Ineffective Assistance of Counsel.

Byline: Derek Hawkins

7th Circuit Court of Appeals

Case Name: Raymond Marling v. Frank Littlejohn, et al., Wabash Valley Correctional Facility

Case No.: 19-3077

Officials: EASTERBROOK, RIPPLE, and SCUDDER, Circuit Judges.

Focus: Ineffective Assistance of Counsel

After Raymond Marling was arrested, on a warrant, while driving his car, police in Indiana took an inventory of its contents.The trunk held a locked box. An officer opened the box with a screwdriver and found illegal drugs. Together with other evidence (including the fact that Marling was armed, despite felony convictions that made this unlawful), these drugs played a role in his convictions and 38-year sentence, which includes a 20- year enhancement for being a habitual criminal.

Marling's lawyer asked the trial court to suppress the contents of the box, arguing that opening it was improper. That argument lost in the trial court and lost again on appeal. Marling v. State, 2014 Ind. App. Unpub. LEXIS 1305 (Sept. 30, 2014). He filed a collateral attack, this time arguing that his trial and appellate lawyers had furnished ineffective assistance by not presenting the best reasons for objecting to the box's opening. He contended that counsel should have argued that opening his box damaged it, violating the police department's policy. The post-conviction court held a hearing, took evidence, and rejected this contention. The court of appeals affirmed, concluding among other things that counsel's omission was not prejudicial because the record did not show that the box had been damaged. 2018 Ind. App. Unpub. LEXIS 610 (May 25, 2018). But a federal district court issued a writ of habeas corpus, 2019 U.S. Dist. LEXIS 163777 (S.D. Ind. Sept. 24, 2019), ruling that a photograph in the record shows damage to the box's lock. This meant, the judge stated, that the state court's finding had been rebutted by clear and convincing evidence. 28 U.S.C. 2254(e)(1).

A factual mistake by a state court does not support collateral relief, unless a correction shows that the petitioner "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 2254(a). Ineffective assistance of counsel suffices, because it violates the Sixth Amendment (applied to the states by the Fourteenth). Indiana has assumed that failure of counsel at trial and on appeal to choose the best argument in support of a motion can violate the Sixth Amendment, despite many cases holding that it is...