D.N.J.: Habeas pet’r doesn’t show case outcome would be different if motion to suppress had been litigated

To prevail on a Fourth Amendment IAC claim, there are essentially three things to prove, not just two: (a) defense counsel failed to litigate a search issue (b) that not only would have prevailed on the search issue, (c) but also would have changed the outcome of the trial. Capers v. Davis, 2019 U.S. Dist. LEXIS 223614 (D. N.J. Dec. 20, 2019):

To demonstrate that counsel was ineffective for failing to request a Wade hearing, a petitioner “must show that he would likely have prevailed [in the hearing] and that, having prevailed, there is a reasonable likelihood that he would not have been convicted.” Harris v. Nogan, No. 14-5408, 2017 U.S. Dist. LEXIS 187587, 2017 WL 5451746, at *14 (D.N.J. Nov. 14, 2017) (quoting Thomas v. Varner, 428 F.3d 491, 502 (3d Cir. 2005) (alterations in original); see also Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986) (“Where 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.”) Mr. Capers has not made the necessary showing here.

For example, a Fourth Amendment issue may be apparent, but effectively not worth litigating because it wouldn’t change the outcome in light of other evidence in the case and essentially become a waste of valuable time in trial preparation. I’ve actually done that, and it’s discussed in the Treatise at § 60.19. Should the evidence even be suppressed? If you succeed, what happens with your case? Will it limit the defense? Will it mean nothing at all in the trial and be no more prejudicial than other evidence? This often can be purely a strategic choice for counsel.