New v. United States, 2011 U.S. App. LEXIS 18157

New, an Oglala Sioux tribe member, was in a high-speed crash on Pine Ridge Reservation, alcohol and marijuana detected; his cousin and father died; New initially claimed cousin was driving but later admitted driving in hospital; federal charges for two counts of involuntary manslaughter; trial evidence included his statements to agents and accident reconstruction expert testimony; New was convicted and sentenced to consecutive 72-month terms; §2255 motion alleging ineffective assistance was denied in part and referred to magistrate for one claim; appellate certificate granted for certain issues.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance for suppressing statements claim	New contends trial counsel failed to challenge Cresalia's hospital-entry as unlawful search.	New cannot show deficient performance given unsettled law and lack of controlling authority favoring suppression.	No deficient performance; argument not clearly supported by controlling authority.
Ineffective assistance for Sixth Amendment interview counsel	Trial counsel should have argued Cresalia violated Sixth Amendment right to counsel.	Right to counsel not attached during pre-indictment interview; no prejudice shown.	No prejudice; Sixth Amendment right not violated.
Appellate counsel ineffective for sufficiency challenge	Sufficiency of the evidence should have been appealed to undermine conviction.	Appellate strategy supports not challenging weak issues; credibility and evidence support guilt.	Appellate claim rejected; evidence viewed in light most favorable to verdict supports guilt.
District court’s denial of evidentiary hearings on three §2255 claims	District court should have held hearings on three claims.	Record shows no basis for hearing; claims fail on merits.	No abuse of discretion; record conclusively shows no relief.

Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-pronged standard for ineffective assistance of counsel)
Fields v. United States, 201 F.3d 1025 (8th Cir. 2000) (unsettled law does not render counsel deficient)
Parker v. Bowersox, 188 F.3d 923 (8th Cir. 1999) (failure to anticipate change in law not ineffectiveness)
Givens v. Cockrell, 265 F.3d 306 (5th Cir. 2001) (support for above standard when unsettled law exists)
Smith v. Singletary, 170 F.3d 1051 (11th Cir. 1999) (reference to unsettled law and strategy considerations)
Davis v. United States, 406 F.3d 505 (8th Cir. 2005) (standards of review for §2255 claims)
Roe v. Delo, 160 F.3d 416 (8th Cir. 1998) (non-mandatory nature of raising every colorable claim on appeal)
Montano v. United States, 506 F.3d 1128 (8th Cir. 2007) (credibility questions resolved by jury)
Anjulo-Lopez v. United States, 541 F.3d 814 (8th Cir. 2008) (hearing requirement for §2255 claims; standard for denying hearings)
McNeil v. Wisconsin, 501 U.S. 171 (1991) (Sixth Amendment right to counsel does not attach until proceedings commence)
Ledezma-Rodriguez v. United States, 423 F.3d 830 (8th Cir. 2005) (reviewing court can look behind discretionary rulings when necessary)
Kyllo v. United States, 533 U.S. 27 (U.S. 2001) (reasonable expectation of privacy; Fourth Amendment analysis)