United States v. Victor Mason , 774 F.3d 824 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-8042
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VICTOR EUGENE MASON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, Senior
District Judge. (3:06-cr-00607-CMC-1; 3:12-cv-02757-CMC)
Argued: September 16, 2014 Decided: December 18, 2014
Before WILKINSON and GREGORY, Circuit Judges, and Henry E.
HUDSON, United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by published opinion. Judge Wilkinson wrote the
majority opinion, in which Judge Hudson joined. Judge Gregory
wrote an opinion concurring in part and dissenting in part.
ARGUED: Nathan S. Mammen, KIRKLAND & ELLIS LLP, Washington,
D.C., for Appellant. James Hunter May, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON
BRIEF: William Fink, KIRKLAND & ELLIS LLP, Washington, D.C., for
Appellant. William N. Nettles, United States Attorney, Jimmie
Ewing, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.
WILKINSON, Circuit Judge:
Petitioner Victor Mason was convicted by a jury of one
count of conspiracy to possess with intent to distribute five or
more kilograms of powder cocaine in violation of 21 U.S.C.
§§ 841(a)(1) and 846. His arrest followed a traffic stop on
Interstate 20 in Georgia. He now brings a 28 U.S.C. § 2255
petition challenging his conviction on grounds of ineffective
assistance of counsel. He makes several claims, among them his
attorneys’ failure to raise both a racially selective law
enforcement argument and a Fifth Amendment violation before the
trial court and on direct appeal. The district court rejected
Mason’s claims, and for the following reasons, we affirm.
I.
A.
On August 12, 2005, Georgia State Trooper Blake Swicord
stopped Victor Mason, who was driving eastbound on Interstate
20, in Morgan County, Georgia. Trooper Swicord initiated the
stop because he suspected the vehicle’s windows were tinted in
excess of the lawful limit. When the officer activated his blue
lights, audio and video equipment in the patrol car
automatically began recording. Trooper Swicord testified that
after stopping Mason several things aroused his suspicion,
including the fact that Mason had not immediately pulled over,
that the car smelled strongly of air freshener and that there
2
was no visible luggage. He asked Mason to step out of the car
and questioned both occupants of the vehicle – Mason, who was
driving, and his cousin Nathaniel Govan, who occupied the
passenger seat. Mason explained to Trooper Swicord that he had
borrowed the car from his daughter and that the men had driven
to Atlanta to visit Mason’s uncle and see about a deed. Govan
told a different story, saying that they had driven to see a
friend.
Noticing a newspaper from the Radisson Hotel in the
backseat, which matched neither story, Trooper Swicord suspected
that the two men had lied about where they had been and were
involved in criminal activity. Trooper Swicord returned to the
patrol car to radio Sergeant Michael Kitchens, and ask him to
come to the scene with his drug-detection dog: “When you get
through with that . . . come on over here to me, right here. I
got something right here. These guys are spooky, spooky.” J.A.
at 98. Returning to the stopped vehicle, the police officer
tested the window tinting -- finding it above the legal limit --
and again walked back to his patrol car. He radioed in Mason and
Govan’s names and dates of birth, asking the dispatcher to “just
hold ‘em for right now.” See J.A. at 100. Returning to Mason
and Govan’s car, he gave Mason a warning ticket for the illegal
tint, completing the traffic stop.
3
However, instead of releasing Mason and Govan, he requested
consent to search the vehicle, asking specifically if Mason had
“any drugs in the car.” See J.A. at 100. Mason declined to
consent to a search. Trooper Swicord asked Govan to exit the
vehicle, by which point Sergeant Kitchens had arrived with his
drug-detection dog. The dog alerted to the presence of
narcotics, at one point jumping into the backseat through the
open driver-side window. At that point, Trooper Swicord
proceeded to search the vehicle. In the trunk, he found a black
gym bag containing approximately ten kilograms of powder
cocaine.
Trooper Swicord arrested both Govan and Mason, read them
their Miranda rights, and placed them in the backseat of the
patrol car. The audio and video recording equipment chronicled
the conversation between the men. Although Govan did most of the
talking, Mason also participated in the conversation as they
discussed the traffic stop and the fact that both men were on
probation at the time of the arrest.
B.
