Jacob D. Lickers v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1179
JACOB D. LICKERS ,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 4:20-cv-04164-SLD — Sara Darrow, Chief Judge.
____________________
A RGUED J ANUARY 8, 2024 — DECIDED A PRIL 12, 2024
____________________
Before W OOD, S CUDDER , and S T. EVE, Circuit Judges.
S CUDDER , Circuit Judge. Five years ago we affirmed the
conviction of Jacob Lickers for transporting and possessing
child pornography. He has since moved to vacate his convic-
tions under 28 U.S.C. § 2255, alleging that his trial and appel-
late counsel rendered ineffective assistance in connection
with an unsuccessful motion to suppress. The district court
denied relief, and we affirm. Explaining why requires us to
unpack a complex sequence of events involving parallel state

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2 No. 22-1179
and federal investigations, two search warrant applications,
two criminal prosecutions, two suppression rulings, and a di-
rect criminal appeal.
I
A
In September 2015, undercover police officers Jimmy
McVey and Ryan Maricle traveled to a public park in Mon-
mouth, Illinois to meet a confidential informant. When they
arrived, they saw something strange. A blue car sat parked on
the shoulder of a road running next to the park, half on the
road and half in the grass. Inside, the car’s lone occupant, Ja-
cob Lickers, “appeared excited, repeatedly looking toward
the passenger seat, down at his lap, and then at a family with
young children on a nearby playground.” See United States v.
Lickers, 928 F.3d 609, 613 (7th Cir. 2019). From afar Officers
McVey and Maricle thought that Lickers might be a drug ad-
dict because his jerky movements resembled the “tweaking”
that sometimes accompanies withdrawal. Id.
Upon approaching the vehicle and looking inside, the of-
ficers saw Lickers sitting in the driver’s seat with a red dish
towel draped over his lap. His cellphone rested on the pas-
senger seat. At first Officers McVey and Maricle—who were
dressed in plain clothes for their undercover assignment—im-
personated drug dealers and asked Lickers if he was looking
for pills. When Lickers said no, McVey and Maricle changed
course, disclosed that they were police, and asked Lickers for
identification. Lickers obliged.
By this point, Lickers appeared nervous. He was “breath-
ing heavily” and furtively attempting to “knock his cellphone
off the seat to the floor of the car.” Id. All the while—and

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No. 22-1179 3
despite “repeated requests to keep his hands visible”—Lick-
ers kept his hands hidden beneath the towel. Id. Fearing the
presence of a weapon, Officer Maricle ordered Lickers to re-
move the towel from his lap. Lickers complied, and the reason
for his panicky behavior became clear—the towel was cover-
ing his exposed genitals. When Officer McVey demanded an
explanation, Lickers divulged that he was looking at
Craigslist and began to admit that he was “self-pleasuring”
before catching himself and insisting that he was urinating
into a cup. Id.
Suspecting Lickers of public masturbation, Officer McVey
ordered Lickers to get dressed and exit the car. When Lickers
opened the door, McVey smelled marijuana emanating from
within. Lickers declined the officers’ request to search the car,
so they radioed for a K9 unit. The unit arrived about half an
hour later and a drug dog alerted to the presence of marijuana
near the passenger’s side door. A search of the car uncovered
about an ounce of marijuana. When Lickers admitted that the
marijuana was his, he was placed under arrest for drug pos-
session.
A more thorough inventory search resulted in the recov-
ery of Lickers’s cell phone, a laptop computer, and a digital
camera from within the car. Officer McVey obtained a state
court warrant later that day authorizing the forensic exami-
nation of those devices. Lickers’s phone and computer both
contained child pornography.
B
With this evidence in hand, state prosecutors charged
Lickers in Warren County Circuit Court with possessing child
pornography and marijuana in violation of Illinois law.

