United States v. Victor Mason

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

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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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