                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 15a0787n.06
                                                                                        FILED
                                           No. 14-5661                            Dec 03, 2015
                                                                              DEBORAH S. HUNT, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

KEVIN WILLIAMS,                                          )
                                                         )
       Petitioner-Appellant,                             )
                                                         )      ON APPEAL FROM THE
v.                                                       )      UNITED STATES DISTRICT
                                                         )      COURT FOR THE WESTERN
UNITED STATES OF AMERICA,                                )      DISTRICT OF TENNESSEE
                                                         )
       Respondent-Appellee.                              )
                                                         )


BEFORE: DAUGHTREY, ROGERS, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. Kevin Williams appeals the district court’s

denial of his § 2255 motion seeking to vacate his 262-month sentence on the ground that trial

counsel was ineffective in failing to file a motion to suppress evidence seized in violation of his

Fourth Amendment rights. We conclude Williams has failed to show prejudice and AFFIRM.

                                                 I.

       Williams was charged in a two-count indictment with distributing and possessing with

intent to distribute at least 500 grams of cocaine and at least 50 grams of cocaine base (crack).

The factual basis for these offenses was provided in Williams’s presentence report (PSR):

       16. On July 13, 2007, members of the MPD’s Organized Crime Unit (OCU) were
       checking a drug complaint in the area of 1568 Oakwood. As detectives drove
       onto Oakwood, Kevin Williams was observed closing the door of a 2003 Ford F-
       150 pickup truck. Williams, standing in the middle of the street, then engaged in
       a hand-to-hand transaction with a[n] unknown individual. The detectives exited
       their unmarked police vehicles, identified themselves as police officers and
       ordered Williams and the other individual to come over to them. Williams
       immediately turned and ran towards 1568 Oakwood and two of the detectives
No. 14-5661
Williams v. United States

       chased him. Williams ran inside 1568 Oakwood and attempted to close the door
       on the chasing detectives but was unsuccessful. He was taken into custody
       without further incident.

       17. Williams was searched incidental to arrest and found to be in possession of
       the ignition keys belonging to the Ford F-150 pick-up truck, as well as $3,259.00
       in cash. The detectives looked into Williams’ pick-up and observed sitting in
       plain view, in the console cup-holder, a clear plastic baggie containing a while
       [sic] powdery substance later determined to be cocaine hydrochloride (powder
       cocaine). As the officers retrieved the first baggie of cocaine, they looked in the
       console and found $790.00 in currency and a second baggie of cocaine. Further
       search of the truck revealed two Codeine pills (Tylenol III), two Hydrocodone
       pills and a black digital scale.

       18. A search warrant was retrieved and executed at the defendant’s home, 9236
       Morning Glow, No. 203. An additional amount of cocaine hydrochloride, as well
       as cocaine base, 20 Ecstasy pills, and more currency was recovered. A total of
       $16,099.00 in currency was seized from the defendant. A DEA laboratory
       analysis of the seized drugs revealed the following net weights:

       Cocaine Hydrochloride           2,604 grams (2.6 kilograms)

       Cocaine Base                    75 grams

       Oxycodone (Lortab)              .91 grams

       Codeine (Tylenol III)           .85 grams

       Ecstasy                         No controlled substance found

(R. 13-1: PSR, PID 45.)

       Finding Williams indigent, the court appointed counsel to represent him.               Counsel

discussed with Williams the possibility of filing a motion to suppress but did not do so. Instead,

pursuant to a plea agreement, Williams pled guilty to the charged offenses. At the change-of-

plea hearing, Williams affirmed the offense conduct outlined in the PSR,1 stated that he was

satisfied with counsel’s representation, and pled guilty to the charged offenses.




1
 The Government did not indicate at the change of plea hearing that police observed a bag of cocaine in
plain view, thus Williams did not affirm that specific allegation at the change-of-plea hearing.
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No. 14-5661
Williams v. United States

       The district court sentenced Williams to 262 months’ imprisonment followed by five

years of supervised release. Because Williams was a career offender, his advisory guidelines

range was 262 to 327 months. Although the Government declined to file a U.S.S.G. § 5K1.1

motion for substantial assistance, the district court stated that it would have sentenced Williams

near the top of the guidelines range if not for the efforts Williams made to assist the government.

