                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 03-1507
ANTHONY OWENS,
                                               Petitioner-Appellant,
                                 v.


UNITED STATES OF AMERICA,
                                              Respondent-Appellee.
                          ____________
         Appeal from the United States District Court for the
         Southern District of Indiana, Indianapolis Division.
           No. 02 C 1458—Larry J. McKinney, Chief Judge.
                          ____________
     ARGUED AUGUST 3, 2004—DECIDED OCTOBER 19, 2004
                          ____________



  Before POSNER, ROVNER, and WOOD, Circuit Judges.
  POSNER, Circuit Judge. Anthony Owens filed a motion
under 28 U.S.C. § 2255 to set aside his drug conviction and
sentence because his trial lawyer fumbled what should have
been a successful motion to suppress evidence seized pur-
suant to a warrant to search Owens’s house. The district
court denied the motion, and Owens appeals. He is met at
the threshold by our decision in Holman v. Page, 95 F.3d 481,
488-92 (7th Cir. 1996), which holds that a failure to make a
Fourth Amendment objection to the admission of evidence,
2                                                 No. 03-1507

however meritorious the objection, cannot amount to inef-
fective assistance of counsel in a constitutional sense if the
evidence was reliable, so that its admission, even if im-
proper, created no risk that an innocent person would be
convicted. Owens asks us to overrule Holman, noting its
inconsistency with the case law of the other circuits and the
long shadow cast over it by subsequent decisions of the
Supreme Court. We need not consider his request unless we
decide that his lawyer indeed booted a good Fourth Amend-
ment claim, so let us begin with that question.
  The warrant pursuant to which evidence (consisting mainly
of cocaine, marijuana, and guns) was used against Owens at
his trial was based on a barebones affidavit, signed by a
detective, which stated that three months earlier an infor-
mant had bought “a quantity of crack” from Owens at a
house believed to be Owens’s residence. There was no in-
dication either of the actual quantity of crack or of the
reliability of the informant. Owens’s trial lawyer moved to
suppress the evidence, arguing that a sale of an unknown
quantity of an illegal drug three months before a search
warrant was sought does not, without more (as in United
States v. Pless, 982 F.2d 1118, 1125-26 (7th Cir. 1992)),
establish probable cause to believe that the search of the
premises on which the sale took place would turn up
contraband or evidence of crime. The argument should have
been a winner. Sgro v. United States, 287 U.S. 206, 212 (1932);
United States v. Helton, 314 F.3d 812, 821-23 (6th Cir. 2003);
United States v. Weaver, 99 F.3d 1372, 1378-79 (6th Cir. 1996);
United States v. Wagner, 989 F.2d 69, 74-75 (2d Cir. 1993). If
the quantity was slight—which, for all the judge issuing the
warrant could have known, it was—there would be no basis
for thinking either that the premises were a crack house or
that the money received in the sale would still be on the
premises. It would be just as likely that either Owens or
No. 03-1507                                                    3

someone with access to his house had made a single,
isolated sale, perhaps to a desperate acquaintance.
   So inadequate was the affidavit that the search cannot be
saved by United States v. Leon, 468 U.S. 897, 923 (1984),
which holds that the fruits of a search pursuant to a warrant
should not be suppressed unless the officers who conducted
it could not reasonably have believed that the warrant was
supported by probable cause. See United States v. Zimmerman,
277 F.3d 426, 437 (3d Cir. 2002); United States v. Weaver, supra,
99 F.3d at 1380-81; United States v. Wilhelm, 80 F.3d 116, 122-
23 (4th Cir. 1996); United States v. Leake, 998 F.2d 1359, 1367
(6th Cir. 1993); United States v. Baxter, 889 F.2d 731, 733-34
(6th Cir. 1989). The continued validity of Holman v. Page is
therefore inescapably presented—provided of course that
Owens’s lawyer was ineffectual in failing to get the fruits of
the search suppressed. He was, even though, as we noted, he
made the right argument. The trouble arose because he
failed to argue in addition that it was Owens’s house in
which the crack was found. (Owens’s defense at trial was
going to be that he had no connection with the house.) This
omission enabled the government to riposte that if it wasn’t
Owens’s house, no right of his had been violated by the
search. And so the motion to suppress failed.
   The evidence was overwhelming that it was indeed
Owens’s house in which the crack was found. The lawyer’s
decision to bet his all on a denial of that fact and by doing
so forfeit a compelling ground for excluding evidence
essential to convict his client was therefore a blunder of the
first magnitude. Had he acknowledged that it was Owens’s
house, the motion to suppress would have been granted and
Owens would have been acquitted. And in the unlikely event
that the motion failed, the defense could change course and
try to prove at trial that it was not Owens’s house after all.
His earlier denial would not be a bar. “[W]hen a defendant
4                                                No. 03-1507

