UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 24, 2008
No. 06-41558
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LEAMON RAY CAVITT, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
Before GARZA and ELROD, Circuit Judges, and HICKS,* District Judge.
S. MAURICE HICKS, JR., District Judge:
Leamon Ray Cavitt, Jr. appeals the district court’s denial of his Motion to
Vacate Conviction, filed pursuant to 28 U.S.C. § 2255. We vacate the judgment
of the court below and remand for an evidentiary hearing.
I. BACKGROUND
On October 28, 2002, Texas State Trooper Nick Granelli (“Granelli” or “the
trooper”) stopped Leamon Ray Cavitt, Jr.(“Cavitt”) on U.S. Highway 75 after
observing him speeding in a construction zone and failing to signal before
changing lanes. A search of the rented Dodge Grand Caravan mini-van driven
*
District Judge of the Western District of Louisiana, sitting by designation.
by Cavitt revealed five kilograms of cocaine.
On November 14, 2002, Cavitt was indicted on one count of possession
with intent to distribute five kilograms or more of a substance containing a
detectable amount of cocaine in violation of 21 U.S.C. § 841(a)(1), and aiding and
abetting under 18 U.S.C. § 2. Represented at his initial appearance on April 30,
2003 by the Federal Public Defender, Cavitt entered an initial plea of not guilty.
Subsequently, through retained counsel Barrett Keith Brown (“Brown”) and
pursuant to a written plea agreement that included a waiver of all rights to
appeal, Cavitt changed his plea on the possession charge to guilty.
A video camera mounted inside the patrol car and a microphone attached
to Trooper Granelli’s clothing recorded the entire encounter between Granelli
and Cavitt, as well as Granelli’s conversations with “ride-along” off-duty police
detective Jon Britton (“Britton”). After entering his guilty plea, Cavitt obtained
a copy of the recording.
Upon reviewing the video, Cavitt concluded that the vehicle search was
justified neither by reasonable suspicion nor by consent. He decided to release
attorney Brown and to retain Michael Heiskell as counsel. With Heiskell’s
assistance, Cavitt filed a motion to withdraw his guilty plea and a motion to
suppress. In his motion to withdraw, Cavitt argued that although the facts of
the case justified the filing of a motion to suppress, Brown had refused to file
such a motion on the basis that Cavitt consented to the search, which, according
to Brown, vitiated any suppression issue. Cavitt’s motion to suppress included
arguments that the search was unconstitutional under the Fourth Amendment
because the detention extended beyond the valid reason for the initial stop, that
no reasonable suspicion existed to extend the detention, and that the consent
Cavitt gave to search the mini-van was not an act of free will.
The district court denied the motion to withdraw, but never ruled on the
suppression motion. Cavitt moved for reconsideration and requested a
hearing on the motion, claiming, among other things, that: (1) Brown had
recommended a guilty plea without first viewing a videotape recording of the
stop; (2) Brown refused to permit Cavitt to view the videotape until after he
entered a guilty plea; and (3) Brown had failed to advise Cavitt that he could
enter a conditional plea and/or pursue a motion to suppress without sacrificing
a reduction for acceptance of responsibility. Without holding a hearing, the
district court denied the motion for reconsideration and sentenced Cavitt to 295
months in prison.
Cavitt did not appeal.1 Instead, approximately four months after entry of
judgment, Cavitt filed a motion pursuant to 28 U.S.C. § 2255, seeking to vacate
his conviction and claiming that: (1) the search violated the Fourth Amendment;
(2) Brown rendered ineffective assistance of counsel by failing to pursue a motion
to suppress; and (3) the plea was not voluntary due to Brown’s ineffectiveness,
including specifically Brown’s failure to advise Cavitt of his right to seek a
conditional plea agreement.
Without holding an evidentiary hearing, the magistrate judge assigned to
handle the § 2255 motion issued a report and recommendation (“R&R”). The
R&R concluded that Brown did not render ineffective assistance of counsel
because Cavitt had “not shown that but for Brown’s alleged errors he would have
rejected the plea agreement and demanded a trial.” The magistrate also
determined that seeking suppression would have been a “futile effort,” as
reasonable suspicion justified the search and Cavitt consented to the search.