Mason was indicted and charged in the District of South
Carolina with conspiracy to possess with intent to distribute
more than five kilograms of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1) and 846. Prior to trial, Mason filed a motion to
suppress the evidence, challenging the extension of the traffic
4
stop and the car search on Fourth Amendment grounds. See United
States v. Mason, 628 F.3d 123, 127 (4th Cir. 2010). He argued
that Trooper Swicord “lacked reasonable suspicion to detain him
beyond completion of the traffic stop,” and that “the dog’s
entry into his vehicle was not supported by probable cause.” Id.
At the suppression hearing, Trooper Swicord testified that
he called Sergeant Kitchens for backup because he “felt like we
were fixing to have a violent confrontation” as “Mr. Mason and
Mr. Govan are older black males that are not in good shape” and
he thought they were likely “fixing to shoot it out.” See J.A.
at 34-35. The district court denied Mason’s motion to suppress
and a two-day jury trial followed.
At trial, Govan, who had pled guilty, served as the primary
witness against Mason. Govan testified that he had put the bag
in the trunk, that he had not looked in the bag, and that he did
not know whether Mason knew there were drugs in the bag.
However, he did suggest that Mason knew the purpose of the trip
based on a prior conversation between the two. The government
introduced the video and a transcript of the conversation
between Govan and Mason in the patrol car into evidence. Mason
chose not to testify, and his attorney focused on calling into
question Govan’s credibility as a witness.
During closing argument, in his rebuttal, the prosecutor
referenced the conversation, arguing that if Mason did not know
5
what was in the trunk, he would have been more surprised by the
discovery of drugs:
Ladies and gentlemen, if Mr. Mason didn’t know that
there were 10 bricks of cocaine in that car, do you
really think that’s how that conversation in the back
of that patrol car would have gone? . . . When they
stacked those ten kilos up, if nobody expected those
to be there, somebody is going to be real upset. . .
That is not what the transcript and the audio that you
could hear in their conversation shows. What it shows,
nobody was surprised.
J.A. at 402-03.
The jury convicted Mason and he was sentenced under 21
U.S.C. § 841(b)(1)(A) to life imprisonment based on the quantity
of drugs and his prior criminal record. He appealed, challenging
the lawfulness of extending the traffic stop, the search by the
drug dog, and the use of prior convictions in sentencing. He did
not challenge the fact that Trooper Swicord had “‘probable cause
to believe that a traffic violation [had] occurred’” sufficient
to initiate the stop of Mason’s vehicle. United States v.
Sowards, 690 F.3d 583, 588 (4th Cir. 2012) (quoting Whren v.
United States, 517 U.S. 806, 810 (1996)). On appeal, this court
concluded that “the objective facts facing Trooper Swicord
created a reasonable suspicion of criminal activity and that he
was therefore justified . . . in extending the stop.” Mason, 628
F.3d at 130. In addition, this court found probable cause to
justify the search of the vehicle. The fact that the drug dog
alerted several times outside the vehicle “creat[ed] probable
6
cause to believe that narcotics were present even prior to the
dog’s entry into the vehicle.” Id. Mason’s conviction became
final on October 3, 2011, when the United States Supreme Court
denied his petition for writ of certiorari.
On September 21, 2012, Mason filed a § 2255 petition for
collateral relief, alleging ineffective assistance of counsel at
both the trial and appellate proceedings. 1 Petitioner asserted
ineffective representation on five grounds, including -- at
issue here -- failure to raise an Equal Protection challenge
alleging racially selective law enforcement and failure to raise
a possible violation of his Fifth Amendment rights based on the
government’s trial reference to his post-arrest silence. The
district court denied his petition on the merits. This court
granted petitioner a certificate of appealability on the Equal
Protection question on August 1, 2013, and a separate
certificate on the Fifth Amendment question on May 23, 2014.
II.
Mason first contends that he received ineffective
assistance because counsel declined to raise an Equal Protection
claim of racially selective law enforcement. For this court to
find ineffective assistance of counsel, Mason must demonstrate
both that his counsel’s performance fell below the standard of
1
Petitioner was represented by two separate attorneys at
trial and on direct appeal.
7
objective reasonableness and that the deficient performance was
prejudicial to his defense. See Strickland v. Washington, 466
U.S. 668, 687-88 (1984). This he cannot do.
A.