On appeal, this court affirmed Williams’s sentence. United States v. Williams, No. 09-5016 (6th

Cir. Mar. 8, 2010).

       Williams, through new counsel, then filed a § 2255 motion, asserting that trial counsel

was ineffective for failing to file a motion to suppress. The district court released trial counsel

from the attorney-client privilege, and the Government filed its response together with an

affidavit from trial counsel stating that counsel had informed Williams of his right to file a

motion to suppress, which could result in all the evidence being suppressed; counsel explained

that even if the motion to suppress were unsuccessful, he could still attempt to negotiate a plea

arrangement with the government, or Williams could go to trial; Williams instructed him not to

file a motion to suppress and instead directed him to focus on a § 5K1.1 motion; and, at a

subsequent meeting, counsel reiterated that Williams could file a motion to suppress and still

cooperate with the Government, but Williams wanted to focus solely on a proffer and potential

§ 5K1.1 motion.

       In response, Williams filed his own affidavit, stating that he never instructed counsel not

to file a motion to suppress. Rather, Williams stated he insisted on filing a motion to suppress

throughout his case but counsel told him that the district court would believe the police, and

therefore the only way Williams could help himself was to cooperate. Moreover, Williams

stated that 1568 Oakwood was and had always been his permanent address, and that the police


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No. 14-5661
Williams v. United States

officers lied when they stated they saw a bag of cocaine in plain view in the truck cup holder.

According to Williams, the police had removed the bag from the console and placed it in the cup

holder.

          The district court ordered an evidentiary hearing to resolve the factual dispute between

Williams’s and counsel’s versions of events, and also ordered the parties to “be prepared to

address whether Defendant had a potentially meritorious suppression motion.” (R. 19: Order,

PID 91–92.) After the evidentiary hearing, the district court issued a detailed order denying

Williams’s amended motion to vacate sentence. The district court made the following factual

findings relevant to this appeal, which are supported by the record:

          4. On January 15, 2008, [counsel] visited Williams at the West Tennessee
          Detention Facility in Mason, Tennessee, where he was being held prior to trial.
          At that meeting, Williams told [counsel] that, on July 13, 2007, he was getting out
          of his truck, saw somebody running at him who he assumed was a police officer,
          and ran into his mother’s house and attempted to close the door. Before that
          meeting, [counsel] had reviewed the police report, which described a hand-to-
          hand transaction, and he was aware that the Government would dispute Williams’
          version of events. During that first meeting, [counsel] explained to Williams how
          the case would proceed and also discussed the possibility of filing a motion to
          suppress. In response to a question from Williams, [counsel] advised Williams
          that, if the motion to suppress were successful, all fruits of the unlawful arrest
          would be suppressed. [Counsel] also advised Williams that, if the motion to
          suppress were not granted, they could attempt to negotiate a plea agreement with
          the Government or could go to trial.

          ....

          6. [Counsel] had a second conference with Williams at Mason on March 20,
          2008. At that conference, [counsel] told Williams that it was time to file a motion
          to suppress if he wanted to do so. The parties also discussed the possibility of
          seeking a § 5K1.1 motion from the Government. Williams instructed [counsel] to
          contact the prosecutor to discuss the possibility of a proffer session. Williams
          also told [counsel] that he did not want to pursue a suppression motion because it
          might make the Government “mad.”

          ....



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No. 14-5661
Williams v. United States

       10. [Counsel] traveled to Mason to meet with Williams on April 1, 2008, before
       the proffer session that had been scheduled for April 4, 2008. During that
       meeting, [counsel] emphasized to Williams the importance of being completely
       honest with the Government during the proffer session. [Counsel] and Williams
       reviewed the discovery again. Williams revised his version of what had happened
       on July 13, 2007, admitting that there had been a hand-to-hand transaction and
       that he had been in possession of drugs and “a big wad of money” when he saw
       the police officer approaching him. By that time, the decision had already been
       made not to file a motion to suppress. Williams did not ask [counsel] to file a
       motion to suppress at any time after April 4, 2008.