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4 No. 22-1179
Lickers retained Daniel Dalton to defend him, whose first step
was to file a motion to suppress that challenged the constitu-
tionality of Officer McVey and Maricle’s actions in the park.
Dalton’s principal contention was that the officers lacked rea-
sonable suspicion to believe that Lickers had committed a
crime when they initially seized him. Alternatively, Dalton ar-
gued that too much time had elapsed from when Officer
McVey first smelled marijuana to when the K9 unit arrived on
scene. See United States v. Robinson, 30 F.3d 774, 784 (7th Cir.
1994) (explaining that investigatory stops must be reasonable
in both “scope and duration”).
Dalton’s strategy proved sound. The state court agreed
with both arguments and suppressed all “physical evidence
seized” during the stop, along with any statements Lickers
made to Officers McVey and Maricle. The prosecution then
dismissed all charges, bringing the state case to a swift end.
C
Not keen to let Lickers go unpunished, state officials re-
ferred the case for potential federal prosecution. In February
2016, FBI Special Agent Steven Telisak took possession of
Lickers’s phone and laptop to conduct an additional forensic
examination. Although he believed that “the FBI might al-
ready have all the necessary authority” to conduct this second
search, given that the devices had already been searched by
state authorities, he applied in federal court for a fresh war-
rant to ensure compliance with the Fourth Amendment.
Agent Telisak’s supporting affidavit drew heavily on, and
even attached a courtesy copy of, the affidavit Officer McVey
filed in support of his state warrant application months be-
fore. In one regard, however, Telisak went further than

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No. 22-1179 5
McVey. Aware of the results of the state search, Telisak in-
formed the federal judge that Lickers’s devices had already
been searched and were found to contain child pornography.
At no point, though, did Agent Telisak caveat that the state
court had suppressed that evidence based on a finding that
Lickers’s arrest was unconstitutional.
The district court issued the warrant, and federal investi-
gators discovered a litany of incriminating messages Lickers
had sent using the Kik messenger application. Those mes-
sages were laden with requests for child pornography. In one,
Lickers shared a video with another Kik user portraying the
sexual abuse of an infant child.
D
In time, a federal grand jury indicted Lickers on counts of
transporting and possessing child pornography in violation
of 18 U.S.C. § 2252A(a)(1) and § 2252A(a)(5)(B). The federal
prosecution proceeded much like the state one had. Lickers
again hired Daniel Dalton, who again filed a motion to sup-
press contending that the stop in the park violated the Fourth
Amendment. Unlike before, however, Dalton also attacked
the state search warrant (not the federal warrant as one might
expect), which he contended “was so lacking in probable
cause” that the state investigators could not reasonably rely
on it.
The district court held an evidentiary hearing on the mo-
tion, at which Officer McVey testified about the events lead-
ing to Lickers’s arrest and the search of his phone and laptop.
Although Dalton questioned McVey about a range of topics,
he did not inquire about the circumstances surrounding the
referral of the case to the FBI or about what, if anything, Agent

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6 No. 22-1179
Telisak knew about the state court suppression ruling at the
time he swore out his federal search warrant affidavit. The
district court denied the motion, finding nothing unconstitu-
tional about Lickers’s arrest and no defect in the state search
warrant requiring suppression.
Lickers ultimately elected to plead guilty, reserving the
right to appeal the district court’s denial of his motion to sup-
press. In the end, the district court sentenced Lickers to con-
current terms of 132 months’ imprisonment on each count,
with a lifetime term of supervised release to follow.
E
We appointed Mark Rosen to represent Lickers on direct
appeal. Renewing the arguments Dalton had presented to the
district court, Rosen urged us to find two Fourth Amendment
violations—that the arrest of Lickers in the park was unlawful
and that the state court search warrant lacked probable cause.
We took a different route. We agreed with the district
court “that no aspect of the police’s encounter with Lickers in
Monmouth Park offended the Fourth Amendment.” Lickers,
928 F.3d at 617. But we found ourselves puzzled by the chal-
lenge to the state search warrant. After all, it was “the federal
search”—not the state search authorized by the state war-
rant—that “yielded the evidence that resulted in the federal
prosecution and conviction Lickers … challenge[d] on ap-
peal.” Id. at 619. A successful attack on the state warrant could
therefore benefit Lickers only to the extent it cast doubt on the
federal warrant as well.
The easiest path forward, we concluded, was to construe
Lickers’s challenge to the state warrant as part and parcel of a
larger attack on the federal warrant, the logic being that any

