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Prejudice prong of a 2255 motion alleging IAC

May a convict present an inneffective assistance of counsel claim in the Sevent Circuit when his lawyer snatched defeat from the jaws of a winning motion to supress?  Until today, "No."

The Seventh Circuit overruled Holman, which held that a convict could not claim ineffective assistance of counsel unless he showed that IAC prejudiced him. A convict could only be prejudiced if his lawyers ineffectiveness created the risk that an innocent person would be convicted. Thus, under Holman, a convict could never establish IAC for his lawyer's bumbling a suppression motion.

In Owens v. United States, No. 03-1507, Judge Posner wrote for a unanimous three judge panel:

[C]riminal defendants should not be allowed to vindicate through federal habeas review their right to effective assistance of counsel where counsel’s primary error is failure to make a timely request for the exclusion of illegally seized evidence—evidence which is typically reliable and often the most probative information bearing on the guilt or innocence of the defendant.  [The U.S. Supreme Court] never intimated that the right to counsel is conditioned upon actual innocence. The constitutional rights of criminal defendants are granted to the innocent and the guilty alike. Consequently, [SCOTUS] decline[d] to hold either that the guarantee of effective assistance of counsel belongs solely to the innocent or that it attaches only to matters affecting the determination of actual guilt. Furthermore, petitioners do not suggest that an ineffective-assistance claim asserted on direct review would fail for want of actual prejudice whenever counsel’s primary error is failure to make a meritorious objection to the admission of reliable evidence the exclusion of which might have affected the outcome of the proceeding. [SCOTUS] decline[d] to hold that the scope of the right to effective assistance of counsel is altered in this manner simply because the right is asserted on federal habeas review rather than on direct review.

We conclude that Holman should be overruled, and we have therefore circulated this opinion to the full court in advance of publication, pursuant to 7th Cir. R. 40(e). A majority of the judges voted not to hear the case en banc.

This is a huge win for criminal defendants and the Fourth and Sixth Amendments.