It is important at the outset to emphasize the basic lesson
of Strickland v. Washington: “[j]udicial scrutiny of counsel’s
performance must be highly deferential.” Id. at 689. It is “all
too tempting for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence, and it is all
too easy for a court, examining counsel’s defense after it has
proved unsuccessful, to conclude that a particular act or
omission of counsel was unreasonable.” Id. Thus, an evaluation
of attorney performance requires that “every effort be made to
eliminate the distorting effects of hindsight.” Id. Further, we
must “indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.”
Id. Attorneys need not raise every possible claim to meet the
constitutional standard of effectiveness. They are permitted to
set priorities, determine trial strategy, and press those claims
with the greatest chances of success. See Evans v. Thompson, 881
F.2d 117, 124 (4th Cir. 1989). In fact, there are “countless
ways to provide effective assistance in any given case.”
Strickland, 466 U.S. at 689. “Even the best criminal defense
8
attorneys would not defend a particular client in the same way.”
Id.
The “right to effective assistance of counsel extends to
require such assistance on direct appeal” as well as at trial.
Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000) (en banc)
(applying the Strickland standard to claims of ineffective
assistance of counsel during appellate proceeding). We likewise
presume that appellate counsel “decided which issues were most
likely to afford relief on appeal.” Pruett v. Thompson, 996 F.2d
1560, 1568 (4th Cir. 1993). Effective assistance of appellate
counsel “does not require the presentation of all issues on
appeal that may have merit.” Lawrence v. Branker, 517 F.3d 700,
709 (4th Cir. 2008). As a general matter, “‘only when ignored
issues are clearly stronger than those presented’” should we
find ineffective assistance for failure to pursue claims on
appeal. Smith v. Robbins, 528 U.S. 259, 288 (2000) (quoting Gray
v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)).
Mason’s counsel, by choosing to pursue a Fourth Amendment
claim rather than an Equal Protection challenge, acted
effectively under the aforementioned standards. To find
otherwise would involve the very course of hindsight and the
very faulting of counsel for raising stronger rather than weaker
claims that the Supreme Court has insisted we avoid. It would be
wholly wrong to find ineffective assistance of counsel when
9
Mason’s attorneys diligently pursued the claims they quite
reasonably believed to be the most likely to succeed. See Smith,
528 U.S. at 288. Although it is frequently raised, a finding of
ineffective assistance of counsel still carries a significant
stigma for members of the profession. We decline to tar Mason’s
attorneys with this brush. The bar for censure is not so low.
The Fourth Amendment challenge to the extension of the
traffic stop and the dog search was an obvious one. Competent
attorneys would instinctively have examined such a claim where
defendant’s case arose from a police stop, an extension of said
stop, and a subsequent search of the vehicle. The factual
context plainly implicates the Fourth Amendment. Even though the
claim was ultimately unsuccessful, it would be anomalous to
characterize Mason’s attorneys as ineffective for pursuing it.
In fact, a panel of this court heard argument on the contention,
wrote extensively on it, and responded to a thoughtful
dissenting opinion. See generally Mason, 628 F.3d 123. There can
be no plausible suggestion made that Mason’s attorneys were
anything but capable and competent in pursuing the Fourth
Amendment challenge. Id.
B.
By contrast to the well-settled path of Fourth Amendment
challenges, the racially selective law enforcement claim was a
long shot. The Constitution “prohibits selective enforcement of
10
the law based on considerations such as race.” Whren, 517 U.S.
at 813. Mason claims that he and Govan were singled out for the
window tint violation (disproportionately associated with
minority drivers), that the officer described them as “spooky,”
waited for backup because they were “older black men that are
not in good shape” and likely to “shoot it out,” and kept them
on the side of the road and searched the car. All of this, he
says, suggests an impermissible race-based motivation underlying
Trooper Swicord’s conduct. Appellant’s Br. at 18-22.
As the district court recognized, counsel were not
ineffective in appreciating the difficulty of this course. This
court has adopted the standard the Supreme Court set forth in
United States v. Armstrong, 517 U.S. 456 (1996), for cases of
racially animated law enforcement. See United States v. Bullock,
94 F.3d 896, 899 (4th Cir. 1996). The defendant must show both
“discriminatory effect and that [the officer’s action] was
motivated by a discriminatory purpose.” Armstrong, 517 U.S. at
465 (quoting Wayte v. United States, 470 U.S. 598, 608 (1985)).