Accordingly, the magistrate judge reasoned, counsel’s “belief that the motion
would do more harm than good was a reasonable one.” The R&R also found that
Brown’s failure to inform Cavitt of the availability of a conditional plea did not
compromise the voluntariness of the plea because before Cavitt entered the
1
As noted above, Cavitt waived his rights to appeal in the written plea agreement.
agreement, Brown informed Cavitt of the maximum possible sentence, and he
was sentenced within the statutory sentencing range. The magistrate judge
further concluded that Cavitt failed to demonstrate harm because neither the
government nor the trial court was bound to accept a conditional plea. Finding
Cavitt’s objections to the R&R without merit, the district court adopted the R&R
and dismissed Cavitt’s § 2255 motion. Cavitt filed a timely notice of appeal and
sought a Certificate of Appealability (“COA”) from the district court, reurging his
previous arguments and asserting that the court erred by dismissing his motion
without an evidentiary hearing. The district court concluded that any claims
regarding the search and seizure should have been raised on direct appeal
pursuant to Stone v. Powell, 428 U.S. 465 (1975), and that no evidentiary
hearing was required “in light of [Cavitt’s] voluntary guilty plea and absence of
ineffective counsel in leading to that plea.” Accordingly, the court denied the
COA.
Cavitt then sought a COA from this court, and we certified the following
issues2 on appeal: (1) whether Brown’s failure to file and pursue a motion to
suppress constituted ineffective assistance of counsel, (2) whether Brown’s
failure to advise Cavitt regarding the viability of the Fourth Amendment claim
constituted ineffective assistance of counsel with respect to Cavitt’s decision to
2
Cavitt also contended in his motion for a COA that Brown misled Cavitt and the court regarding the
viability of a suppression motion, again claimed that Brown failed to inform Cavitt that he could plead guilty
conditionally without losing acceptance of responsibility points, and argued that the district court erroneously
denied the COA.
In the order granting Cavitt’s application for a COA, we concluded with respect to the conditional plea
issue that “[g]iven the law at the time of the guilty plea, counsel reasonably could have believed that a
conditional guilty plea to pursue a Fourth Amendment claim was not a sound option.” Order Granting COA,
Nov. 5, 2007 (citing United States v. Maldonado, 42 F.3d 906, 913 (5th Cir. 1995)). However, more
recent case law holds that a district court may not deny a defendant credit for acceptance of responsibility
solely because he or she moves for suppression. See United States v. Washington, 340 F.3d 222, 230 (5th Cir.
2003) (“In the absence of a conditional plea, the defendant would have to choose between trying to suppress
the evidence and receiving credit for acceptance of responsibility. A defendant should not have to make this
choice.”).
plead guilty, and (3) whether the district court abused its discretion in failing to
hold an evidentiary hearing.
II. FACTS
As noted above, Cavitt relies on a videotape recording of the vehicle stop
and the subsequent search. The narrative and dialogue that follow are drawn
directly from that recording and from uncontested facts reflected in the record.
On the rainy evening of October 28, 2002, at approximately 7:17 in the
evening, Granelli stopped Cavitt after observing him speeding in a construction
zone and failing to signal before changing lanes on U.S. Highway 75. Granelli
approached the passenger side of the mini-van rented and driven by Cavitt and
leaned into the window.
Granelli asked Cavitt for his driver’s license. Upon viewing the license
Cavitt presented, Granelli observed that the photo did not closely resemble
Cavitt: “Boy, you’ve changed a lot in this picture; lost a bunch of weight?”
Granelli proceeded to question Cavitt regarding his itinerary. Cavitt informed
the trooper that he was traveling back to his home in East St. Louis, Illinois
after visiting with his daughter in Lancaster, Texas. Granelli requested rental
documents for the mini-van, which Cavitt furnished.
Granelli then requested permission to sit in the mini-van’s passenger seat,
commenting that he wanted to “get out of the wet weathers [sic].” Once inside,
the trooper, apparently having noticed some bags inside the vehicle, asked
Cavitt if he was moving. Cavitt explained that he had recently gone shopping.
Granelli also inquired about Cavitt’s occupation, and Cavitt responded that he
was a realtor. The trooper next informed Cavitt that he would be returning to
his patrol car to issue Cavitt a warning. Granelli indicated that he would return
shortly.
As Granelli walked back to his car, the rain intensified. Inside the patrol
car, Granelli said to ride-along detective Jon Britton, “I sure would love to search
this guy.” Granelli and Britton discussed Cavitt’s itinerary and the fact that he
was driving a rental vehicle. Granelli voiced skepticism of Cavitt’s claim that
he had driven to Texas to visit his daughter and his statement that he had done
some shopping. In particular, the time and place the mini-van was
rented—October 27, 2002, at 12:21 p.m in East St. Louis, Illinois—and the time
it was due back at the facility—October 29, 2002—gave both officers pause.