       11. The Court adopts the summary of the facts contained in paragraphs 14-18 of
       the PSR, which is substantially similar to the statement in the arrest ticket and the
       description of the facts provided by the Government at the change of plea hearing.
       At no time after Williams began cooperating with the Government did he retract
       his admission that he had been engaged in a hand-to-hand transaction. Although
       Williams now claims that the police removed the drugs from the console and put
       them in the cup holder of his truck, Williams never told [counsel] that the bag of
       drugs was not in plain view in the cup holder. The Court finds [counsel]’s
       testimony to be more credible than that of Williams. At the change of plea
       hearing, [counsel] accepted the Government’s statement of the facts after
       consulting with Williams. [Counsel] also filed a response to the PSR [where] he
       stated that he did not dispute the summary of the offense conduct. That response
       was prepared after consulting with Williams. The Court finds that [counsel] had
       no reason to lie about what Williams had told him and that, if Williams had told
       him that the factual summaries provided by the Government at the change of plea
       hearing or in the PSR were inaccurate, he would have objected.

       ....

       15. The Court makes no finding on why Williams instructed [counsel] not to file
       a suppression motion. It is possible that he believed that a suppression motion
       might make the Government “mad” and less likely to file a § 5K1.1, as [counsel]
       testified. Notably, however, at the evidentiary hearing Williams did not testify to
       that motivation. Williams knew, while he and [counsel] were discussing the
       motion, that the version of events that he had provided to [counsel] was
       inaccurate. It is possible that Williams avoided the issue of a suppression motion
       because he was afraid that his inaccurate statements to [counsel] would become
       known to the Government and would jeopardize his chances of obtaining a
       § 5K1.1 motion.

       ....

       17. Although the Government ultimately decided against filing a § 5K1.1 motion,
       Williams nonetheless received a substantial reduction in his sentence because of
       his cooperation. As the Court stated at the sentencing hearing, the appropriate

                                               -5-
No. 14-5661
Williams v. United States

        sentence in this case ordinarily would be at the top of the guideline range of three
        hundred twenty-seven (327) months. Because of his cooperation, Williams was
        sentenced to two hundred sixty-two (262) months, which is at the bottom of the
        guideline range. Thus, as a result of his cooperation, the sentence Williams
        received was sixty-five (65) months, or five years and five months, lower than it
        otherwise would have been.

(R. 32: Order, PID 264–72 (citations and footnotes omitted).)

        Based on these factual findings, the district court concluded that Williams’s motion to

suppress would have failed. The district court also rejected Williams’s argument that counsel

should have tried harder to persuade Williams to file a suppression motion and, given Williams’s

intellectual limitations, that counsel had a professional responsibility to advise him to file a

motion to suppress. Accordingly, the district court held that Williams’s ineffective assistance

claim was without merit and denied his § 2255 motion.

        The district court granted a certificate of appealability. This appeal followed.

                                                II.

        Williams contends that counsel was constitutionally ineffective in not filing a motion to

suppress on the ground that police lacked probable cause to arrest Williams. He does not

contend that counsel was ineffective for failing to argue that the searches of his car incident to

his arrest and his apartment pursuant to a warrant were unconstitutional. Nor does Williams

appear to challenge any of the district court’s factual findings.2 Thus, we focus only on probable

cause for the arrest.

        On appeal of a denial of a § 2255 petition, we review legal issues de novo and factual

findings for clear error.3 Peveler v. United States, 269 F.3d 693, 698 (6th Cir. 2001) (quoting

Hilliard v. United States, 157 F.3d 444, 447 (6th Cir. 1998)). “A claim of ineffective assistance

2
  Williams notes that he “categorically denied [counsel’s] version of events,” but he does not argue that
the district court erred in accepting counsel’s version of events. Appellant Br. 16.
3
  Based on our review of the record, we accept those findings for purposes of this appeal.
                                                  -6-
No. 14-5661
Williams v. United States

of counsel presents a mixed question of law and fact that we likewise review de novo.” Pough v.

United States, 442 F.3d 959, 964 (6th Cir. 2006).

       Pursuant to 28 U.S.C. § 2255(a), “[a] prisoner in custody under sentence of a [federal]

court . . . claiming the right to be released . . . may move the court which imposed the sentence to

vacate, set aside or correct the sentence.” A prisoner seeking relief under § 2255 “must allege as

a basis for relief: ‘(1) an error of constitutional magnitude; (2) a sentence imposed outside the

statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire

proceeding invalid.’” Mallett v. United States, 334 F.3d 491, 496–97 (6th Cir. 2003) (quoting

Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001)). Because Williams alleges a

violation of his constitutional right to effective assistance of counsel, his claim fits squarely

within the first of the three categories above. Pough, 442 F.3d at 964. Williams must prove this

allegation by a preponderance of the evidence. Id.

