Weekly Case Digests September 7, 2020 September 11, 2020.

Byline: Derek Hawkins

7th Circuit Digests

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 essential to evaluate counsel's overall performance rather than find a single error. See, e.g., Strickland v. Washington, 466 U.S. 668, 69196 (1984); Williams v. Lemmon, 557 F.3d 534, 53840 (7th Cir. 2009). Because Indiana has not made this potential argument we do not pursue it. See United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020). Still, it remains necessary to show that counsel's decision was both substantively deficient and prejudicial. The state's appellate court applied the Strickland standard, and our review of the outcome under 2254(d) has been called "doubly deferential". Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).

The judge included in his opinion a picture showing some damage to the box's lock. That was enough, he thought, to establish the policy's violation, even though Marling did not draw this picture to the attention of the state's appellate court. Let us suppose that the judges should have examined the picture anyway. Still, the policy does not forbid all damage; it forbids unreasonable damage. This box was intact, and the lock could have been fixed or replaced. Why was the damage "unreasonable"? The judge did not say. Then there is the discretionary language in the General Order. The judge apparently understood Wells to forbid the use of discretion, such as evaluating when a potential for damage would be "unreasonable". Yet the principal holding of Wells is that discretion about inventory searches is compatible with the Fourth Amendment. The Justices wrote: Nothing in South Dakota v. Opperman, 428 U.S. 364 (1976), or Illinois v. Lafayette, 462 U.S. 640 (1983), prohibits the exercise of police discretion so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity Wells, 495 U.S. at 34 (cleaned up), quoting from Colorado v. Bertine, 479 U.S. 367, 375 (1987). The officer who opened and inventoried the contents of this box acted within the scope of discretion granted by General Order 49. As Wells requires, discretion under the policy is unrelated to beliefs about the container's contents. If the officer did too much ("unreasonable") damage, that could have been the basis for a tort claim under state law. It is not a basis for a conclusion that the Fourth Amendment required the suppression of incriminating evidence. It follows that counsel did not violate the Sixth Amendment by omitting this line of argument.

Reversed

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7th Circuit Court of Appeals

Case Name: Sharon Lynn Brown v. Polk County, Wisconsin, et al.,

Case No.: 19-2698

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

Focus: 4th Amendment Violation Cavity Search Reasonable Suspicion

Sharon Brown was a detainee at the Polk County Jail who underwent a physical search of her body cavities. The institution had a written policy authorizing such a search to be conducted by medical personnel when there was reasonable suspicion to believe an inmate was internally hiding contraband. Fellow inmates had reported that Brown was concealing methamphetamine inside her body, and that prompted jail staff to invoke the policy. Officers took Brown to a hospital, where a doctor and nurse inspected both her vagina and rectum. The search revealed no drugs.

Brown sued Polk County and several jail officials under 42 U.S.C. 1983 alleging a violation of her Fourth Amendment rights. The defendants moved for summary judgment, and the district court granted the motion, concluding that the defendants had reasonable suspicion that Brown was concealing contraband, their suspicion justified the cavity search, and the ensuing search was reasonable. We agree and affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Airrion S. Blake

Case No.: 19-2508

Officials: RIPPLE, BARRETT, and BRENNAN, Circuit Judges.

Focus: Sentencing Guidelines

A defendant convicted of tax fraud challenges his sentence, disputing the loss amount which set the applicable range for his case under the Sentencing Guidelines. The district court did not commit reversible error, so we affirm the defendant's sentence. The defendant also appeals the denial of his claim of ineffective assistance of trial counsel. Because on direct appeal such a claim is limited to the original trial record, it is often better raised on collateral review. The defendant agrees, so we dismiss that claim without prejudice.

Dismissed

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7th Circuit Court of Appeals

Case Name: J.S.T. Corporation v. Foxconn Interconnect Technology LTD., et al.,

Case No.: 19-2465

Officials: BAUER, KANNE, and BARRETT, Circuit Judges.

Focus: Personal Jurisdiction

J.S.T. Corporation, which is based in Illinois, produces a type of electronic equipment called a connector. Bosch, an engineering company, asked J.S.T. to design and manufacture a connector that Bosch could incorporate into a part that it builds for General Motors. For a time, Bosch retained J.S.T. as its sole supplier of those connectors. Then, according to J.S.T., Bosch wrongfully acquired J.S.T.'s proprietary designs and provided them to J.S.T.'s competitors. The competitors used the stolen designsallegedly with full knowledge of their provenanceto build their own knockoff connectors and eventually to displace J.S.T. from its role as Bosch's supplier.

After filing various lawsuits against Bosch, J.S.T. filed this suit in Illinois against the competitors, alleging misappropriation of trade secrets and unjust enrichment. The district court dismissed the case for lack of personal jurisdiction. The competitors' only link to Illinois is that they sell their connectors to Bosch, knowing that the connectors will end up in General Motors cars and parts that are sold in Illinois. For personal jurisdiction to exist, though, there must be a causal relationship between the competitors' dealings in Illinois and the claims that J.S.T. has asserted against them. Because no such causal relationship exists, we affirm the judgment of the district court.

Affirmed

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7th Circuit Court of Appeals

Case Name: Rebecca Gysan v. Steven Francisko, et al.,

Case No.: 19-1471

Officials: EASTERBROOK, WOOD, and BARRETT, Circuit Judges.

Focus: Qualified Immunity

On the first day of deer hunting season in 2013, Officer Steven Francisko was checking hunters' licenses to prevent poaching. He saw a van parked on the side of a road; immediately across the road, armed hunters had just emerged from the woods. Francisko approached the driver, who turned out to be Shane Cataline. Francisko thought that Cataline was acting strangely and was reluctant to answer questions, though he handed Francisko his driver's license. While Francisko was in his car doing a license check, Cataline called 911 and said: "I am in a lot of trouble right now. I think I am going to be disappearing or something." He hung up without requesting assistance. Francisko found that Cataline's license was valid and that he was not wanted on a warrant, so he told Cataline that he was free to gothough he thought that Cataline looked tired. By the time Cataline drove away, Francisko had been joined by State Trooper Luke Kuehl in a second car. The 911 operator, worried about the strangeness of Cataline's statements, called back, but he did not answer. The operator called the dispatcher, who reached Kuehl's supervisor, who told him to stop Cataline to check whether he was fit to drive...

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