98 F.4th 847
7th Cir.2024Background
- Jacob Lickers was arrested after being found with his genitals exposed near a playground; a subsequent search found marijuana and digital devices containing child pornography.
- State charges for drug and child pornography offenses were dismissed after the state court granted Lickers's suppression motion (finding the initial police stop unconstitutional).
- Federal agents then obtained a new search warrant (using an affidavit referencing state search results but not mentioning the state suppression ruling) and Lickers was federally prosecuted and convicted on child pornography charges.
- Lickers's motions to suppress the evidence at the federal level were denied, and he pled guilty, reserving his right to appeal the suppression ruling; his conviction was affirmed on direct appeal.
- Lickers filed a 28 U.S.C. § 2255 motion arguing ineffective assistance of counsel for failing to properly attack the validity of the federal search warrant and to pursue a "bad faith" challenge regarding the omission of the state suppression ruling in the federal affidavit, which the district court denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether law of the case bars post-conviction claim | Cannot be barred because initial record was undeveloped due to attorney error | Law of the case: prior appeal resolved Agent Telisak's good faith, so it can't be relitigated in § 2255 proceedings | Not barred—the law of the case doctrine does not preclude revisiting in light of alleged ineffective assistance |
| Ineffective assistance for failing to pursue Franks | Counsel should have sought a Franks hearing to show the federal agent omitted material information | Omission was not material; state court ruling was not binding or relevant to probable cause in the federal warrant | No ineffectiveness—failure to pursue this theory was reasonable under the circumstances |
| Ineffective assistance for appellate strategy | Appellate counsel should have argued bad faith or challenged lack of Franks hearing on appeal | Appellate counsel can’t be ineffective for not raising unpreserved or meritless arguments not developed by trial counsel | No ineffectiveness—appellate counsel acted reasonably given trial counsel’s strategy and record |
| Materiality of state suppression ruling to federal | The federal agent’s omission of the state suppression ruling was key and showed potential bad faith | The state suppression ruling was about the arrest, not the search warrant, and not binding or material for federal probable cause or good faith analysis | Ruling was too attenuated to be material; counsel not constitutionally required to explore bad faith here |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (establishes standard for ineffective assistance of counsel)
- United States v. Leon, 468 U.S. 897 (1984) (creates the good faith exception to the exclusionary rule for search warrants)
- Franks v. Delaware, 438 U.S. 154 (1978) (prohibits evidence obtained under a warrant procured by deliberate or reckless falsehoods/omissions)
- Evitts v. Lucey, 469 U.S. 387 (1985) (extends right to effective assistance to appeals as of right)