E.D.Tenn.: Example of pleading requirement for 4A IAC of appellate counsel

Even assuming defense counsel was deficient in not presenting a search and seizure issue on appeal, defendant fails to show how the outcome would be different or that the appellate court would have reversed. Penney v. United States, 2013 U.S. Dist. LEXIS 165019 (E.D. Tenn. November 20, 2013):

Assuming for the sake of discussion that appellate counsel performed deficiently for failing to provide adequate argument, factual background, or citation to the record to allow the Sixth Circuit to give a meaningful review to the search and consent issues involved in the case, Penney has failed to carry his burden of establishing a reasonable probability that the result would have been different, as “[t]he likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 131 S. Ct. at 792.

Penney claims appellate counsel should have emphasized Ms. Bowman’s affidavit and made it a part of the appellate record. The Magistrate Judge concluded it deserved no credence, and Penny has submitted nothing from which the Court can infer the Sixth Circuit would have reached a different conclusion. Second he claims counsel should have emphasized that apparent authority to consent had to be based on what the officers knew prior to entering the house and reviewed those facts. Notably lacking, are the specific facts Penney claims appellate counsel should have discussed. Moreover, the appellate brief reflects counsel identified the pertinent facts and devoted a section to arguing Ms. Bowman lacked actual or apparent authority to authorize the search (Criminal Court File No. 407-4, pp. 3-8; 9-14).

Penney also claims appellate counsel failed to provide the details of the search and supporting facts, and cite to the record. Again, Penney has failed to provide the details of the search and supporting facts omitted by appellate counsel and the appellate brief includes the pertinent details of the search and supporting facts, and cites to the transcript of the motion to suppress (Criminal Court File No. 407-4, pp. 3-8). Penney challenges appellate counsel’s failure to make Officer Luck’s report part of the record, but as previously noted, Detective Sneed explained that both Ms. Bowman and Penney, subsequently recollected that she arrived at his house on Sunday and the Sixth Circuit considered that the parties had reconciled and Ms. Bowman had moved back in the day before (Criminal Court File No. 389, p. 12).

Finally, Penney complains that appellate counsel spent very little time discussing Petitioner’s demand that Ms. Bowman not be allowed into his residence; a fact he contends requires a finding of lack of good faith for conducting the search and apparent authority. Appellate counsel explained, in the appellate brief, that law enforcement had actual notice that the true owner of his residence had terminated any “mutual use” of the residence that Ms. Bowman had enjoyed prior to being evicted earlier that morning and Penney emphatically told the officers Ms. Bowman was no longer a welcome guest when he told them he wanted her “immediately removed” (Criminal Court File No. 407-4, pp. 9-14). The majority of the Court of Appeals for the Sixth Circuit apparently did not find the argument persuasive. After considering these claims individually and cumulatively, the Court is unable to conclude that had appellate counsel presented and emphasized this evidence in some other manner – a manner which Penney has failed to identify – there is a reasonable probability the Sixth Circuit would have granted him relief.

There simply is no evidence in the record from which the Court can infer Penney is able to demonstrate a reasonable probability of a different result on appeal. Accordingly, Penney will be DENIED relief on his claim that appellate counsel was ineffective.