United States v. Cavitt

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.