Ineffective Assistance of Counsel
Facts: In a petition for post-conviction relief, Defendant contended his trial attorney was ineffective for failing to move to suppress his statement on Fourth Amendment grounds (although the trial attorney did move to suppress on Fifth Amendment grounds).
Intermediate Decision: The intermediate court affirmed the conviction, holding that Defendant could not establish deficiency because he could not show a Fourth Amendment challenge would have been successful. Moreover, he could not establish prejudice because he could not show the outcome would have been different “given the overwhelming proof of his guilt.”
Review Granted: June 17, 2021. The Supreme Court’s order granting review stated: “The Court is particularly interested in the applicable standard of review, including the petitioner’s burden to establish prejudice when the petitioner alleges counsel was constitutionally ineffective for failing to file a motion to suppress or, as here, for failing to include a particular ground in the motion to suppress.”
Prediction: Ben thinks the Supreme Court will affirm and clarify that a post-conviction petitioner challenging an un-filed motion (or ground within a motion) must show a reasonable probability the motion would have been granted and that the verdict would have been different without the challenged evidence.