       To prevail on his ineffective assistance of counsel claim, Williams must establish that

counsel’s performance was deficient and that he suffered prejudice as a result. Strickland v.

Washington, 466 U.S. 668, 687 (1984). To establish deficient performance, Williams “must

show that ‘counsel’s representation fell below an objective standard of reasonableness.’”

Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 688, 689). To

demonstrate prejudice, Williams “must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694. In the context of guilty pleas, a defendant “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.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Because counsel’s


                                                -7-
No. 14-5661
Williams v. United States

failure to raise a Fourth Amendment claim is being challenged, “the defendant must . . . prove

that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the

[outcome] would have been different absent the excludable evidence.” Kimmelman v. Morrison,

477 U.S. 365, 375 (1986).

        Because Williams was not prejudiced by counsel’s failure to seek suppression based on a

lack of probable cause to arrest, we need not address whether counsel was deficient in not doing

more to apprise Williams of the advisability and potential for success of such a motion.

        Williams argues that the undisputed facts contained in his PSR establish a lack of

probable cause to arrest.4 The Fourth Amendment provides that “[t]he right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,

shall not be violated.” U.S. Const. amend. IV. The Fourth Amendment generally prohibits

officers from making brief investigatory stops absent reasonable suspicion, United States v.

Arvizu, 534 U.S. 266, 273 (2002), and requires “probable cause to believe that the suspect has

committed or is committing an offense” before officers may effectuate arrest without a warrant,

Michigan v. DeFillippo, 443 U.S. 31, 36 (1979). An officer has reasonable suspicion to conduct

an investigatory stop if, based on the totality of the circumstances, “the detaining officer has a

‘particularized and objective basis’ for suspecting legal wrongdoing.” Arvizu, 534 U.S. at 273

(quoting United States v. Cortez, 449 U.S. 411, 417 (1981)). Probable cause requires that, at the

moment of arrest, “the facts and circumstances within [the officers’] knowledge and of which

they had reasonably trustworthy information were sufficient to warrant a prudent man in



4
  The district court ordered an evidentiary hearing only to resolve the factual dispute between counsel’s
and Williams’s versions of events. The district court did not hear evidence from the arresting officers
about Williams’s arrest. Williams does not challenge the scope of the hearing or request remand for
another evidentiary hearing. Instead, he argues that the undisputed facts contained in the PSR establish a
lack of probable cause.
                                                   -8-
No. 14-5661
Williams v. United States

believing that the petitioner had committed or was committing an offense.” Beck v. Ohio,

379 U.S. 89, 91 (1964).

       The facts relevant to whether officers had probable cause to arrest Williams are contained

in Williams’s PSR, which were uncontested at Williams’s sentencing and are uncontested on

appeal. The district court also found that Williams admitted these facts to counsel prior to the

first proffer with the Government. Briefly stated, those facts establish that officers received a

complaint about drug activity in the area of 1568 Oakwood, which is Williams’s mother’s

residence. As officers arrived, they observed Williams exit a vehicle and engage in a hand-to-

hand transaction with another individual. Upon the officers identifying themselves and ordering

Williams and the other individual to come over to the officers, Williams fled to 1568 Oakwood

and attempted to close the door on the officers. He was unsuccessful, was taken into custody,

and his car was searched incident to arrest. Williams argues that these facts are insufficient to

provide the officers with probable cause to arrest him.

       Williams’s presence in the area where the officers had been informed of drug activity

coupled with Williams’s observed hand-to-hand transaction gave the officers a particularized and

objective basis to suspect wrongdoing. See Arvizu, 534 U.S. at 273. Although, as the district

court noted, the complaint about drug activity should not be given undue weight because nothing

in the record indicates that the caller identified the persons involved in drug activity, see United

States v. Johnson, 620 F.3d 685, 693–94 (6th Cir. 2010), the subject matter of the complaint that

brought the officers to the area need not be ignored, see Illinois v. Wardlow, 528 U.S. 119, 124,

(2000) (“[O]fficers are not required to ignore the relevant characteristics of a location in

determining whether the circumstances are sufficiently suspicious to warrant further

investigation.”). That complaint along with the officers’ observation of Williams engaging in a


                                                -9-
No. 14-5661
Williams v. United States

hand-to-hand transaction consistent with a drug transaction5 provided the officers more than an

“inchoate and unparticularized suspicion or ‘hunch.’” Terry v. Ohio, 392 U.S. 1, 27 (1968).