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No. 22-1179 7
deficiencies in Officer McVey’s state court affidavit would
likewise undermine Agent Telisak’s federal court affidavit
given the heavy reliance the latter placed on the former. We
reasoned that if the state warrant lacked probable cause, then
Agent Telisak’s references to the child pornography on Lick-
ers’s devices—which was found only by executing the state
warrant—could not be considered in evaluating the validity
of the federal warrant. See Lickers, 928 F.3d at 618.
Having framed the question presented on direct appeal in
this way, we held that both warrants had been issued without
probable cause, as neither warrant application foreclosed the
possibility that Lickers had been viewing adult pornography
in the park. That conclusion did not dispose of the case, how-
ever. We observed that in United States v. Leon, 468 U.S. 897
(1984), the Supreme Court recognized an exception to the ex-
clusionary rule for evidence seized in “objectively reasonable
reliance” on a search warrant later determined to have lacked
probable cause. Id. at 922. Suppression therefore depended on
whether the federal agents that procured and executed the
federal warrant had “act[ed] in objective good faith.” Id. at
920.
Although the government carried the burden to prove
good faith under Leon, Agent Telisak’s decision to apply to the
federal district court for a warrant created a presumption of
good faith. See United States v. Koerth, 312 F.3d 862, 868 (7th
Cir. 2002). To rebut that presumption, Lickers had to come
forward with direct or circumstantial evidence that the fed-
eral officers acted in an objectively unreasonable manner. See
Leon, 468 U.S. at 922–23; see also United States v. Matthews, 12
F.4th 647, 653 (7th Cir. 2021) (describing burden shifting
framework). This is a difficult showing to make even under

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8 No. 22-1179
the best of circumstances. See United States v. McMurtrey, 704
F.3d 502, 509 (7th Cir. 2013). In Lickers’s case, it proved all but
impossible.
Because Dalton and Rosen placed such heavy focus on the
state warrant, Lickers lacked the evidence he needed to
demonstrate bad faith on the part of the federal officers, in
particular Agent Telisak. As we observed at the time, “[n]ei-
ther Lickers nor the government devote[d] a word to [Agent
Telisak’s] conduct.” Lickers, 928 F.3d at 619. The only evidence
potentially suggestive of bad faith was Agent Telisak’s omis-
sion of the state court’s suppression ruling from his search
warrant affidavit. But here, too, Lickers “failed to offer any
evidence” of what Telisak knew, if anything, about that ruling
at the time he swore out his affidavit. Id. “[O]ur review of the
record” thus left “us of the firm mind that the process that
resulted in the application for, and execution of, the federal
search warrant reflected good faith on the part of the federal
agents.” Id. Because Leon applied to save the federal search
warrant, we affirmed the district court’s denial of Lickers’s
suppression motion.
F
Lickers moved to vacate his convictions under 28 U.S.C.
§ 2255. Invoking his constitutional right to the effective assis-
tance of trial and appellate counsel, see Strickland v. Washing-
ton, 466 U.S. 668, 686 (1984) (trial counsel); Evitts v. Lucey, 469
U.S. 387, 396–97 (1985) (appellate counsel), he argued that
Dalton and Rosen took missteps litigating his motion to sup-
press that were so grave and inexcusable that his lawyers
failed to function “as the ‘counsel’ guaranteed” to him by the
U.S. Constitution. Strickland, 466 U.S. at 687.

