Appeal from the United States District Court for the Central District of Illinois. No. 07-01146-Michael H. Mihm, Judge.
The opinion of the court was delivered by: Rovner, Circuit Judge
Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.
Adrian T. Johnson was convicted of possession with intent to distribute at least 50 grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1). He had two prior drug convictions and, accordingly, received a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A)(iii).
Johnson brought a motion in the district court to vacate his sentence pursuant to 28 U.S.C. § 2255, which the district court denied. That motion asserted that he was denied effective assistance of counsel because his attorney, based on a misapprehension of the law, failed to seek suppression of the crack cocaine at trial. He also contended that his attorney rendered ineffective assistance in failing to challenge his initial seizure by the police. See generally Fuller v. United States, 398 F.3d 644, 648 (7th Cir. 2005) (noting that ineffective assistance claims may properly be brought in a § 2255 motion regardless of whether they could have been pursued on direct appeal).
The incident resulting in Johnson's arrest and conviction took place on the night of February 22, 2006. Johnson, driving a vehicle he borrowed from a relative, parked the vehicle on a block in an area that was considered a high-crime high-density area and therefore subject to enhanced police patrols. Two officers who were patrolling the area observed him emerge from the car and walk toward an apartment building. The officers testified that he held in his hand a brown bag that appeared to contain open alcohol. The officers watched as Johnson proceeded up the apartment stairs to the second floor, at which time he knocked on a door for approximately 30 seconds. Receiving no response, Johnson then prepared to descend the stairs, abandoning the bag and its contents on the second floor landing. The officers approached Johnson and ordered him to retrieve the bag. When he did so, they confirmed that it contained a bottle of beer that was approximately two-thirds full and still cold. A check for outstanding warrants proved negative, and the officers detained Johnson to write a citation for the alcohol violation. While writing that citation, they ran a computer check on Johnson and retraced his steps to the car. When Johnson protested that they need not search the area because he had not tossed anything along that path, Officer Edelman asked if there was anything in the car that he should know about. Johnson responded that there was not, and Edelman then questioned Johnson as to whether he cared if Edelman searched the car. According to the officers, Johnson responded, "Go ahead." Officer Edelman stated that before entering the vehicle he observed by flashlight what appeared to be a bag of marijuana above the driver's visor. Upon entering the vehicle, he found a black stocking cap with a plastic bag of what appeared to be a large rock of crack cocaine inside. In addition, in the backseat he discovered a digital scale and two boxes of plastic sandwich bags. At that point, Johnson was becoming disruptive and the officers subdued him and placed him under arrest. The search of the vehicle is the basis of the ineffective assistance claim before this court.
Johnson argues that he was denied the effective assistance of counsel when his attorney failed to file a motion to suppress the crack cocaine based on the unconstitutional search of the car. His defense counsel pursued other pretrial motions, including a motion to suppress and motion in limine aimed at keeping his alcohol possession and incriminating statements out of evidence. Despite Johnson's request, however, his attorney chose not to file a motion to suppress the crack cocaine evidence found in the search of the vehicle.
In order to succeed on a claim of ineffective assistance of counsel, Johnson must demonstrate both deficient performance and prejudice. Specifically, he must show that defense counsel's performance fell "outside the wide range of professionally competent assistance" and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 690, 694 (1984); Allen v. Chandler, 555 F.3d 596, 600 (7th Cir. 2009); Bynum v. Lemmon, 560 F.3d 678, 685 (7th Cir. 2009). Johnson asserts that the police had no constitutionally-valid basis to search the car, and that a motion to suppress could have resulted in the suppression of the fruits of that search. Because that search yielded the crack cocaine which formed the basis of the charge and the centerpiece of the government's case, the decision not to seek suppression was a critical one.
In analyzing the deficient performance prong of the test, we consider whether the decision to forego a motion to suppress was a reasonable trial strategy. Con-duct of counsel at trial is deficient if it is unreasonable under prevailing professional norms. Pole v. Randolph, 570 F.3d 922, 934 (7th Cir. 2009). We have repeatedly recognized, however, that a decision of trial counsel based on a misapprehension of law may constitute objectively unreasonable performance. United States v. Spence, 450 F.3d 691, 694-695 (7th Cir. 2006); Bynum, 560 F.3d at 684-85.
In an affidavit submitted to the district court, Johnson's defense attorney at the original trial, Joseph M. Borsberry, acknowledged that Johnson wanted him to file a motion to suppress the evidence based on the Fourth Amendment violations. He stated that he chose not to file such a motion because the motor vehicle in which the cocaine was found was allegedly owned by one of Mr. Johnson's relatives. Since Mr. Johnson did not have an ownership interest in the motor vehicle or a reasonable expectation of privacy, I felt it should be a better trial strategy to use the fact that Mr. Johnson did not own the vehicle as an issue in trial. In my opinion there was no Fourth Amendment violation in searching the vehicle because of a lack of reasonable expectation of privacy in the vehicle of another.
As the statement by Borsberry makes clear, the decision not to file the motion to suppress was based on the belief that Johnson lacked a reasonable expectation of privacy in the vehicle because he was not the owner. The district court, in denying the § 2255 motion, repeated that proposition. The court also denied the certificate of appealability-which we ultimately granted-as to that and all other issues. ...