “failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice.” Ray v. U.S., 721 F.3d 758, 762 (6th Cir. 2013) (quoting Kimmelman, 477 U.S. at 375). It is here that Petitioner’s claim fails. Even assuming, arguendo, that the jury verdict would have been different absent the evidence found in the Saratoga House, Petitioner cannot “prove” that his Fourth Amendment claim “is meritorious.”