United States v. Mason
| Decision Date | 18 December 2014 |
| Docket Number | No. 12–8042.,12–8042. |
| Court | U.S. Court of Appeals — Fourth Circuit |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Victor Eugene MASON, Defendant–Appellant. |
ARGUED:Nathan S. Mammen, Kirkland & Ellis LLP, Washington, D.C., for Appellant. James Hunter May, Office of the United States Attorney, Columbia, SC, 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, SC, 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.
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.
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: 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 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.
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, 116 S.Ct. 1769, 135 L.Ed.2d 89 (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 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.
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 objective reasonableness and that the deficient performance was prejudicial to his defense. See Strickland v. Washington, 466 U.S. 668, 687–88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This he cannot do.
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, 104 S.Ct. 2052. 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...
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