Both the Supreme Court and this court have explained why this is
a difficult contention on which to prevail. A selective law
enforcement claim “asks a court to exercise judicial power over
a special province of the Executive.” Id. at 464 (internal
quotation marks omitted). In light of “the great danger of
unnecessarily impairing the performance of a core executive
11
constitutional function,” petitioners must demonstrate “clear
evidence” of racially animated selective law enforcement. United
States v. Olvis, 97 F.3d 739, 743 (4th Cir. 1996).
This “standard is intended to be a ‘demanding’ and
‘rigorous’ one.” Id. (quoting Armstrong, 517 U.S. at 463, 468).
Counsel can hardly be deemed ineffective for taking the Supreme
Court’s own statements as to its difficulty and as to its
separation of powers implications into account. To show
discriminatory effect, petitioner must demonstrate, inter alia,
that “similarly situated individuals of a different race” were
not similarly targeted by law enforcement. Olvis, 97 F.3d at 743
(quoting Armstrong, 517 U.S. at 465). Here, for example, there
was no evidence of similarly situated whites being treated
differently. See Armstrong, 517 U.S. at 470 (“[I]f the claim of
selective prosecution were well founded, it should not have been
an insuperable task to prove that persons of other races were
being treated differently.”).
In sum, the Armstrong burden is a demanding one and Mason
has failed to identify any cases at the Supreme Court or in this
circuit where an Armstrong violation for selective law
enforcement has been found. Fourth Amendment claims, by
contrast, are often successful. See, e.g., United States v.
Massenburg, 654 F.3d 480 (4th Cir. 2011) (finding officer lacked
reasonable suspicion sufficient to justify search of suspect on
12
foot). More specifically, several Fourth Amendment infringements
have been found recently as to car searches, the very context,
if not the precise facts, that counsel was confronting here.
See, e.g., United States v. Powell, 666 F.3d 180 (4th Cir. 2011)
(finding officer lacked reasonable suspicion to frisk passenger
in extension of routine traffic stop).
To be sure, the two challenges are not, at least as a
technical matter, mutually exclusive. See, e.g., Whren, 517 U.S.
at 813. However, one is clearly more likely to be successful
than the other. Attorneys can be selective and strategic without
risking an ineffective assistance of counsel claim. See
Strickland, 466 U.S. at 689. We have consistently made clear
that we do not penalize attorneys for failing to bring novel or
long-shot contentions. See, e.g., United States v. McNamara, 74
F.3d 514, 516 (4th Cir. 1996) (novel claims); see also Pruett,
996 F.3d at 1568 (long-shot claims). Attorneys exist to exercise
professional judgment, which often involves setting priorities.
See Bell, 236 F.3d at 164. Indeed, it can be positively
detrimental to a client’s chances not to set priorities but
rather to scattershot the case by raising every objection at
trial and pressing every imaginable contention on appeal. In
fact, “‘[w]innowing out weaker arguments on appeal and focusing
on those more likely to prevail . . . is the hallmark of
13
effective appellate advocacy.’” Id. (quoting Smith v. Murray,
477 U.S. 527, 536 (1986)) (brackets in original).
Mason’s attorneys, on this record, chose to pursue a
challenge under the Fourth Amendment to the extension of the
traffic stop and to the K-9 search that led to his arrest. See
United States v. Mason, 628 F.3d 123 (4th Cir. 2010). The vast
majority of attorneys would have chosen this exact same course
as the most effective defense for their client and the path most
likely to succeed. We cannot say Mason’s attorneys were
ineffective for choosing the route more commonly tread and more
likely to be successful before the district and appellate
courts.
C.
Mason also contends that the district court should have
held an evidentiary hearing to evaluate whether counsel were
ineffective for failing to raise an Equal Protection claim. See
Appellant’s Br. at 29. He argues that, even if the current
record is insufficient to support a claim of racially animated
law enforcement, Trooper Swicord’s testimony at the suppression
hearing and at trial provides grounds for an evidentiary
hearing. However, the district judge was quite familiar with the
facts, as well as the performance of counsel. That judge had
presided over the suppression hearing and the trial, as well as
on collateral review. In fact, the extension of the stop as well
14
as the search, indeed every phase of police activity in this
case, has been subject to a hearing. We see no need now to
remand for a further repetitive exercise.