testifies in support of a motion to suppress evidence on
Fourth Amendment grounds, his testimony may not
thereafter be admitted against him at trial on the issue of
guilt unless he makes no objection.” Simmons v. United
States, 390 U.S. 377, 394 (1968). Apparently Owens’s lawyer
was not familiar with the Simmons rule; he should have
been.
   So we come to Holman v. Page, where we reasoned as fol-
lows. A claim of ineffective assistance of counsel requires
proof not only that the lawyer’s handling of the defense
failed to come up to minimum professional standards but also
that his failure “prejudiced” the defendant. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Evidence seized in an
illegal search is usually—in this case as in Holman—reliable,
and on this ground the Supreme Court had held in Stone v.
Powell, 428 U.S. 465 (1976), that a violation of the Fourth
Amendment cannot be a ground for habeas corpus (or for
its equivalent for federal prisoners, such as Owens—the
grant of a section 2255 motion) unless the defendant could
not have presented a Fourth Amendment defense at trial.
Therefore, we reasoned in Holman, if a lawyer’s failure to
argue a Fourth Amendment defense were deemed prejudi-
cial and thus could support a finding of ineffective assis-
tance of counsel, this would allow a Fourth Amendment
claim to be smuggled in by the back-door route of a Sixth
Amendment claim.
  The essence of Holman’s analysis was thus a narrow defi-
nition of “prejudice”: the defendant is prejudiced by his
lawyer’s inadequacy only if that inadequacy created a risk
of convicting an innocent person. Provided the evidence seized
in an illegal search is reliable, suppressing that evidence is
not required in order to protect the innocent—it is merely a
tool for deterring violations of the Fourth Amendment. Yet
this rationale, far from being compelled by Stone v. Powell,
No. 03-1507                                                  5

is, we now realize, inconsistent with that decision. The Court
had, remember, said that a federal habeas corpus claim could
be based on a Fourth Amendment violation if the defendant
hadn’t had an opportunity to present his Fourth Amend-
ment defense at his trial. Stone v. Powell, supra, 428 U.S. at
494; Cabrera v. Hinsley, 324 F.3d 527, 531-32 (7th Cir. 2003);
Marshall v. Hendricks, 307 F.3d 36, 82 (3d Cir. 2002). If the
defendant hasn’t had effective assistance of counsel at trial,
he has been deprived of that opportunity, and the back door
to postconviction relief swings open. And so the Court held
in Kimmelman v. Morrison, 477 U.S. 365, 383 (1986), rejecting
the argument “that Stone’s restriction on federal habeas
review of Fourth Amendment claims should be extended to
Sixth Amendment ineffective-assistance-of-counsel claims
which are founded primarily on incompetent representation
with respect to a Fourth Amendment issue.”
  The holding of Kimmelman v. Morrison—that the Sixth
Amendment does provide a remedy for counsel’s failure to
argue a Fourth Amendment defense—is inconsistent with
holding that a defendant is not prejudiced by, and therefore
has no Sixth Amendment grievance concerning, a failure to
suppress illegally seized evidence. It is true that Justice
Powell’s concurring opinion argued that the use of illegally
seized, but reliable, evidence is not “prejudice,” because its
use does not make the defendant’s trial “unfair.” Id. at 391-
98. But he acknowledged that the majority opinion tugs the
other way. Id. at 391. We quote the relevant language of the
majority opinion, italicizing the critical sentence: “We also
reject the suggestion that criminal defendants should not be
allowed to vindicate through federal habeas review their
right to effective assistance of counsel where counsel’s prim-
ary 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.’. . . [W]e have
6                                                  No. 03-1507

never intimated that the right to counsel is conditioned upon ac-
tual innocence. The constitutional rights of criminal defendants
are granted to the innocent and the guilty alike. Conse-
quently, we decline 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 determina-
tion 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. We de-
cline to hold that the scope of the right to effective assis-
tance of counsel is altered in this manner simply because the
right is asserted on federal habeas review rather than on
direct review.”
   This language cannot be dismissed as dictum. It is the
explanation of the holding. Justice Powell complained that
the parties hadn’t argued the issue. Id. at 391. Well, the par-
ties in Erie R.R. v. Tompkins did not argue for overruling
Swift v. Tyson. But overruled it was.
   The right to counsel is intended to place a criminal
defendant in the approximate position that he would occupy
if he were learned in the law and could thus defend himself
effectively. Had Owens been learned in the law he would
have admitted that it was his house that was searched, gotten
the evidence found there suppressed, and been acquitted
because there was negligible evidence of his guilt other than
what was found in the search of the house. The “prejudice”
essential to a violation of the Sixth Amendment right to the
effective assistance of counsel is not being convicted though
one is innocent, although that is the worst kind; it is being
convicted when one would have been acquitted, or at least
would have had a good shot at acquittal, had one been
competently represented.
No. 03-1507                                                   7

