Habeas – Ineffective Assistance – Suppression Motion

John Ebert v. Gaetz, 7th Circuit No. 09-1627, 6/23/10

7th circuit court of appeals decision

When the ineffective assistance claim is based on counsel’s failure to file a motion to suppress, as it is here, the defendant must also prove “that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice.” Kimmelman v. Morrison, 477 U.S. 365, 375 (1986); see also United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005). These are at best difficult showings to make, particularly since Strickland requires that we presume counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment,” Strickland, 466 U.S. at 690, and evaluate his performance as a whole rather than focus on a single failing or oversight, Peoples v. United States, 403 F.3d 844, 848 (7th Cir. 2005). Ebert’s uphill slope is even steeper under AEDPA, which adds an extra layer of deference to our review. See Ellison v. Acevedo, 593 F.3d 625, 633 (7th Cir. 2010); Bin-Yisrayl, 540 F.3d at 546; Conner v. McBride, 375 F.3d 643, 657 (7th Cir. 2004) (“[W]e do not apply the Strickland standards directly, but instead ask whether the post-conviction court’s factual findings and conclusions pass AEDPA muster.”).

The court goes on to hold that the police had probable cause to arrest, hence Ebert suffered no prejudice from counsel’s failure to (renew) a previously-lost suppression motion on retrial. Probable cause is necessarily quite fact-specific, so the particular details don’t bear reciting; but some of the larger points do:

1. “In short, ‘it does not take much to establish probable cause. The officers must have more than a bare suspicion that they have the right guy, but they need not have enough evidence to support a conviction or even to show that their belief is more likely true than false.’ Fox v. Hayes, 600 F.3d 819, 833 (7th Cir. 2010).”
2. The Confrontation Clause doesn’t apply to suppression hearings.
3. “‘(T)he amount of information the police are required to gather before establishing probable cause for an arrest is in inverse proportion to the gravity of the crime and the threat of its imminent repetition,’ Mason v. Godinez, 47 F.3d 852, 856 (7th Cir. 1995). Given the gravity of the crimes here [murder; robbery], the probable cause bar was low[.]”
4. “It is of no moment that the court neglected to give weight to Ebert’s attorney’s assessment of his performance as constitutionally ineffective. See McAfee v. Thurmer, 589 F.3d 353, 356 (7th Cir. 2009) (noting that attorney ‘reflection after the fact is irrelevant to the question of ineffective assistance of counsel’); Chandler v. United States, 218 F.3d 1305, 1315 n.16 (11th Cir. 2000) (en banc) (‘Because the standard is an objective one, that trial counsel . . . admits that his performance was deficient matters little.’)”