Britton remarked of it, “That’s odd, isn’t it?” Granelli responded, “Yeah, that’s
real [sic] odd.” The trooper also pointed out to Britton that, “he [Cavitt] don’t
[sic] look much like that driver’s license picture.”
Granelli commented that Cavitt “didn’t look real [sic] nervous, [though] of
course he was sitting down.” The trooper then proposed a plan: “I’m going to tell
him we’re gonna have to get off the road.” He radioed Cavitt’s driver’s license
number and tag information to dispatch and mused, “I wonder if there’s some
place we can get out of the weather.” Granelli then remarked again regarding
the license photo: “He looks like a black male, but his driver’s license . . . .”
Britton, apparently still curious about Cavitt’s itinerary, asked Granelli to
repeat the details of the vehicle rental.
Granelli said again, “I think I’m going to see if he’ll follow me up to the
Texaco station.” The rain intensified, and there follows a period of silence
during which the officers apparently waited for the storm to abate. After again
noting that Cavitt had not seemed nervous, Granelli resolved: “I’m gonna just
go say—see if he’ll follow me over there, so I can get my business done without
getting everything wet. Think that will alarm him too much if I go do that?”
Once the license check came back negative and the rain died down,
Granelli exited the patrol vehicle and again approached the mini-van. He said
to Cavitt, “I’ve got a warning for you to sign but I can’t do it in this weather; can
you follow me here up the road and we’ll get out of the rain real quick?” Cavitt
agreed to follow the officers up to the next exit. Upon returning to the car,
Granelli once again commented that Cavitt seemed relaxed. Britton asked
Granelli if Cavitt was traveling with any luggage, and the trooper responded
that he couldn’t tell.
The two cars pulled over at a truck stop approximately six minutes later.
When Cavitt arrived, the trooper directed him to pull up next to the patrol car,
under an overhang.3 Both officers approached Cavitt’s vehicle. Instead of
immediately asking Cavitt to sign the warning and returning the driver’s
license, the trooper told Cavitt that he was previously unable to examine the
rental papers due to the rain and asked to see them again. The officers also had
Cavitt step outside of the mini-van.
Granelli proceeded to again question Cavitt, this time about his
daughter’s occupation, his itinerary, and where he had stayed in Lancaster. In
response, Cavitt explained to the officers that his daughter was a child and
therefore didn’t have a job, and that he had spent the previous night at the home
of his daughter’s mother. The trooper next asked Cavitt how long he had lived
in East St. Louis and whether drugs were much of a problem there. Cavitt
initially replied, “What?” but, after Granelli repeated the question, Cavitt stated
that the drug situation in East St. Louis was “pretty bad.” Granelli questioned
Cavitt about whether he had ever used drugs, and Cavitt admitted to having
used marijuana about nine years ago. The trooper then said to Cavitt, “The
reason I’m asking you these questions [is that there] seems to be a pretty big
problem with narcotics here on this highway, especially this time of year we see
a lot of it.” Granelli asked Cavitt whether anyone had ever asked him to haul
drugs. Cavitt answered “no” and denied that there were any drugs in his van.
Detective Britton spoke up and questioned Cavitt about large trash bags
3
From this point forward, the two officers and Cavitt are outside the visual scope of the dash-mounted
camera. The remainder of the factual narrative is drawn solely from the audio recording.
in the van and his lack of luggage. Cavitt asked, “Do you want to take a look at
them?” and explained that they were full of clothes. Someone can then be heard
removing bags from the van. At that point, Granelli asked for permission to
search Cavitt’s mini-van. Cavitt can faintly be heard responding, “yeah, sure.”4
A few seconds later, Cavitt attempted to flee, at which point a struggle ensued.
In his brief and at oral argument, Cavitt represented, and the Government
did not deny, that the officers did not return the driver’s license to Cavitt prior
to their search of the mini-van.
III. DISCUSSION
In the context of 28 U.S.C. § 2255, this court reviews a district court’s
factual findings for clear error and its legal conclusions de novo. See United
States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006). It reviews a district court’s
refusal to grant an evidentiary hearing on a § 2255 motion for abuse of
discretion. See id.
