OH8: Malpractice ptf already lost on the merits of Franks claim in direct criminal appeal, defense counsel didn’t commit malpractice handling it

Plaintiff is an inmate pro se pursuing a legal malpractice claim against his criminal defense counsel. The defendant lawyer gets judgment on the pleadings based on the fact the conviction was affirmed on the ground that the defense counsel’s challenge to the search warrant was rejected on the merits of a Franks claim. Thus, defense counsel couldn’t have committed malpractice. [Note that the court does not mention any issue preclusion.] Johnson v. Robey, 2020-Ohio-2, 2020 Ohio App. LEXIS 2 (8th Dist. Jan. 2, 2020):

[*P29] In addition, although Johnson claimed the affidavit contained materially false and misleading statements or omissions, we underscored that search warrant affidavits enjoy a presumption of validity. Johnson at ¶ 9, citing Sheron, 8th Dist. Cuyahoga No. 98837, 2013-Ohio-1989, ¶ 29, citing Roberts, 62 Ohio St.2d at 178, 405 N.E.2d 247. We concluded that Johnson failed to make a substantial preliminary showing of the knowing, intentional, or reckless inclusion of a false statement, or establish that, without the false statements, the warrant “affidavit is unable to support a finding of probable cause.” Johnson at ¶ 32 citing Roberts, 62 Ohio St.2d at 178, 405 N.E.2d 247, and Franks, 438 U.S. at 155, 98 S.Ct. 2674, 57 L.Ed.2d 667.

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[*P31] Based on the foregoing, we can find no evidence that Robey failed to use his best professional judgment in determining the most successful tactics to represent Johnson in his direct appeal. There was no breach of duty or obligation and Robey did not fail to conform to the standard required by law. As a result, construing all material allegations in the pleadings and all reasonable inferences that can be drawn therefrom in favor of Johnson, we find that Johnson can prove no set of facts in support of his claim that would entitle him to relief. As a result, the trial court did not err in dismissing his complaint.