78 F. 3d 586 - Alexander v. United States

Anthony Alexander seeks release from custody under 28 U.S.C. § 2255, arguing that his lawyer rendered ineffective assistance of counsel by failing to file a motion to suppress evidence against him.

The district judge denied this petition for three reasons: first, a collateral attack resting on the Fourth Amendment's exclusionary rule is barred by Stone v. Powell, 428 U.S. 465 (1976). Second, a claim of ineffective assistance is not a way to avoid Stone, because it, too, could have been raised on direct appeal--the bases of the claim were in the record, and Alexander had new appellate counsel. Third, the judge held, the Fourth Amendment objection would have failed on the merits, and counsel should not be branded as ineffective for failing to file doomed motions.

We agree with the first two of these conclusions and therefore think it inappropriate (and certainly unnecessary) to address the third. One further comment about the second reason is appropriate. Alexander did not argue on direct appeal that his lawyer was ineffective for failure to procure suppression of adverse evidence. But he did argue that his lawyer was ineffective. He contended that the district judge's decision to admit certain telephone records nullified his lawyer's trial strategy and deprived him of the effective assistance of counsel. We considered and rejected this argument on the merits. A petition under § 2255 is not an appropriate way to add a new wrinkle to a theme advanced, and resolved, on direct appeal. United States v. Taglia, 922 F.2d 413 (7th Cir.1991).

AFFIRMED.