As noted above, Cavitt did not directly appeal his conviction. Nor did he
appeal the district court’s denial of his motion for reconsideration. The district
court “correctly concluded that Cavitt [could] not raise a Fourth Amendment
claim on collateral review.” Order Granting COA, Nov. 5, 2007 (citing United
States v. Diaz, 733 F.2d 371, 376 (5th Cir. 1984)). However, the viability of the
Fourth Amendment claim is “inextricably intertwined with Cavitt’s claim that
his counsel rendered ineffective assistance in respect to failing to pursue a
motion to suppress and in failing to advise him properly regarding the viability
of such a claim in connection with pleading guilty.” Id. Accordingly, our inquiry
into the errors claimed entails an assessment of Cavitt’s putative Fourth
Amendment claim. Revisiting Brown’s decision not to file a motion to suppress
4
Cavitt argues in his brief that “[n]o response by Cavitt can be readily heard on the audio portion of
the videotape.” Although very faint, Cavitt’s “yeah, sure” response is audible.
on Cavitt’s behalf is critical because “[e]vidence obtained by the government in
violation of a defendant’s Fourth Amendment rights may not be used to prove
the defendant’s guilt at trial.” United States v. Thomas, 12 F.3d 1350, 1366 (5th
Cir. 1994).
A. Fourth Amendment Analysis
1. Reasonable Suspicion
Pursuant to the Supreme Court’s seminal decision in Terry v. Ohio, 392
U.S. 1 (1968), we have concluded that “[t]he stopping of a vehicle and detention
of its occupants constitutes a ‘seizure’ under the Fourth Amendment.” United
States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc). Under Terry, we
employ a two-part test to determine the legality of police investigatory stops. We
“first examine whether the officer’s action was justified at its inception, and then
inquire whether the officer’s subsequent actions were reasonably related in scope
to the circumstances that justified the stop.” Id.
Whether an officer’s actions are “reasonably related in scope to the
circumstances that justified the stop” is a fact-specific question often informed
by “timing and sequence.” Id. at 510. Although we have rejected a bright-line
approach to reviewing the reasonableness of traffic-related detentions, see id.,
this court frequently concludes that a search is not reasonably related to the
circumstances justifying a traffic violation stop when the search in question
occurs after the time required for an officer to issue a citation (or to decide
against doing so) and to complete a “computer check” for outstanding warrants
and vehicle theft. In United States v. Santiago, we articulated an oft-cited rule:
During a traffic stop, an officer can request a driver’s license,
insurance papers, and vehicle registration; he or she may also run
a computer check and issue a citation. The officer may detain and
question the subjects of a traffic stop during the time a computer
check is being conducted. Furthermore, this court usually does not
scrutinize the particular questions asked during a stop so long as
they tend to relate to the purpose of the stop.
***
However, a Fourth Amendment violation occurs when the detention
extends beyond the valid reason for the stop. Once a computer
check is completed and the officer either issues a citation or
determines that no citation should be issued, the detention should
end and the driver should be free to leave. In order to continue a
detention after such a point, the officer must have a reasonable
suspicion supported by articulable facts that a crime has been or is
being committed.
310 F.3d 336, 341-42 (5th Cir. 2004) (citations omitted); see also United States
v. Jenson, 462 F.3d 399, 404 (5th Cir. 2006) (“Detention . . . may last no longer
than required to effect the purpose of the stop. If all computer checks come back
clean, then as a general matter reasonable suspicion disappears, and there is no
legitimate reason for extending the stop.” (citations omitted)). Likewise, in
United States v. Dortch, 199 F.3d 193, 200 (5th Cir. 1999), a case that predated
Santiago, we held that where the evidence plainly reflected that officers
completed a computer check before initiating a canine search, it was
unreasonable to detain the defendant pending the dog search.
As noted in Santiago, in order to prolong a detention after issuing a
citation or determining that no citation should be issued, an officer must have
a “reasonable suspicion” that a crime “has been or is being committed.”
Santiago, 310 F.3d at 342. Reasonable suspicion “exists when the detaining
officer can point to specific and articulable facts that, when taken together with
rational inferences from those facts, reasonably warrant the search and seizure.”
United States v. Estrada, 459 F.3d 627, 631 (5th Cir. 2006) (“Under Brigham,
the purpose of the initial stop ended at 12:18, when the results of the criminal
background check came back negative, unless the officers formed additional
reasonable suspicion before that time.” ). Accordingly, “[o]nce the purpose of a
valid traffic stop has been completed and an officer’s initial suspicions have been
verified or dispelled, the detention must end unless there is additional
reasonable suspicion supported by articulable facts,” id.—suspicion, that is, of
criminal activity “additional” to the suspicion that justified the initial stop.