  The line runs between cases in which the defendant is
complaining of his lawyer’s failure to do something illegal
or unethical (such as to put on testimony that he knows to
be perjured), as in Nix v. Whiteside, 475 U.S. 157, 175-76
(1986), and cases such as Holman and the present case in
which the lawyer failed to present a meritorious defense,
whether or not it was a defense motivated by a concern with
preventing the conviction of a person who has been charged
with a crime that he didn’t commit. It would be odd to think
that if the defendant’s lawyer had failed to object to the
introduction of a confession that had been beaten out of his
client, the client would have no Sixth Amendment com-
plaint if it were shown that the confession, though coerced,
had been reliable evidence of his guilt, perhaps because it
revealed details of the crime that only the perpetrator could
have known.
  Thus far, however, we have merely been elaborating the
argument made in the dissent of three members of this court
(not including the author of this opinion) from the denial of
rehearing en banc in Holman. Holman v. Page, 102 F.3d 872,
873 (7th Cir. 1996). There are more compelling grounds for
overruling the decision. In the eight years since it was
rendered, no case has followed it; it stands completely
alone. Northrop v. Trippett, 265 F.3d 372, 384-85 (6th Cir.
2001), rejects it explicitly; all other pertinent cases, whether
they predate or ignore it, are inconsistent with it because all
of them, on the authority of Kimmelman v. Morrison and
contrary to the position we took in Holman, permit a
defendant to complain about his lawyer’s failure to present
a Fourth Amendment defense. Belmontes v. Woodford, 350
F.3d 861, 887 (9th Cir. 2003); Hooper v. Mullin, 314 F.3d 1162,
1175-76 (10th Cir. 2002); United States v. Dixon, 1 F.3d 1080,
1083 (10th Cir. 1993); Laaman v. United States, 973 F.2d 107,
113 (2d Cir. 1992); United States v. Caggiano, 899 F.2d 99, 101-
02 (1st Cir.), overruled on other grounds in Horton v.
8                                                 No. 03-1507

California, 496 U.S. 128 (1990); Fairchild v. Lockhart, 857 F.2d
1204, 1206 (8th Cir. 1988); Byrne v. Butler, 845 F.2d 501, 513
(5th Cir. 1988); Thomas v. Newsome, 821 F.2d 1550, 1552 (11th
Cir. 1987). (Indeed, as noted in the dissent from the denial of
rehearing en banc, Holman v. Page was overruling (though
without citing) a previous decision by this court, Mason v.
Godinez, 47 F.3d 852, 855 (7th Cir. 1995).) Apt, then, is our
statement in United States v. Hill, 48 F.3d 228, 232 (7th Cir.
1995), that “when a number of other circuits reject a position
that we have taken, and no other circuit accepts it, the
interest in avoiding unnecessary intercircuit conflicts comes
into play; and if we are asked to reexamine our position, we
can hardly refuse . . . . [I]f upon conscientious reexamination
we are persuaded that the other circuits have the better of
the argument, we should abandon our position in order to
spare the Supreme Court extra work.”
  Holman is further undermined by the subsequent Supreme
Court decisions of Glover v. United States, 531 U.S. 198 (2001),
and Williams v. Taylor, 529 U.S. 362 (2000). Glover rejected a
rule that this court had adopted in Durrive v. United States, 4
F.3d 548, 550-51 (7th Cir. 1993), a cousin of Holman, to the
effect that an error by counsel that resulted in a higher
sentence for his client did not violate the right to effective
assistance of counsel unless the higher sentence was unfair.
Williams is explicit that the test of prejudice to be used in
applying the standard of the Strickland case for ineffective
assistance of counsel is not whether it would somehow of-
fend fairness (a standard independently objectionable because
of its vagueness) to allow the judgment to stand despite the
defense lawyer’s incompetent performance but whether that
performance deprived his client of a “substantive or
procedural right to which the law entitled him.” Williams v.
Taylor, supra, 529 U.S. at 392-93. Holman and Owens had no
right to use perjured testimony (Nix v. Whiteside), but they
had every right to suppress evidence that had been obtained
in violation of the Fourth Amendment.
No. 03-1507                                                 9

  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.
Judges Manion, Kanne, and Evans voted to hear the case en
banc, and Chief Judge Flaum and Judge Williams did not
participate in the consideration or decision of whether to
hear the case en banc.
                                 REVERSED AND REMANDED.

A true Copy:
       Teste:

                          _____________________________
                           Clerk of the United States Court of
                             Appeals for the Seventh Circuit




                   USCA-02-C-0072—10-19-04
