I understand the conclusions of the court in New v. United States, 2011 U.S. App. LEXIS 18157 (8th Cir. August 31, 2011).
Defendant in his § 2255 failed to show that defense counsel was ineffective for not arguing that he had a reasonable expectation of privacy in a hospital room. He cited no controlling case law. The law is unsettled on that at best, and no case from the Eighth Circuit is in point. Defense counsel is [essentially] not charged with being ineffective for not arguing that the law should be changed.
However, I disagree as a practice matter, or as NJAG would say, as a “best practice,” that a defense counsel should not be looking for reasonable arguments for a change in the law. Especially when there is a “split of authority” (which could include one between the federal circuits and CAAF), or there are ongoing arguments why a particular law is wrong. We have seen that most frequently in the Crawford-Blazier string of litigation and litigation about Article 120.
h/t fourthamendment blog.