AL: Effective assistance of counsel doesn’t require defense counsel to forecast changes in 4A law

Defense counsel moved to suppress BAC results, but not on Fourth Amendment grounds. The motion was heard and denied. Now defendant claims ineffective assistance for failing to make a Fourth Amendment claim, too. The court finds that the motion was plausible but would have been denied at the time in any event. Defense counsel is not required to forecast changes in Fourth Amendment law to be effective. McCoy v. State, 2023 Ala. Crim. App. LEXIS 5 (Feb. 10, 2023):

We likewise hold that a defendant’s counsel cannot be deemed ineffective for failing to raise a novel claim that hinges on a legal question of first impression. Although a particularly creative and adept attorney might raise such a claim, the Strickland test “has nothing to do with what the best lawyers would have done” or “even what most good lawyers would have done.” Grayson v. Thompson, 257 F.3d 1194, 1216 (11th Cir. 2001) (citation omitted). Instead, Strickland requires “only a ‘”reasonably competent attorney,”‘” which is to say that it “does not guarantee perfect representation,” Harrington v. Richter, 562 U.S. 86, 110 (2011) (quoting Strickland, 466 U.S. at 687), or even “ideal” representation. Mickens v. Taylor, 240 F.3d 348, 363 (4th Cir. 2001). See also United States v. Valas, 40 F.4th 253, 260 (5th Cir. 2022) (“[T]he Sixth Amendment entitles a criminal defendant to reasonable, but not perfect, representation of counsel.” (citation omitted)). To hold that a defendant’s counsel renders ineffective assistance by failing to raise a novel claim that hinges on a legal question of first impression would be to require representation that goes beyond that which is reasonable and to require representation that begins to approach perfection.

In this case, the Fourth Amendment claim that McCoy argues his counsel should have raised might ultimately prove to have merit. To be clear, we need not and do not express an opinion on that claim at this time. For our purposes in this case, it is sufficient to note that the threshold legal question upon which that claim hinges has not been answered by any controlling authority. Thus, McCoy’s counsel cannot be deemed ineffective for failing to raise that Fourth Amendment claim, and his counsel did raise reasonable arguments in support of suppressing the BAC test results. See United States v. Conner, 456 F. App’x 300, 307 (4th Cir. 2011) (noting, in rejecting an ineffective-assistance-of-counsel claim alleging that counsel had failed to raise a specific argument with respect to a certain issue, that “there were many good [arguments] that [counsel] did make” with respect to that issue). Accordingly, the circuit court did not err by denying McCoy’s ineffective-assistance-of-counsel claim. Although the circuit court denied that claim for a different reason, we may affirm that court’s ruling if it is correct for any reason. Taylor v. State, 157 So. 3d 131, 146 (Ala. Crim. App. 2010).

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