03-1507 Owens v. U.S.

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“The right to counsel is intended to place a criminal defendant in the approximate position that he would occupy if he were learned in the law and could thus defend himself effectively. Had Owens been learned in the law he would have admitted that it was his house that was searched, gotten the evidence found there suppressed, and been acquitted because there was negligible evidence of his guilt other than what was found in the search of the house. The ‘prejudice’ essential to a violation of the Sixth Amendment right to the effective assistance of counsel is not being convicted though one is innocent, although that is the worst kind; it is being convicted when one would have been acquitted, or at least would have had a good shot at acquittal, had one been competently represented.

“Holman is further undermined by the subsequent Supreme Court decisions of Glover v. United States, 531 U.S. 198 (2001), and Williams v. Taylor, 529 U.S. 362 (2000). Glover rejected a rule that this court had adopted in Durrive v. United States, 4 F.3d 548, 550-51 (7th Cir. 1993), a cousin of Holman, to the effect that an error by counsel that resulted in a higher sentence for his client did not violate the right to effective assistance of counsel unless the higher sentence was unfair. Williams is explicit that the test of prejudice to be used in applying the standard of the Strickland case for ineffective assistance of counsel is not whether it would somehow offend fairness (a standard independently objectionable because of its vagueness) to allow the judgment to stand despite the defense lawyer’s incompetent performance but whether that performance deprived his client of a ‘substantive or procedural right to which the law entitled him.’ Williams v. Taylor, supra, 529 U.S. at 392-93. Holman and Owens had no right to use perjured testimony (Nix v. Whiteside), but they had every right to suppress evidence that had been obtained in violation of the Fourth Amendment.”

Reversed and Remanded.

Appeal from the United States District Court for the Southern District of Indiana, McKinney, J., Posner, J.