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No. 22-1179 9
As Lickers saw things, Agent Telisak’s omission of the
state court’s suppression ruling from his federal search war-
rant affidavit was strong evidence of bad faith that Dalton and
Rosen unjustifiably failed to leverage. Lickers’s motion iden-
tified two primary ways that Dalton could have done so.
First, Dalton could have moved for an evidentiary hearing
under Franks v. Delaware, 438 U.S. 154 (1978). Franks requires
the suppression of evidence obtained by virtue of a warrant
procured through knowing or reckless deception. See id. at
155–56. A defendant who makes a “substantial preliminary
showing” that a search-warrant affiant acted in bad faith by
knowingly or recklessly including material falsehoods in or
omitting material information from a search warrant affidavit
is entitled to an evidentiary hearing on that claim. See
McMurtrey, 704 F.3d at 504–05. Lickers alleged that Dalton
was deficient for failing to move for such a hearing, empha-
sizing that even if Dalton fell short of obtaining suppression
in the district court, such a hearing would have given Lickers
an invaluable opportunity to gather the evidence he needed
to overcome Leon’s presumption of good faith on direct ap-
peal.
Second, Lickers criticized Dalton’s failure to question Of-
ficer McVey at the federal suppression hearing about
“whether, when, and how he informed [Agent] Telisak or any
other federal officers of [the] state warrant’s suppression.”
Lickers’s motion said less about Rosen’s appellate repre-
sentation but appeared to take the position that Rosen had
had all he needed to overcome Leon on appeal, notwithstand-
ing Dalton’s failure to develop the record in the district court.
It also criticized Rosen for not pressing a Franks argument on
appeal.

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10 No. 22-1179
In opposing § 2255 relief, the government presented
sworn affidavits from Dalton and Rosen explaining their rea-
sons for not approaching the defense in the ways Lickers
identified. Dalton stated that he had considered Agent Teli-
sak’s omission of the state court’s suppression ruling from the
federal warrant application to be immaterial because it con-
cerned the constitutionality of Lickers’s arrest and was not
“based on a finding that the warrant application lacked prob-
able cause.” He further stressed that “the state suppression
ruling was in no way binding on the District Court.” Rosen,
for his part, explained that he did not raise the issue of Agent
Telisak’s bad faith on direct appeal because it had not been
presented to the district court.
The district court denied Lickers’s motion without hold-
ing an evidentiary hearing. Two considerations proved im-
portant to the district court. As a procedural matter, the dis-
trict court read our decision on direct appeal to establish that
Agent Telisak acted in good faith, a ruling it did not believe
Lickers could relitigate through his § 2255 motion. As a sub-
stantive matter, the district court concluded that Lickers’s in-
effective-assistance claims failed because the state court sup-
pression ruling was immaterial to a proper analysis of the fed-
eral search warrant application.
This appeal followed.
II
Before reaching the merits of any ineffective-assistance
claims, we must determine whether the district court was cor-
rect to conclude that Lickers is procedurally barred from re-
visiting Agent Telisak’s good faith in this post-conviction pro-
ceeding. The government defends that holding under the law

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No. 22-1179 11
of the case doctrine, “a longstanding rule of federal practice,”
Peoples v. United States, 403 F.3d 844, 847 (7th Cir. 2005), that
provides that legal rulings rendered at one stage of a lawsuit
should not, as a general matter, be reexamined in subsequent
stages, see Cannon v. Armstrong Containers Inc., 92 F.4th 688,
701 (7th Cir. 2024).
Although more commonly applied to interlocutory rul-
ings, the law of the case doctrine limits the scope of post-con-
viction review as well. See Peoples, 403 F.3d at 847. We have
repeatedly recognized that when an appellate court decides
an issue in resolving a defendant’s direct criminal appeal, a
defendant “cannot start from scratch [under § 2255] and ask
the judiciary to proceed as if the first resolution had not oc-
curred.” Id.; see also White v. United States, 371 F.3d 900, 902
(7th Cir. 2004); Fuller v. United States, 398 F.3d 644, 648 (7th
Cir. 2005). Invoking that principle here, the government reads
our opinion on direct appeal to have conclusively decided
that Agent Telisak acted in good faith and urges us to adhere
to that ruling as law of the case.
We see things differently. Foremost, we do not believe that
our opinion on direct appeal reached the broad holding the
government ascribes to it. To the contrary, our observation re-
garding Agent Telisak’s good faith rooted itself only in the
limited factual record before us at the time. See, e.g., Lickers,
928 F.3d at 619 (“Ultimately, our review of the record leaves us
of the firm mind that the process that resulted in the applica-
tion for, and execution of, the federal search warrant reflected
good faith on the part of the federal agents.” (emphasis
added)); id. at 620 (“Every indication from the record is that the
federal agents sought and executed the warrant in good
faith.” (emphasis added)). We need not belabor the point,