Thus, Brown’s continuing detention of Cavitt after the negative computer check
came was unconstitutionally prolonged unless “additional reasonable suspicion
[arose] in the course of the stop and before the initial purpose of the stop ha[d]
been fulfilled.” United States v. Lopez-Moreno, 420 F.3d 420, 431 (5th Cir. 2005).
Reasonable suspicion must be based on more than the officer’s sense that
a detainee appears to have something to hide. In Santiago this court rejected
the government’s contention that an officer had reasonable suspicion to continue
a detention because the defendant took an unusually long time to pull over,
acted nervous, gave seemingly unbelievable answers to various questions, and
provided statements regarding the details of his trip that conflicted with the
answers provided by the other occupant of the vehicle, who was questioned
separately. Santiago, 310 F.3d at 342. We held that “mere ‘uneasy feelings’
and inconsistent stories between a driver and a passenger do not constitute
articulable facts that support a reasonable suspicion of drug trafficking.”
Estrada, 459 F.3d at 631 (citing Santiago, 310 F.3d at 338-39).
However, reasonable suspicion may arise when the sort of observations
and behavior described above are coupled with more concrete evidence that
suggests the commission of a specific offense. For example, in Estrada, we
concluded that reasonable suspicion was established when an officer noticed
“‘fresh marks’ and ‘scratches’ around the fuel tank eye piece latches and vehicle
frame,” which indicated the presence of an “adhesive material” near the gas
tank. Id. at 632. In that case, the court made much of the fact that the officer’s
“extensive classroom training and on-the-job experience, including an occasion
at which he found illegal narcotics concealed in a gas tank in a similar fashion,”
led him to reasonably suspect that “a false compartment or container had been
built into the fuel tank to conceal contraband[—a]dhesive material is typically
used to cover newly created compartments to prevent seepage of fuel and
contraband.” Id. Similarly, in United States v. Sanchez, 507 F.3d 877, 882 (5th
Cir. 2007), vacated on other grounds, 128 S. Ct. 2428 (2008), we held that
reasonable suspicion arose when an officer noticed prior to a search that the
wheel rims on the detainee’s truck had been painted. Id. The officer later
testified that “he knew that drug traffickers often paint their wheel rims to hide
marks stemming from alterations they make to tires and rims to conceal
contraband.” Id.
Here, Granelli’s initial stop was justified on the basis that Cavitt was
speeding and failed to signal, a point Cavitt does not dispute. See Lopez-Moreno,
420 F.3d at 430. In addition, during the course of the stop, Trooper Granelli was
permitted to examine Cavitt’s driver’s license and registration and to run a
computer check to investigate whether Cavitt had any outstanding warrants and
whether the vehicle was stolen. See Brigham, 382 F.3d at 507-08. Once the
computer check had been completed and Granelli had prepared the warning,
however, the detention could not be prolonged unless additional reasonable
suspicion, supported by articulable facts, developed during the stop. See id at
507. Cavitt claims that no additional reasonable suspicion arose and that the
officers continued to detain him because they were simply determined to search
him, with or without a valid reason, as evidenced by the trooper’s statement, “I’d
love to search this guy.”
The Government argues that a number of circumstances that existed or
occurred before the computer check came back negative could have led the
officers to suspect that Cavitt might be involved in criminal activity. First, as
recorded on the tape, Granelli claimed during the encounter to know that the
highway Cavitt was traveling was a known drug route, that drug traffic was
particularly heavy during that time of the year, and that Cavitt’s home and
destination—East St. Louis, Illinois—was reputed to be a heavy drug trafficking
area. Second, as they discussed on tape, the officers found dubious Cavitt’s
claim that he had rented a mini-van to make a quick trip from Illinois alone and
for the purpose of visiting his daughter. Third, the license photograph that
Cavitt presented to Trooper Granelli was not a convincing likeness.5 Finally, the
Government claims that the two officers’ suspicions were heightened when they
noticed a radar detector installed in the rental vehicle and several shopping bags
strewn throughout the mini-van.
However, as noted above, reasonable suspicion must be based on more
than the officer’s hunches and doubts about Cavitt’s story. See, e.g., Estrada,
459 F.3d at 631. In order for Cavitt’s continued detention to have been justified
by reasonable suspicion, the Government must establish some nexus between
a specific criminal activity and Cavitt’s questionable license and ambitious
itinerary. See Jenson, 462 F.3d at 405. In concluding that a search was
supported by reasonable suspicion in previous cases, we have relied upon
objective evidence of specific criminal activity, interpreted by an officer
experienced or educated in detecting that particular sort of activity. See
Estrada, 459 F.3d at 632; Sanchez, 507 F.3d at 882.