Although claims of racially selective law enforcement and
challenges under the Fourth Amendment are not identical, they
certainly overlap. Here, this court had determined that the
“objective facts facing Trooper Swicord created a reasonable
suspicion of criminal activity” such that no violation of the
Fourth Amendment occurred. Mason, 628 F.3d at 130. Where there
exists an objectively reasonable basis for the officer’s conduct
after rigorous challenge, it is even less likely that an
Armstrong claim would get off the ground. One can debate
endlessly the implications of this or that, but the overall
picture borne out by this record is that of an officer who
reasonably suspected criminal activity was afoot and called for
backup to further the objectives of law enforcement and to
ensure his personal safety. We see nothing to impeach the
district court’s conclusion that what happened here was a
standard law enforcement procedure done in a manner that this
court previously found to be objectively well-grounded. See
Mason, 628 F.3d 123.
To begin, the stop could not have been racially motivated
because the tinted windows prevented the officer from
identifying the race of the occupants. In fact, the very purpose
15
of window tinting is to prevent outside observers from seeing
who occupies or what is happening in the vehicle. Officers
cannot just cease enforcement efforts where there is an
objective reason to believe that there has been a violation of
the law. To surmise a race-based reason for the stop or Trooper
Swicord’s call for backup is to fault competent attorneys for
not undertaking a stretch. The overpowering scent of air
freshener -- often used to cover the smell of drugs -- the
conflicting stories offered by Govan and Mason, the newspaper
from the hotel, and the lack of luggage all provided in the
considered judgment of the prior panel, a sufficient and
reasonable basis for Trooper Swicord to suspect criminal
activity was afoot. See Mason, 628 F.3d at 128-29.
Moreover, Trooper Swicord was by himself facing two
suspects on a route where drug trafficking was common. He was
entitled to call for backup, which again is altogether routine,
especially in a situation that could quickly escalate. Trooper
Swicord at trial testified that “another officer on the
scene . . . deters multiple suspects from trying something” that
they might have tried with only one officer present. J.A. at
179. The parties likewise seek to parse and debate at some
length the officer’s use of the terms “spooky” and “older black
males.” In the overall context of this case, however, the high
bar of Strickland cannot be satisfied, given the reasonable
16
strategic decision of Mason’s attorneys to prioritize the Fourth
Amendment claims. Both the trial court and this court approved
of Trooper Swicord’s overall assessment of what was transpiring
in his presence. See Mason, 628 F.3d at 128. That counsel did
not succeed in their vigorous challenge of Trooper Swicord’s
actions is due to no fault of their own, but rather attributable
to the stubborn facts of a difficult case. 2
We do not suggest that all lawyers are presumptively
capable or that racially motivated police actions can be
overlooked even where there is reasonable suspicion of criminal
activity. See Whren, 517 U.S. at 813. Nor do we submit that
Armstrong challenges can never be successful. The facts of this
case, however, do not suggest a successful Armstrong claim and
certainly not to the extent that counsel was ineffective in
failing to raise it. No one disputes that racial discrimination
in both its overt and subtle forms continues to exist. But to
feel sadness and dismay at the persistence of prejudice is not
to say that larger social shortcomings should come crashing down
2
Our friend in dissent does not contest either the vigor
with which Mason’s counsel pursued the Fourth Amendment claim
or, indeed, the overall defense put forth by these lawyers for
their client. In short, they did a good job. It is all too easy
to pore over the record, pick out a single item in hindsight,
and say that this bore further investigation. Lawyers who do a
good job deserve to be free of the Monday morning (or years
later) quarterbacking that the Supreme Court in Strickland asked
us to avoid.
17
upon two competent attorneys’ shoulders. Such scapegoating would
betray the noblest ends of law. We cannot fault Mason’s counsel
for believing their client’s far better chance in challenging
this sequence of events lay with the Fourth Amendment, not the
Equal Protection Clause. From a broader perspective, the record
shows Mason received competent representation throughout these
proceedings, a fact that the Supreme Court does not allow the
eye of ever wiser hindsight to undo.
III.
Mason also contends that he received ineffective assistance
because counsel failed to properly challenge the use of his
post-arrest silence in the prosecutor’s closing remarks. He
argues that the prosecutor’s suggestion that Mason did not
express sufficient surprise at the presence of drugs in his car
in his post-arrest conversation with Govan violated his Fifth
Amendment rights as set forth by the Supreme Court in Doyle v.
Ohio, 426 U.S. 610 (1976). Doyle, however, does not apply here.