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12 No. 22-1179
however, because on the broader reading of our direct appeal
opinion preferred by the government, we remain hesitant to
apply the law of the case doctrine.
We have emphasized that the doctrine “is not a strait-
jacket” as it establishes “no more than a presumption” that a
prior ruling should be adhered to, the strength of which “var-
ies with the circumstances.” Avitia v. Metro. Club of Chi., Inc.,
49 F.3d 1219, 1227 (7th Cir. 1995). Indeed, we have long rec-
ognized that issues decided in a direct criminal appeal may
be revisited when “there is … [a] good reason” for doing so,
Fuller, 398 F.3d at 648, or when “the ‘ends of justice’ would be
served” thereby. See Shore v. Warden, Stateville Prison, 942 F.2d
1117, 1123 (7th Cir. 1991) (quoting Sanders v. United States, 373
U.S. 1, 17 (1963)).
At least one very good reason exists for taking a renewed
and broader look at Agent Telisak’s good faith in this post-
conviction proceeding. The core of Lickers’s argument is that
his lawyers’ mistakes prevented him from gathering the evi-
dence he needed to overcome the presumption of good faith
that sunk his direct appeal. The notion that a fact-sensitive le-
gal ruling, made on a record deficient by virtue of alleged in-
effective assistance, should bind a defendant in a collateral at-
tack challenging that very lawyering is a bridge too far for us
on these facts. Were we to chart such a course, we would ef-
fectively foreclose defendants like Jacob Lickers from pursu-
ing habeas relief for ineffective assistance that manifests in an
adverse appellate finding on a material question of fact. We
decline that invitation, at least in the circumstances before us
here. The more just course, in our view, is to give Lickers a
fair opportunity to prove what he believes any reasonable
lawyer would have proved the first time around.

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No. 22-1179 13
So we proceed to the merits of Lickers’s request for relief
under § 2255.
III
A
The Sixth Amendment provides that in all criminal prose-
cutions “the accused shall enjoy the right … to have the As-
sistance of Counsel for his defence.” U.S. Const. amend. VI.
This right guarantees not just the presence of a lawyer, but
instead “the effective assistance of counsel,” Strickland, 466 U.S.
at 686 (emphasis added) (citation omitted), meaning legal ser-
vices that are objectively reasonable. See id. at 687–88.
The Due Process Clauses of the Fifth and Fourteenth
Amendment have been interpreted to guarantee a similar
right to the effective assistance of appellate counsel in a state
or federal defendant’s “first appeal as of right.” Evitts, 469
U.S. at 396; Steele v. United States, 518 F.3d 986, 988 (8th Cir.
2008). Although the Supreme Court has yet to articulate a
standard to govern such claims, see Evitts, 469 U.S. at 392; see
also Fern v. Gramley, 99 F.3d 255, 257 (7th Cir. 1996), we have
tended to review them under the same standard that applies
to Sixth Amendment challenges. See, e.g., Minnick v. Winkleski,
15 F.4th 460, 470–71 (7th Cir. 2021). Neither Lickers nor the
government urges a different approach, so we will follow that
practice here.
Under the Supreme Court’s decision in Strickland v. Wash-
ington, Lickers must demonstrate that the performance of
Daniel Dalton in the district court and Mark Rosen on direct
appeal “fell below an objective standard of reasonableness”
and that their “deficient performance so prejudiced his de-
fense that it deprived him of a fair trial.” Fountain v. United