This court has previously explained that hand-to-hand transactions consistent with drug

transactions are “highly probative” in evaluating reasonable suspicion. United States v. Jones,

673 F.3d 497, 502 (6th Cir. 2012).            Following Jones, in United States v. Alexander, an

unpublished opinion we find persuasive for its reasoning, this court found there was reasonable

suspicion of drug activity under very similar circumstances: the officers were responding to a

complaint about drug activity and observed what appeared to be hand-to-hand drug transactions.

528 F. App’x 515, 519 (6th Cir. 2013).6 For the same reasons as in Alexander, the officers here

had reasonable suspicion of illegal activity prior to Williams’s fleeing.

        In assessing probable cause, this court has held that if officers have reasonable suspicion

of criminal activity, and the suspect flees when the officers attempt to stop him, the officers’

reasonable suspicion ripens into probable cause. United States v. Dotson, 49 F.3d 227, 230, 231

(6th Cir. 1995). Accordingly, because the officers had reasonable suspicion of criminal activity

after observing Williams engage in a hand-to-hand transaction, they had probable cause to arrest

Williams once he fled. After Williams was taken into custody, police searched his car incident

to his arrest and found further evidence of crime.7


5
  In his Reply Brief, Williams notes that the district court’s order, citing the PSR and change of plea
hearing transcript, states only that Williams engaged in a “hand-to-hand transaction” rather than a hand-
to-hand drug transaction. Reply Br. 1. In context, however, it is reasonable to read that language as
indicating a drug transaction. Moreover, in a separate part of the order, the district court found that
Williams admitted to his attorney that “there had been a hand-to-hand transaction and that he had been in
possession of drugs and ‘a big wad of money’ when he saw the police officer approaching him,”
indicating that Williams’s hand-to-hand transaction observed by the officers was a drug transaction.
(R. 32: Order, PID 268.)
6
  The only other fact relied on by the court was that the defendant was parked at a gas pump but did not
purchase gas. Alexander, 528 F. App’x at 519.
7
  Williams does not challenge the district court’s finding that exigent circumstances justified the officers’
entry into his mother’s house to arrest him, other than to reiterate that the officers did not have probable
                                                    -10-
No. 14-5661
Williams v. United States

        Williams argues that the officers did not have probable cause here by pointing to cases

with similar facts in which we held that officers had reasonable suspicion of criminal activity.

See, e.g., Jones, 673 F.3d at 502–03 (finding reasonable suspicion when the defendant was

present in a high-crime area known for drug activity, the officer observed an apparent hand-to-

hand transaction, the defendant ran when the officer exited his vehicle, and the defendant threw

several items to the ground as he was fleeing). None of Williams’s cited cases, however,

precludes a finding of probable cause under these circumstances, as those cases do not even

address probable cause.

        Accordingly, Williams has not shown by a preponderance of the evidence that there is a

reasonable likelihood that, absent counsel’s errors, he would not have pleaded guilty and instead

would have insisted on going to trial.

                                                   III.

        For these reasons, we AFFIRM.




cause. See Smith v. Stoneburner, 716 F.3d 926, 931 (6th Cir. 2013) (“Under the hot pursuit exception, an
officer may chase a suspect into a private home when the criminal has fled from a public place.”).
Further, according to the PSR, which the court accepted as accurate, the drugs were found in the car in
plain view, potentially making the arrest irrelevant. See United States v. Galaviz, 645 F.3d 347, 355 (6th
Cir. 2011) (“Under the plain-view doctrine, ‘if police are lawfully in a position from which they view an
object, if its incriminating character is immediately apparent, and if the officers have a lawful right of
access to the object, they may seize it without a warrant.’” (quoting United States v. Herndon, 501 F.3d
683, 692 (6th Cir. 2007))); id. at 357 (“The automobile exception allows a warrantless search of an
automobile if officers have probable cause to believe the vehicle contains evidence of a crime.”).
                                                  -11-
