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Perry v. State12/10/1999
al matter, from establishing prejudice under the facts of this case, this matter would never have been remanded to this Court for further consideration. There would have been no point to it." Morrison, supra, 650 F. Supp. at 805.
Addressing the prejudice issue, the court noted the importance of the bedsheet as corroborating the testimony of the victim, which was riddled with inconsistencies. Because the State essentially conceded the illegality of the seizure, the Fourth Amendment violation was established. The trial Judge, it concluded, faced a close decision, and but for counsel's errors, the court found it highly probable that the evidentiary picture would have been very different. In the court's judgment, it was reasonably probable that, but for counsel's errors, the balance would have tilted in favor of Morrison's version. On that basis, which, in light of the later pronouncements in Lockhart may be an incorrect one, the court found prejudice in the particular case and granted the writ.
The Seventh Circuit Court of Appeals has embraced Justice Powell's view and held, expressly, that "under Strickland no prejudice exists when evidence gathered in violation of the Fourth Amendment is erroneously admitted at trial." Holman v. Page, 95 F.3d 481, 492 (7th Cir. 1996). "It is inconsistent with the function of the exclusionary rule," the court held, "to permit a criminal defendant on federal habeas review to claim prejudice because but for his counsel's incompetence on the suppression issue he would have gotten away with the crime." Id. at 491. That is not the kind of prejudice, it said, anticipated by Strickland. Exclusion of the evidence does not impact on the correctness of the verdict but rather "enhances the truthfinding process by permitting the consideration of valuable probative evidence." Id. See also United States v. Williams, 106 F.3d 1362 (7th Cir. 1997); Spreitzer v. Peters, 114 F.3d 1435 (7th Cir. 1997); United States v. Jones, 152 F.3d 680 (7th Cir. 1998).
To the best of our knowledge, the Seventh Circuit stands alone in that approach. The Eleventh Circuit Court of Appeals has taken an opposite approach. In Van Huynh v. King, 95 F.3d 1052 (11th Cir. 1996), a State prisoner complained on Federal habeas corpus about the failure of his trial counsel to move timely to suppress evidence seized from his wallet at the time of his arrest. Counsel claimed that the decision not to file a pre-trial motion was strategic; his goal was to create an appellate issue. Accepting that argument, the District Court denied relief. The Court of Appeals disagreed with that determination and held that counsel's performance was objectively unreasonable and therefore deficient - that no reasonable attorney would forego the litigation of a meritorious claim in order to set up an issue for appeal or collateral review. It declined to address the prejudice question, however, without the benefit of the District Court's finding on the validity of the underlying Fourth Amendment claim. Recognizing that a good Fourth Amendment claim alone would not guarantee success on a Sixth Amendment claim, it nonetheless concluded that "if the district court finds that Huynh's Fourth Amendment right was violated and as a result that, had counsel filed a motion to exclude this evidence, it likely would have been granted, then Huynh was prejudiced by his lawyer's unreasonable performance as a matter of law." Van Huynh, 95 F.3d at 1058. That determination, obviously, is a rejection of the notion that failure to pursue a Fourth Amendment claim can never be prejudice under Strickland.
The California Supreme Court also has rejected, at least implicitly, the notion that counsel's failure to move to suppress reliab
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