In Doyle, the defendant was arrested for selling marijuana
to a police informant and was given Miranda warnings. Id. at
611-12. At trial, he argued that he had been framed by the
informant. Id. at 612. The government, unable to present direct
evidence to contradict his story, tried to impeach his testimony
by repeatedly asking why he had remained silent instead of
giving that story to the arresting officer. Id. at 613-14. The
18
Supreme Court held that where a person has been informed of his
Miranda rights, it violates due process to allow the government
to suggest the jury draw unfavorable inferences from his choice
to remain silent. See id. at 619. However, a defendant who
voluntarily speaks following Miranda warnings has neither been
induced to speak nor remained silent. See Anderson v. Charles,
447 U.S. 404, 408 (1980).
Here Mason spoke voluntarily with Govan in the back of the
police car after he had been given his Miranda warnings. The
conversation was not part of a custodial interrogation; indeed
it was not initiated by law enforcement at all. Mason did not
contest at trial that he engaged in the conversation in the
patrol car and his attorney challenged statements that were made
by Govan but inadvertently attributed to Mason in the transcript
seen by the jury. Mason’s counsel even attempted to use the
conversation herself to support the theory of Mason’s defense:
that he was unaware of the drugs in the car. See J.A. at 394.
Conversation that is not the product of interrogation – speech
that is not compelled – does not fall under Doyle’s protection
of the Fifth Amendment “right to remain silent.” Doyle, 426 U.S.
at 617. Rather, Doyle ensures that defendants who have been
informed of their right to remain silent can do so even in the
face of persistent police interrogation without fear of
repercussions at trial. See Doyle, 426 U.S. at 618-19 (“[W]hile
19
it is true that the Miranda warnings contain no express
assurance that silence will carry no penalty, such assurance is
implicit to any person who receives the warnings.”). Mason had
been warned that anything he said could be used against him. We
do not fault the prosecutor for doing so at trial, and we do not
fault Mason’s attorneys for declining to pursue a non-existent
Doyle violation in this case.
IV.
For the foregoing reasons, we affirm the district court’s
judgment that counsel was not ineffective in this case.
AFFIRMED
20
GREGORY, Circuit Judge, concurring in part and dissenting in
part:
I concur in the majority’s decision to affirm a) the
district court’s dismissal of Mason’s ineffective assistance
claims against his appellate counsel, and b) the dismissal of
his claim that his trial counsel was ineffective for failing to
raise a Fifth Amendment challenge. Mason also contends that,
“[i]n light of the evidence of racially motivated law
enforcement and Trooper Swicord’s admitted selective enforcement
of the window tint law,” Appellant’s Br. 26, his trial counsel
provided ineffective assistance by failing to develop an equal
protection challenge. The majority affirms the district court’s
dismissal of this claim. I respectfully dissent.
Mason’s trial counsel faced a record that included:
Trooper Swicord’s admission that he uses window tint violations
to “fish” for vehicles that “peak[ his] interest”, statements
about Mason’s behavior that are directly contradicted by video
footage of the stop, use of the word “spooky” to describe Mason
and his cousin, an inexplicable reference to Mason’s race as a
justification for expecting violence, and actions inconsistent
with Trooper Swicord’s alleged concern for his safety. And yet
Mason’s trial counsel not only failed to raise an Equal
Protection Clause challenge, but also neglected even to
investigate a single one of these red flags to determine whether
such a challenge was viable. If Trooper Swicord’s actions were
driven by legitimate concerns rather than racial bias, a
clarifying line of inquiry would have afforded him the
opportunity to make his motivations clear. If, on the other
hand, Trooper Swicord did target Mason because of his race, the
attorney’s investigation would have given Mason a chance to
challenge the constitutional violation. Instead, both Mason’s
and Trooper Swicord’s narratives remain incomplete. Trial
counsel’s deficient performance caused Mason to suffer prejudice
at trial, and cannot satisfy the Sixth Amendment’s guarantee of
effective assistance of counsel. For these reasons, I would
reverse the district court on this issue.
The majority correctly notes that the standard for
establishing ineffective assistance of counsel is deferential to
attorneys. See Strickland v. Washington, 466 U.S. 668, 689
(1984). But reasonableness is the touchstone of this inquiry,
and an attorney who acts unreasonably in representing her client
has not provided counsel that can pass constitutional muster.