By way of objective record evidence in this regard, we have only Granelli’s
statements to Cavitt, made after they had pulled up at the truck stop, indicating
that the US Highway 75 is a known drug trafficking route, that drug activity is
particularly heavy on Highway 75 during late October, and that East St. Louis
is known for its drug activity.6 However, without any extrinsic evidence or
5
The Illinois driver’s license Cavitt presented, which identified him as “Cortez Cavitt,” was later
determined to be Cavitt’s brother’s. Although that fact was of course unknown during the stop, it suggests that
Granelli’s perception that the license photo did not resemble Cavitt may have been well-founded.
6
The Government states in its brief that Granelli also noticed a radar detector on the mini-van’s
windshield, along with several shopping and garbage bags strewn throughout the vehicle. However, the record
includes no sworn statement from Trooper Granelli confirming these observations and their timing. Nor are
testimony from Granelli as to his experience and education, we are unable to
evaluate the validity, basis, or intent behind his statements.
The Government correctly suggests that a comparison of Cavitt’s
appearance with the license furnished during the stop might have aided the trier
of fact in determining whether reasonable suspicion existed. However, the
Government’s response to Cavitt’s § 2255 motion did not include a copy of the
license. Neither did it contain a photograph of Cavitt. Considering the record
before us, we are unable to determine whether the search of the mini-van was
justified by additional reasonable suspicion.
2. Consent
Even when reasonable suspicion does not justify a search, however, it does
not necessarily follow that a search constitutes a Fourth Amendment violation.
Consensual encounters “do not implicate Fourth Amendment concerns,” and “a
consensual interrogation may follow the end of a valid traffic stop.” Brigham,
382 F.3d at 508.
The videotape reflects that Cavitt responded “yeah, sure” when the
officers asked if they could search his vehicle. The Government argues, and both
Cavitt’s previous counsel and district court agreed, that this statement
represented valid consent to the search of the mini-van.
We must determine whether Cavitt’s “yeah, sure” constitutes validly given
consent. In doing so, this court asks (1) whether the consent was voluntary, and
(2) whether it was an independent act of free will. See Jenson, 462 F.3d at 406
(internal citations omitted). In evaluating the voluntariness of consent, we look
to six factors:
(1) the voluntariness of the defendant’s custodial
status; (2) the presence of coercive police procedures;
(3) the extent and level of the defendant’s cooperation
the radar detector and bags visible on tape.
with the police; (4) the defendant’s awareness of his
right to refuse consent; (5) the defendant’s education
and intelligence; and (6) the defendant’s belief that no
incriminating evidence will be found.
Id. (citations omitted). To determine whether the consent was an act of free
will, we scrutinize the record for any “‘break in the causal chain’ between the
constitutional violation and the consent; that is to say, consent cannot be the
product of the illegal detention.” Id. at 407 (citation omitted).
On the record before us, it is difficult to construe Cavitt’s custodial status
as voluntary. Although Cavitt agreed to follow the officers to the truck stop, it
appears that the officers failed to issue Cavitt the promised warning and to
return the driver’s license before the two cars relocated to the truck stop.
Consent is valid when offered after a constitutional detainment expires if a
reasonable person, at the time the legitimate detainment expired, would have
felt free to leave. United States v. Sanchez-Pena, 336 F.3d 431, 442-43 (5th Cir.
2003). A reasonable person in Cavitt’s position might not have felt free to leave
until he was issued the promised warning and his driver’s license had been
returned. See United States v. Jordan, 958 F.2d 1085, 1087 (D.C. Cir. 1992)
(“[O]nce . . . identification is handed over to police and they have had a
reasonable opportunity to review it, if the identification is not returned to the
detainee [it is] difficult to imagine that any reasonable person would feel free to
leave without it.” (internal citations omitted)). Furthermore, we have previously
concluded that an officer’s retention of identification documents suggests
coercion. See United States v. Chavez-Villareal, 3 F.3d 124, 128 (5th Cir. 1993)
(noting that officer’s retention of immigrants’ alien registration cards when he
asked for “permission” to search suggested coercion).
