680 F.3d 1006
7th Cir.2012Background
- Gardner was convicted of possession of a firearm by a felon after police frisked him and found a pistol in his coat pocket.
- Gardner contends the gun was planted; his trial counsel refused to move to suppress and did not raise Simmons v. United States tradeoffs.
- In §2255 proceedings, Gardner argued ineffective assistance for (a) failing to suppress and (b) failing to explain Simmons rule to him.
- The district court denied relief, ruling counsel’s performance was not deficient and noting Gardner had not admitted possession.
- The Seventh Circuit granted a certificate of appealability on the two asserted failures and reversed the denial on the suppression issue, remanding for an evidentiary hearing on prejudice.
- The court held Simmons advice is not mandatory; but the failure to move to suppress based on a misapprehension of the law could prejudice Gardner, warranting remand for prejudice inquiry.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was counsel deficient for failing to move to suppress? | Gardner | U.S. | Remand for prejudice inquiry on suppression |
| Did counsel's Simmons advice fail to render competent representation? | Gardner | U.S. | Simmons advice not necessary; no deficiency shown |
Key Cases Cited
- Simmons v. United States, 390 U.S. 377 (1968) (admission at suppression hearing may not be used to prove guilt at trial)
- Strickland v. Washington, 466 U.S. 668 (1984) (ineffective assistance standard)
- Johnson v. United States, 604 F.3d 1016 (7th Cir. 2010) (misapprehension of law can render counsel ineffective)
- United States v. Paladino, 401 F.3d 471 (7th Cir. 2005) (remedy for appellate review following Paladino decision)
- Bowles v. Russell, 551 U.S. 205 (2007) (district court errors with jurisdictional implications do not automatically excuse counsel)
- United States v. Ienco, 182 F.3d 517 (7th Cir. 1999) (factual nexus between illegality and evidence can justify suppression)