Id. at 687. Furthermore, while strategic decisions based on an
attorney’s thorough investigation are “virtually
unchallengeable,” “strategic choices made after less than
complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limitations
on investigation.” Id. at 690-91. The Court in Strickland
22
recognized that “counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Id. at 691.
To determine whether Mason’s trial counsel was deficient
for failing to develop a selective enforcement claim, we must
examine the claim itself. The Equal Protection Clause prohibits
officers from selectively enforcing laws based on race. Whren
v. United States, 517 U.S. 806, 813 (1996). When determining
whether a traffic stop was unconstitutionally selective, this
Court applies the selective prosecution standard laid out in
United States v. Armstrong, 517 U.S. 456 (1996). See United
States v. Bullock, 94 F.3d 896, 899 (4th Cir. 1996). The
claimant must show that the enforcement policy 1) “had a
discriminatory effect,” and 2) “was motivated by a
discriminatory purpose.” Armstrong, 517 U.S. at 465.
To prove a discriminatory effect, Mason’s counsel would
have had to show that similarly situated persons of a different
race were not subject to traffic stops. Id. at 465. Trooper
Swicord admitted that he must enforce the window tint law
selectively because violations are too numerous. He stated at
trial that he uses the law to “fish” for other violations, and
that he stops any vehicle that “peaks [his] interest.” Mason’s
trial counsel did not ask Trooper Swicord to elaborate on this
pronouncement, nor did she question him about the racial makeup
23
of those he stops. Mason also presents evidence that window
tint laws in other jurisdictions have an association with
complaints of racial profiling. See, e.g., Police Complaints
Board, MPD Enforcement of the District’s Window Tint Law (Nov.
21, 2013) (reporting that African American motorists filed 97
percent of complaints related to window tint law enforcement).
Although this evidence cannot prove a discriminatory effect in
Georgia, it is relevant to the question of whether counsel’s
decision not to investigate discriminatory effect was
reasonable. 1 The fact that window tint laws have been linked to
racial discrimination in other jurisdictions, combined with
Trooper Swicord’s admittedly subjective enforcement of Georgia’s
window tint law, may not be sufficient standing alone. But
coupled with the evidence suggesting discriminatory purpose
discussed below, these facts would have motivated a reasonable
attorney to investigate a potential discriminatory effect.
“[D]iscriminatory purpose may often be inferred from the
totality of the relevant facts.” Washington v. Davis, 426 U.S.
229, 242 (1976). Here, several facts suggest that race may have
1
Mason need not prove that investigation would have
produced evidence of discriminatory effect in order to show that
his counsel’s failure to investigate was unreasonable. See
Becton v. Barnett, 920 F.2d 1190, 1193-94 (4th Cir. 1990)
(holding that defendant was entitled to an evidentiary hearing
on his claim that counsel was ineffective for failing to
investigate his mental capacity even though he had not proven he
was mentally incompetent at trial).
24
motivated Trooper Swicord’s actions. Trooper Swicord admitted
to using window tint violations to “fish” for other violations. 2
He testified that he became suspicious when Mason failed to pull
over quickly, but the video of the traffic stop shows that Mason
began to pull over mere seconds after Trooper Swicord activated
his blue lights. Right after pulling Mason over, Trooper
Swicord questioned Mason and Govan about matters unrelated to
the window tint before testing the windows’ transparency.
Trooper Swicord testified that Mason appeared nervous and
refused to make eye contact, but the video of the stop
contradicts this assessment. After questioning Mason and Govan,
Trooper Swicord called for backup, referring to Mason and Govan
as “spooky, spooky.” 3 At the suppression hearing, when asked why
he called for backup, Trooper Swicord stated that he feared the
situation would turn violent, noting that “Mr. Mason and Mr.
Govan are older black males that are not in good shape.” He did
not explain why he felt Mason and Govan’s race was relevant to
his belief that they were likely “fixing to shoot it out,” and
Mason’s counsel did not ask. Furthermore, Trooper Swicord’s
actions were not those of an officer fearing for his safety. He
2
Mason’s window transparency was 26 percent, just slightly
below the legal minimum of 32 percent plus or minus three
percent. Ga. Code § 40-8-73.1(b)(2).
3
As Mason points out, the term “spook” is a racial epithet.
See Oxford English Dictionary (2d ed. 1989) (defining “spook” as
“[a] derogatory term for a black person”).
