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Ineffective Assistance of Counsel

By: Derek Hawkins//September 7, 2020//

Ineffective Assistance of Counsel

By: Derek Hawkins//September 7, 2020//

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7th Circuit Court of Appeals

Case Name: Raymond Marling v. Frank Littlejohn, et al., Wabash Valley Correctional Facility

Case No.: 19-3077

Officials: EASTERBROOK, RIPPLE, and SCUDDER, Circuit Judges.

Focus: Ineffective Assistance of Counsel

After Raymond Marling was arrested, on a warrant, while driving his car, police in Indiana took an inventory of its contents. The trunk held a locked box. An officer opened the box with a screwdriver and found illegal drugs. Together with other evidence (including the fact that Marling was armed, despite felony convictions that made this unlawful), these drugs played a role in his convictions and 38-year sentence, which includes a 20- year enhancement for being a habitual criminal.

Marling’s lawyer asked the trial court to suppress the contents of the box, arguing that opening it was improper. That argument lost in the trial court and lost again on appeal. Marling v. State, 2014 Ind. App. Unpub. LEXIS 1305 (Sept. 30, 2014). He filed a collateral attack, this time arguing that his trial and appellate lawyers had furnished ineffective assistance by not presenting the best reasons for objecting to the box’s opening. He contended that counsel should have argued that opening his box damaged it, violating the police department’s policy. The post-conviction court held a hearing, took evidence, and rejected this contention. The court of appeals affirmed, concluding among other things that counsel’s omission was not prejudicial because the record did not show that the box had been damaged. 2018 Ind. App. Unpub. LEXIS 610 (May 25, 2018). But a federal district court issued a writ of habeas corpus, 2019 U.S. Dist. LEXIS 163777 (S.D. Ind. Sept. 24, 2019), ruling that a photograph in the record shows damage to the box’s lock. This meant, the judge stated, that the state court’s finding had been rebutted by clear and convincing evidence. 28 U.S.C. §2254(e)(1).

A factual mistake by a state court does not support collateral relief, unless a correction shows that the petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §2254(a). Ineffective assistance of counsel suffices, because it violates the Sixth Amendment (applied to the states by the Fourteenth). Indiana has assumed that failure of counsel at trial and on appeal to choose the best argument in support of a motion can violate the Sixth Amendment, despite many cases holding that it is essential to evaluate counsel’s overall performance rather than find a single error. See, e.g., Strickland v. Washington, 466 U.S. 668, 691–96 (1984); Williams v. Lemmon, 557 F.3d 534, 538–40 (7th Cir. 2009). Because Indiana has not made this potential argument we do not pursue it. See United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020). Still, it remains necessary to show that counsel’s decision was both substantively deficient and prejudicial. The state’s appellate court applied the Strickland standard, and our review of the outcome under §2254(d) has been called “doubly deferential”. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).

The judge included in his opinion a picture showing some damage to the box’s lock. That was enough, he thought, to establish the policy’s violation, even though Marling did not draw this picture to the attention of the state’s appellate court. Let us suppose that the judges should have examined the picture anyway. Still, the policy does not forbid all damage; it forbids unreasonable damage. This box was intact, and the lock could have been fixed or replaced. Why was the damage “unreasonable”? The judge did not say. Then there is the discretionary language in the General Order. The judge apparently understood Wells to forbid the use of discretion, such as evaluating when a potential for damage would be “unreasonable”. Yet the principal holding of Wells is that discretion about inventory searches is compatible with the Fourth Amendment. The Justices wrote: Nothing in South Dakota v. Opperman, 428 U.S. 364 (1976), or Illinois v. Lafayette, 462 U.S. 640 (1983), prohibits the exercise of police discretion so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity Wells, 495 U.S. at 3–4 (cleaned up), quoting from Colorado v. Bertine, 479 U.S. 367, 375 (1987). The officer who opened and inventoried the contents of this box acted within the scope of discretion granted by General Order 49. As Wells requires, discretion under the policy is unrelated to beliefs about the container’s contents. If the officer did too much (“unreasonable”) damage, that could have been the basis for a tort claim under state law. It is not a basis for a conclusion that the Fourth Amendment required the suppression of incriminating evidence. It follows that counsel did not violate the Sixth Amendment by omitting this line of argument.

Reversed

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.

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