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14 No. 22-1179
States, 211 F.3d 429, 434 (7th Cir. 2000) (citing Strickland, 466
U.S. at 688–94). These “are at best difficult showings to make.”
Ebert v. Gaetz, 610 F.3d 404, 411 (7th Cir. 2010).
On appeal Lickers continues to insist that Dalton and
Rosen botched his motion to suppress by failing to argue that
Agent Telisak acted in bad faith by omitting the state court’s
suppression ruling from his federal search warrant affidavit.
He also faults each for failing to take appropriate and availa-
ble measures to develop the record on that issue.
In evaluating Dalton and Rosen’s performance, we must
make “every effort … to eliminate the distorting effects of
hindsight.” Strickland, 466 U.S. at 689. As the Supreme Court
explained in Strickland, it can be “all too easy for a court, ex-
amining counsel’s defense after it has proved unsuccessful, to
conclude that a particular act or omission … was unreasona-
ble.” Id. We best resist this temptation by putting ourselves in
defense counsel’s shoes at the time of the challenged acts or
omissions. We must then evaluate—from that perspective—
whether counsel’s “conduct falls within the wide range of rea-
sonable professional assistance,” bearing in mind that “coun-
sel is strongly presumed to have rendered adequate assis-
tance and made all significant decisions in the exercise of rea-
sonable professional judgment.” Id. at 689–90.
B
Reviewing Dalton and Rosen’s actions with these princi-
ples in mind, we agree with the district court that Lickers’s
ineffective-assistance claims fall short. The government con-
cedes on appeal that Agent Telisak was aware of the state
court’s suppression ruling at the time he swore out his federal
search warrant affidavit. And we assume for the sake of

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No. 22-1179 15
argument that had Dalton convinced the district court to hold
a Franks hearing or conducted a more pointed examination of
Officer McVey at the federal suppression hearing that the dis-
trict court did hold, it might have been possible to gather the
kind of evidence needed to overcome the presumption of
good faith that ultimately proved fatal to Lickers’s direct
criminal appeal (or, more straightforwardly, to secure sup-
pression under Franks itself). But even then, Lickers’s claims
fail.
Just because an argument has some remote chance of pre-
vailing does not mean that a lawyer is constitutionally defi-
cient for failing to bring it. Whether a lawyer provides inef-
fective assistance by failing to raise an argument depends in
important part on its likelihood of success. See Goins v. Lane,
787 F.2d 248, 254 (7th Cir. 1986) (“Trial counsel is not obli-
gated to present every conceivable theory in support of the
defense.”); Shaw v. Wilson, 721 F.3d 908, 915 (7th Cir. 2013)
(“Appellate lawyers are not required to present every non-
frivolous claim on behalf of their clients—such a requirement
would serve to bury strong arguments in weak ones.”). Law-
yers cannot be faulted for eschewing the proverbial kitchen
sink and instead focusing on arguments with better odds. Af-
ter all, “trial counsel may undermine the credibility of the de-
fense of his client if he simply presents the court with a bar-
rage of attacks.” Goins, 787 F.2d at 254; see also Strickland, 466
U.S. at 681 (describing advocacy as “an art and not a science”
and taking pains to emphasize that “strategic choices must be
respected” when “based on professional judgment”).
In his affidavit, Dalton anchored his decision not to pursue
the question of Agent Telisak’s good faith in the practical dis-
connect between the content of the state court’s suppression

