E.D.Pa.: Defense counsel overlooked valid search issue, but no prejudice

2255 petitioner can show defense counsel clearly overlooked a meritorious search issue for the deficiency of the warrant in failing to show the things to be seized (Groh) and that the good faith exception would not have saved the warrant because it was clearly deficient and could not be relied up (Herring and Leon). While petitioner can succeed in showing a Strickland failure of performance, he can’t show prejudice because the item seized did not contribute much, if anything, to the verdict so the outcome wouldn’t be different. United States v. Graves, 951 F. Supp. 2d 758 (E.D. Pa. 2013):

In sum, this Court concludes that where a warrant is so facially deficient that the executing officers could not reasonably have presumed it to be valid, as in this case, the good faith exception does not apply. Such conduct is at a minimum, grossly negligent, and the benefits of deterring future misconduct outweigh the cost of excluding the evidence. This Court previously concluded that under the law at the time of Graves’s trial, the good faith exception would not have applied because of the facial deficiency in the warrant. Herring does not alter that conclusion. The evidence from the search of Neal’s home would have been suppressed on particularity grounds under either the state of the law at the time of trial or the current state of the law. Thus, Fretwell does not apply, and the Court will address the traditional Strickland prejudice prong.