Argued September 16, 2014.
Appeal from the United States District Court for the District South Carolina, at Columbia. (3:06-cr-00607-CMC-1; 3:12-cv-02757-CMC). Cameron McGowan Currie, Senior District Judge.
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.
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.
Before WILKINSON and GREGORY, Circuit Judges, and Henry E. HUDSON, United States District Judge for the Eastern District of Virginia, sitting by designation. Judge Wilkinson wrote the majority opinion, in which Judge Hudson joined. Judge Gregory wrote an opinion concurring in part and dissenting in part.
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.
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 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.
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.
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 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 what was in the trunk, he would have ...