Also of concern is the fact that Cavitt’s “yeah, sure” was uttered during a
detention precipitated by a possible misrepresentation. “Consent” induced by an
officer’s misrepresentation is ineffective. See United States v. Webster, 750 F.2d
307, 322 (5th Cir. 1984) (holding that a defendant’s agreement to ride to the
police station for coffee was not informed and could not justify a search that
occurred during his subsequent detention). The Government implies in its brief
that Granelli informed Cavitt of the plan to search the vehicle before the trip to
the truck stop. However, the videotape clearly reflects that Granelli asked
Cavitt to follow him for the purpose of signing a warning in an area shielded
from the elements: “I’ve got a warning for you to sign but I can’t do it in this
weather; can you follow me here up the road and we’ll get out of the rain real
quick?”
The record contains no information regarding Cavitt’s awareness of his
right to refuse consent, his education, or his intelligence. Nonetheless, we are
unable to conclude on the basis of the videotape alone whether Cavitt’s consent
was voluntary and valid. A reasonable person in Cavitt’s shoes might not have
felt free to leave before the officers issued him a promised warning and returned
his license. Cavitt’s “consent” to decamp to the second location, which preceded
Granelli’s request to search Cavitt, also may have been compromised by a
misrepresentation regarding the purpose of the relocation.
In summary, we are unable to conclude, based on this record, whether the
search was justified by either voluntary consent or reasonable suspicion.
Accordingly, we find that Cavitt had an appreciable chance of success on a
Fourth Amendment claim, and we now consider whether he received ineffective
assistance of counsel in this regard.
B. Establishing Ineffective Assistance of Counsel
Under the standard articulated in Strickland v. Washington, 466 U.S. 668,
687-88 (1984), to establish that Brown rendered ineffective counsel, Cavitt must
show that: (1) Brown’s performance fell below an objective standard of
reasonableness; and (2) Cavitt suffered prejudice as a result. Id.
To demonstrate deficient performance, Cavitt is required to show that in
light of all the circumstances as they appeared at the time, “counsel’s
performance fell below an objective level of reasonableness.” Strickland, 466
U.S. at 687-89 (“Judicial scrutiny of counsel’s representation must be highly
deferential. . . [with] every effort []made to eliminate the distorting effects of
hindsight.”). Additionally, the court must “indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under
the circumstances, the challenged action might be considered sound trial
strategy.” Id. at 689 (citation and internal quotation marks omitted). If a
tactical decision is “conscious and informed . . . [it] cannot be the basis for
constitutionally ineffective assistance of counsel unless it is so ill chosen that it
permeates the entire trial with obvious unfairness.” Crane v. Johnson, 178 F.3d
309, 314 (5th Cir. 1999).
Thus, in assessing Brown’s performance with respect to his decision not
to file a motion to suppress, we must determine whether the decision was
objectively reasonable. In making that determination, we also must consider
whether the decision could be construed as “sound trial strategy.” If we
conclude that the decision was strategic, conscious, and informed, then we
should ask whether it rendered the proceedings obviously unfair.
In evaluating Brown’s advice regarding Cavitt’s guilty plea, our
considerations are slightly different. This court has stated that “it is the
lawyer’s duty to ascertain if the plea is entered voluntarily and knowingly.”
Herring v. Estelle, 491 F.2d 125, 128 (5th Cir. 1974). The lawyer must
actually and substantially assist his client in deciding
whether to plead guilty. It is his job to provide the
accused an understanding of the law in relation to the
facts. The advice he gives need not be perfect, but it
must be reasonably competent. His advice should
permit the accused to make an informed and conscious
choice. In other words, if the quality of counsel’s service
falls below a certain minimum level, the client’s guilty
plea cannot be knowing and voluntary because it will
not represent an informed choice. And a lawyer who is
not familiar with the facts and law relevant to his
client’s case cannot meet that required minimal level.
Id. (citations and internal quotation marks omitted). Accordingly, as we
determine whether Brown’s performance was deficient with respect to the plea
advice, we consider whether Brown was “familiar with the [relevant] facts and
law” such that the advice he rendered permitted Cavitt to make an informed and
conscious choice to plead guilty.
Although the record includes a sworn declaration from Cavitt indicating
that his attorney informed him that he could lose acceptance of responsibility
points if he filed a motion to suppress, there is no sworn record testimony from
counsel explaining the strategy behind his decision. Cavitt also avers that
Brown advised him to plead guilty before the defense ever received a copy of the
videotape and that, once Brown received a copy of the video, he refused to permit
Cavitt to view it before he changed his plea. In light of these uncontradicted
claims, and our conclusion that Cavitt’s Fourth Amendment claim is not without
merit, it is impossible to conclude that Brown’s decision not to file a motion to
suppress was “strategic, conscious, and informed.” See Strickland, 466 U.S. at
689; Crane, 178 F.3d at 314. Nor can we assume that Brown was “familiar with
the [relevant] facts and law” in advising Cavitt to enter a guilty plea. See
Herring v. Estelle, 491 F.2d at 128.