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16 No. 22-1179
ruling and the nature of the federal warrant application. Sev-
eral considerations lead us to conclude that this rationale was
wholly reasonable in the circumstances of this case.
It would be one thing if the state court’s suppression rul-
ing opined on whether Officer McVey’s state search warrant
affidavit sufficed to support a finding of probable cause. In
that case, as we observed on direct appeal, it could well have
“inform[ed]” the federal court’s determination whether
Agent Telisak’s affidavit, modeled as it was on McVey’s, like-
wise established probable cause. Lickers, 928 F.3d at 619. But
remember that the state court suppression ruling said nothing
about the state search warrant. It was instead premised on the
state court’s conclusion (one with which we disagreed on di-
rect appeal) that Lickers’s arrest in Monmouth Park was un-
constitutional.
At most, then, the state court suppression ruling would
have alerted the district court to the possibility that evidence
described by Agent Telisak in his federal affidavit was the
fruit of an unconstitutional search. Although this is no doubt
generally important information, it is difficult on the actual
facts of this case to see what legal bearing it could have had
on the district judge’s decision to issue the warrant. That sub-
stance of that ruling—with which we later disagreed—was in
no way binding on the district judge. See id. at 620. More im-
portantly, it is not the practice of issuing magistrates to hold
quasi-suppression hearings, before the government brings
federal charges, to determine whether information described
in a search warrant affidavit is the fruit of an unconstitutional
search. Instead, such issues are litigated precisely as they
were in the district court: through a pre-trial motion to sup-
press.

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No. 22-1179 17
In these circumstances, Dalton had no reason to assume
that Agent Telisak omitted information about the state court
suppression ruling with the intent to withhold facts and mis-
lead the federal court into authorizing an unconstitutional
search. And we find this especially so in light of Agent Teli-
sak’s express assurance to the district court that he was seek-
ing the second warrant “out of an abundance of caution” and
to ensure “compl[iance] with the Fourth Amendment.” Agent
Telisak, like attorney Dalton, may simply have believed that
the search warrant application was not the proper time to lit-
igate the constitutionality of Lickers’s arrest.
But even if a reasonably competent attorney would have
entertained serious doubts about Agent Telisak’s good faith,
neither of the steps Lickers believes Dalton should have taken
to explore that issue were so likely to succeed as to make the
failure to pursue them constitutionally problematic. In light
of the factual and logical disconnect we have described be-
tween the state court suppression ruling and the federal
search warrant application, Dalton would have faced consid-
erable difficulty making the substantial preliminary showing
of materiality necessary to obtain a Franks hearing. See
McMurtrey, 704 F.3d at 504–05; Shell v. United States, 448 F.3d
951, 957–58 (7th Cir. 2006).
Our court has long assessed materiality under Franks us-
ing the so-called “hypothetical affidavit” test. Applying it is
usually straightforward. “We eliminate the alleged false state-
ments, incorporate any allegedly omitted facts, and then eval-
uate whether the resulting ‘hypothetical’ affidavit would es-
tablish probable cause.” Betker v. Gomez, 692 F.3d 854, 862 (7th
Cir. 2012). If it would not, the information is material—not
necessarily individually, but at least collectively. Why?

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18 No. 22-1179
Because, in the aggregate, the inclusion or omission from the
affidavit of that bundle of information contributed to an erro-
neous finding of probable cause.
Applying that test is difficult in a case like this, where the
affidavit lacks probable cause even before it is corrected to re-
move the taint of the alleged falsehoods or deceptive omis-
sions. Nonetheless, it is not abundantly clear how the omis-
sion of a state court suppression ruling having no logical con-
nection with the task before an issuing magistrate could be
deemed material under our precedent—particularly where,
as here, the merits of that ruling are erroneous as a matter of
law. We need not take a definitive view of that question, how-
ever. It is enough to observe that any such contention would
be a novel extension of our case law and to reiterate the long-
standing “principle that ‘[t]he Sixth Amendment does not re-
quire counsel to forecast changes or advances in the law.’”
Coleman v. United States, 79 F.4th 822, 831 (7th Cir. 2023) (quot-
ing Lilly v. Gilmore, 988 F.2d 783, 786 (7th Cir. 1993)).
Nor do we believe that it was constitutionally deficient for
Dalton to refrain from questioning Officer McVey about
Agent Telisak at the federal suppression hearing. Having de-
cided to focus his motion to suppress on the constitutionality
of Lickers’s arrest—a strategy which, it is worth emphasizing,
succeeded in the state court—and the adequacy of McVey’s
affidavit to establish probable cause, Dalton can hardly be
blamed for limiting himself to questions relevant to those is-
sues.
All of this prevents us from concluding that Dalton’s fail-
ure to move for suppression under Franks or to probe Agent
Telisak’s knowledge about the state court proceedings in
other ways was so misguided as to fall outside “the wide

