U.S. v. Cavitt

• Citation: 550 F.3d 430
• Decision Date: 24 November 2008
• Docket Number: No. 06-41558.,06-41558.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leamon Ray CAVITT, Jr., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

550 F.3d 430

UNITED STATES of America, Plaintiff-Appellee, v. Leamon Ray CAVITT, Jr., Defendant-Appellant.

No. 06-41558.

United States Court of Appeals, Fifth Circuit.

November 24, 2008.

Maureen Clancy Smith, Asst. U.S. Atty. (argued), Sherman, TX, for Plaintiff-Appellee.

Michael P. Heiskell (argued), Johnson, Vaughn & Heiskell, Fort Worth, TX, for 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.

HICKS, 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 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 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, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), 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 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...