25
left Mason standing outside the car and turned his back on him
while he questioned Govan. He called in Mason and Govan’s
names, but asked that the dispatcher “[j]ust hold em for right
now” rather than provide a background check. He contacted a
specific K9 officer instead of placing a general call for
backup.
Perhaps each of these facts could be explained away. Maybe
Trooper Swicord did not mean “spooky” to be a racial epithet.
Maybe something other than Mason and Govan’s race “peaked [his]
interest.” Maybe he was simply using “older black males” as an
identifier (although it is difficult to see why such a
description would be relevant in the context of providing
justification for calling backup). But we do not know why
Trooper Swicord did what he did, because Mason’s counsel did not
question him about his race-related references or the
contradictions between his testimony and the video of the stop.
These numerous red flags, when viewed as a whole, would lead any
reasonable attorney to investigate whether Trooper Swicord had a
discriminatory motive for initiating and continuing the traffic
stop.
The majority asserts that “the stop could not have been
racially motivated” because the window tint would have prevented
Trooper Swicord from identifying the occupants’ race before
pulling them over. This contention, which was raised for the
26
first time by the government on appeal, finds no support in the
record. In fact, it is directly contradicted by Trooper
Swicord’s testimony that he was parked on the median when Mason
drove by (thereby giving him a view through the clear windshield
of the vehicle) and that he could observe Mason and Govan
speaking to each other before pulling over. When, as here, the
district court denies a § 2255 motion without holding an
evidentiary hearing, “we review the facts in the light most
favorable to the § 2255 movant.” United States v. Poindexter,
492 F.3d 263, 267 (4th Cir. 2007). At the very least, this is a
disputed material fact that merits an evidentiary hearing.
United States v. White, 366 F.3d 291, 297 (4th Cir. 2004).
The majority believes that Mason’s counsel acted
competently because she pursued a Fourth Amendment claim instead
of a selective enforcement claim. But as the majority itself is
forced to admit, Fourth Amendment and Equal Protection Clause
challenges are not mutually exclusive. And while the standard
for effective appellate counsel presumes that an attorney acts
reasonably in choosing to pursue one claim over another, see,
e.g., Smith v. Robbins, 528 U.S. 259, 287-88 (2000), the
standard for trial counsel makes no such presumption. The fact
that counsel was advancing a Fourth Amendment claim did not
relieve her of her duty to conduct a reasonable investigation
into a selective enforcement claim.
27
Counsel’s failure to develop a selective enforcement claim
prejudiced Mason. Although the majority makes much of the fact
that Armstrong sets a high bar for showing selective
enforcement, Mason need only establish a reasonable probability
that the outcome of the proceeding would have been different but
for counsel’s deficient performance. Strickland, 466 U.S. at
694. Given Trooper Swicord’s subjective criteria for pursuing
potential window tint violations, his race-tinged remarks, and
the inconsistencies between his testimony and the traffic stop
video, it is at least reasonably probable that Mason’s trial
counsel could have mounted a meritorious selective enforcement
claim, and that such a claim would have resulted in Mason’s
freedom. A successful Equal Protection Clause challenge would
have required dismissal of charges, or at the very least
suppression of key evidence obtained during the traffic stop.
See United States v. Steele, 461 F.2d 1148, 1151 (9th Cir. 1972)
(“A defendant cannot be convicted if he proves unconstitutional
discrimination in the administration of a penal statute.”
(citing Two Guys from Harrison-Allentown, Inc. v. McGinley, 366
U.S. 582, 588 (1961))).
Of course the record does not conclusively establish a
successful Equal Protection Clause challenge; trial counsel did
not develop such a claim. Strickland makes clear that counsel
cannot escape accountability for failing to pursue a course of
28
action simply by making a “strategic choice.” To withstand
constitutional scrutiny, such a choice must be based on either a
reasonable investigation or a reasonable decision that
investigation was unnecessary. 466 U.S. at 690-91. Here,
Mason’s trial counsel was confronted with numerous indicators
that race may have motivated Trooper Swicord’s actions, but she
did not investigate these red flags. Her failure to develop an
Equal Protection Clause challenge in the face of this record
cannot meet the standard for effective assistance guaranteed by
the Sixth Amendment. Both Trooper Swicord’s and Mason’s
narratives remain shrouded in uncertainty; at the very least, an
evidentiary hearing is required. I dissent from the majority’s
holding on this issue.
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