For both claimed errors—the failure to file a motion to suppress and the
advice to enter a guilty plea—the prejudice analysis is the same. This is so
because, in general, “once a guilty plea has been entered, all nonjurisdictional
defects in the proceedings against a defendant are waived,” and the waiver
“includes all claims of ineffective assistance of counsel, except insofar as the
alleged ineffectiveness relates to the voluntariness of the giving of the guilty
plea.” Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983) (internal citations
omitted). In order “[t]o prove prejudice for an ineffective assistance of counsel
claim in the context of a guilty plea, the habeas petitioner must show that there
is a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Bond v. Dretke, 384
F.3d 166, 167-68 (5th Cir. 2004) (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985))
(internal quotation marks omitted).
The record contains a declaration by Cavitt under penalty of perjury that
he would have insisted on pleading guilty conditionally or would not have
pleaded guilty if his counsel had informed him of the viability of a suppression
motion. Indeed, after viewing the video himself, Cavitt, without delay, fired
Brown and, at his own expense, hired another attorney in the hopes of
successfully withdrawing his plea prior to sentencing. In light of Brown’s refusal
to view the video with Cavitt prior to entry of the plea, and our determination
upon viewing the video that Cavitt’s Fourth Amendment claim had an
appreciable chance of success, we conclude that the claimed ineffectiveness was
related to the voluntariness of the plea and that there is insufficient record
evidence at this juncture to establish that Cavitt’s claims of ineffective
assistance of counsel are without merit.
C. Evidentiary Hearing Requirement
The ultimate question before us is whether the district court’s failure to
hold an evidentiary hearing was an abuse of discretion. See United States v.
Edwards, 442 F.3d 258, 264 (5th Cir. 2006). Rule 8 of the Rules Governing
Section 2255 Proceedings provides that “[i]f the motion is not dismissed, the
judge must review the answer, any transcript and records of prior proceedings,
and any materials submitted . . . to determine whether an evidentiary hearing
is warranted.” Id.
As noted above, the applicable standard of review is “abuse of discretion.”
To establish abuse of discretion, a petitioner must present “independent indicia
of the likely merit of [his] allegations.” Edwards, 442 F.3d at 264. Once such
independent evidence is presented, “[a] motion brought under 28 U.S.C. § 2255
can be denied without a hearing “only if the motion, files, and records of the case
conclusively show that the prisoner is entitled to no relief.” United States v.
Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992).
The videotape evidence constitutes an independent indicium of the likely
merit of Cavitt’s claims. As noted above, our review of the videotape led us to
conclude insufficient record evidence supported the lower court’s conclusion that
Cavitt’s claims of ineffective assistance of counsel were without merit. The
record does not “conclusively show that [Cavitt] is entitled to no relief,” and we
conclude that the court below erred by failing to hold an evidentiary hearing7
prior to denying his § 2255 motion. See United States v. Bartholomew, 974 F.2d
at 41.
We do not, however, “predict or intimate the legal consequences of any
findings or holdings on the matter[ ] remanded for further hearing. The point
is that we do not know, nor does the District Court know, whether [Cavitt . . . ]
was unconstitutionally deprived of . . . effective assistance of counsel . . . . . The
hearing is the thing.” Friedman v. United States, 588 F.2d 1010, 1017 (5th Cir.
1979).
Accordingly, the judgment of the district court denying Cavitt’s § 2255
7
Several statements in the magistrate judge’s report and recommendation suggest that the court below
did not view the videotape before denying Cavitt’s motion. For example, the magistrate judge’s conclusion that
reasonable suspicion justified the prolonged detention included information the officers obtained after the
computer check had come back negative. The magistrate judge wrote that “[w]hen the officer asked if there
was a drug problem in Movant’s hometown, Movant’s demeanor changed. Based on his suspicions, the officer
asked Movant to follow him to the next exit . . . .” However, the videotape clearly reflects that the questioning
about the drug problem occurred after the move to the exit.
motion is VACATED and the motion is REMANDED to the district court for an
evidentiary hearing on the ineffective assistance of counsel claims discussed
above.