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No. 22-1179 19
range of reasonable professional assistance” contemplated by
the Sixth Amendment. See Strickland, 466 U.S. at 689.
To be sure, it is tempting with the benefit of hindsight to
question the wisdom of Dalton’s inattention to Agent Telisak.
But “[a] fair assessment of attorney performance requires that
every effort be made … to evaluate the conduct from coun-
sel’s perspective at the time.” Id. at 689; see also Winfield v.
Dorethy, 956 F.3d 442, 457–58 (7th Cir. 2020). Heeding that ad-
monition here, and applying Strickland’s “strong presumption
that counsel’s conduct” was reasonable, Strickland, 466 U.S. at
689, we conclude that Dalton satisfied the Sixth Amendment’s
demands. Although he may not have provided “perfect rep-
resentation,” Strickland “guarantee[s] … only a reasonably
competent attorney.” Harrington v. Richter, 562 U.S. 86, 110
(2011) (cleaned up). “Just as there is no expectation that com-
petent counsel will be a flawless strategist or tactician, an at-
torney may not be faulted for a reasonable miscalculation or
lack of foresight or for failing to prepare for what appear to
be remote possibilities.” Id.
Our conclusion that Dalton did not provide ineffective as-
sistance compels the same conclusion with respect to Rosen.
By the time Rosen took the reins on direct appeal, Dalton had
neither challenged Agent Telisak’s good faith nor developed
a record on the issue. Lickers suggests that Rosen had all he
needed to overcome Leon’s presumption of good faith. We
disagree. Even assuming Rosen could prove that Agent Teli-
sak knew about the state court’s suppression ruling, it does
not follow, for reasons we have already explained, that Teli-
sak omitted that information in bad faith. Given the state of
the record on appeal, Rosen did not have the evidence neces-
sary to overcome the presumption of good faith under Leon.

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20 No. 22-1179
Finally, to the extent Lickers contends that Rosen should
have challenged the district court’s failure to hold a Franks
hearing, that argument was foreclosed by Dalton’s failure to
move for such a hearing on Lickers’s behalf. To our
knowledge, we have never held that a district court’s failure
to hold a Franks hearing on its own motion can amount to the
kind of “clear” or “obvious” error of which appellate courts
can take notice on plain error review. See United States v.
Olano, 507 U.S. 725, 734 (1993). But assuming without decid-
ing that is a possibility, this is not such a case. Given our con-
clusion that Lickers’s own trial counsel could reasonably re-
frain from moving for a Franks hearing, it follows a fortiori that
the district court did not commit plain error by failing to take
that step either.
We therefore have little trouble concluding that Rosen,
like Dalton, provided Lickers with constitutionally adequate
representation.
IV
This case exemplifies the practical and conceptual difficul-
ties that can arise in our federal system of criminal justice,
where state and federal criminal law often overlap and where
a defendant can by a single act trigger separate prosecutions
by separate sovereigns. In the context of parallel state and fed-
eral proceedings, rulings issued by one court may well bear
on issues faced by the other. Such a scenario raises thorny
questions concerning what obligation, if any, actors within
one system—whether they be law enforcement officers or
prosecutors—have to inform the court of rulings issued by co-
ordinate courts. Though Jacob Lickers is not entitled to the re-
lief he seeks, the issues he pressed on appeal are important
ones. Today’s decision—grounded in the unusual facts of this

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No. 22-1179 21
path-dependent case—takes no position on when, under Leon,
a federal official is obligated to inform a federal court of the
judicial ruling of a coordinate court. All we conclude is that
the link between the state court’s suppression ruling and
Agent Telisak’s federal warrant application was too attenu-
ated to obligate Daniel Dalton and Mark Rosen under Strick-
land to explore the possibility that its omission was a product
of bad faith.
For these reasons, we AFFIRM.

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