                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-1992
                         ___________________________

                                 Bradley L. Winters

                       lllllllllllllllllllllPetitioner - Appellant

                                           v.

                             United States of America

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

                     Appeal from United States District Court
                  for the Southern District of Iowa - Des Moines
                                  ____________

                            Submitted: January 17, 2013
                               Filed: June 17, 2013
                                 ____________

Before LOKEN, MURPHY, and SHEPHERD,* Circuit Judges.
                           ____________

LOKEN, Circuit Judge.




      *
        Judge Colloton recused after the case was fully briefed and submitted without
oral argument. Judge Shepherd was selected by a random draw of the remaining
active judges and agreed to serve on the panel. The panel denies appellant Winters’s
pro se motion to expand the record on appeal regarding the recusal, a question
decided solely by Judge Colloton.
       After an interlocutory appeal and remand, a jury convicted Bradley Lee
Winters of conspiracy to distribute and possession with intent to distribute
methamphetamine. The district court sentenced him to 360 months in prison. Winters
appealed, raising numerous issues. We affirmed. United States v. Winters, 600 F.3d
963 (8th Cir.) (Winters II), cert. denied, 131 S. Ct. 255 (2010). Winters now appeals
the district court’s1 order dismissing his post-conviction motion to vacate and set
aside the conviction and sentence. See 28 U.S.C. § 2255. Appointed counsel’s brief
raises a single issue: whether the district court erred by summarily dismissing this
motion “without hearing evidence and allowing petitioner to fully litigate his
motion.” Having thoroughly reviewed the appeal under the standard of review our
prior cases applied to this issue, we affirm.

                     I. Factual and Procedural Background

       In August 2002, Iowa law enforcement officers stopped a car being driven by
Winters, with his mother as passenger. Search of the car uncovered a substantial
quantity of methamphetamine under the passenger’s seat, a large amount of cash
under the driver’s seat, and other evidence of drug activity. Subsequent warrant
searches of two Des Moines residences Winters visited that day yielded additional
evidence of drug trafficking. Winters was tried and convicted in Iowa state court of
drug and tax stamp offenses. He then testified at the separate trial of his mother that
he alone owned the drugs and drug paraphernalia found in the vehicle, that he came
to Des Moines to purchase $10,000 worth of methamphetamine for personal use, and
that his mother had no knowledge of the methamphetamine he purchased that day.
A transcript of this testimony was read into evidence at Winters’s federal trial.




      1
        The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.

                                         -2-
       In January 2005, the Supreme Court of Iowa overturned Winters’s conviction,
concluding that pre-trial delays violated his state law right to a speedy trial. State v.
Winters, 690 N.W.2d 903 (Iowa 2005). Winters was then indicted on federal drug
charges arising out of the same 2002 incident. Before trial, he moved to dismiss the
charges on double jeopardy grounds and to suppress all evidence derived from the
allegedly unlawful stop of his vehicle. The district court denied dismissal but granted
the motion to suppress, concluding the stop was not a valid traffic or Terry2 stop.
Both sides appealed. Winters filed a “Pro se Supplemental Brief of Appellee” raising
additional Fourth Amendment issues the district court had not addressed.

       Our decision first affirmed the district court’s Double Jeopardy Clause ruling
because Winters’s contention -- that his federal prosecution fell under the “sham”
exception to the dual sovereignty principle -- was rejected in a controlling prior
decision. United States v. Winters, 491 F.3d 918, 920 (8th Cir. 2007) (“Winters I”),
citing United States v. Leathers, 354 F.3d 955 (8th Cir.), cert. denied, 543 U.S. 844
(2004). Turning to the district court’s suppression ruling, we summarized the facts
regarding the stop of Winters’s vehicle in considerable detail, facts that are relevant
to portions of the issue he raises in this § 2255 appeal:

     On August 28, 2002, northern Iowa law enforcement officer Logan
     Wernet advised the Iowa Division of Narcotics Enforcement that Winters
     and his mother would drive a 1991 red Pontiac Firebird, license number
     152-LAA, from Mason City to the Des Moines area, where they would
     meet with an attorney in West Des Moines and then pick up
     methamphetamine in Des Moines. Both Winters and his mother had prior
     felony drug convictions. Agent Steven DeJoode and officer Kenneth
     O’Brien located the Firebird parked outside the attorney’s office building.
     When Winters and his mother left the building and drove away, DeJoode
     and O’Brien followed them to a residence on the east side of Des Moines.
     A vehicle check revealed that two other vehicles parked at this residence -


      2
          See Terry v. Ohio, 392 U.S. 1 (1968).

                                          -3-
     a blue Chevy Celebrity and a red Chevy pickup - were registered to
     individuals with prior drug arrests or convictions.

     Several hours later, Winters drove away in the Firebird. His mother and
     several others drove away in the Celebrity. Both vehicles were followed
     to an apartment complex in southeast Des Moines, where the red Chevy
     pickup was also parked. Winters entered one apartment building, left after
     five minutes, entered a second building, and left after about nine minutes.
     He then drove away in the Firebird while his mother drove away with
     others in the Celebrity. About one mile from a major freeway interchange,
     Winters’s mother got out of the Celebrity and into the Firebird with
     Winters. The Firebird proceeded north on I-35, followed by Iowa State
     Patrol Trooper Mark Griggs. At this time, Agent DeJoode directed
     Trooper Griggs to stop the Firebird, either for a traffic violation or for a
     Terry stop.

     Following the stop, [Trooper] Griggs observed Winters and his mother
     move as if to place something in the front seat console. Griggs approached
     Winters, noticing his dilated pupils, body tremors, and a large lump in his
     pocket. When Winters declined Griggs’s request for a pat-down, Griggs
     placed Winters in the patrol car and told him to keep his hands visible.
     When Winters failed to do so, Agent DeJoode, who had arrived on the
     scene, handcuffed Winters for security reasons. A drug detection dog was
     summoned and arrived 31 minutes after the initial stop. The dog detected
     narcotics in Winters’s vehicle and was then led around the patrol car,
     where Winters was sitting. The dog indicated (specifically identified) the
     odor of narcotics emanating from Winters. Agent DeJoode searched
     Winters, discovering a plastic bag with two grams of methamphetamine,
     other bags containing drug residue, and what appeared to be notes of drug
     activity. The officers then searched the [car], uncovering a large amount
     of cash under the driver’s seat, one-half pound of methamphetamine under
     the passenger’s seat, and other evidence of drug activity.

Winters I, 491 F.3d at 920-21. We reversed the suppression ruling, concluding that
the stop of Winters’s vehicle was a valid Terry stop because “[Agent] DeJoode acted
on ‘specific and articulable facts’ that gave him reasonable suspicion that Winters and


                                         -4-
his mother were engaged in on-going illegal drug activity and that evidence of that
activity would be found in the Firebird.” Id. at 922. We declined to consider the
issues raised by Winters pro se, leaving it to the district court on remand to determine
“whether some or all of these issues have been properly preserved and therefore
warrant further consideration, and perhaps further factual inquiry.” Id. at 923.

       On remand, Winters filed renewed motions to suppress, both pro se and by
newly appointed counsel. These motions alleged, inter alia, that, because of prior
counsel’s ineffective assistance, our conclusions in Winters I were “riddled with
factual errors.” Winters asserted that newly discovered evidence would establish that
Special Agent Feddersen lied at the suppression hearing, undermining our conclusion
that the initial stop was valid. Winters also alleged that post-stop Fourth Amendment
violations warranted suppression. The district court denied these pretrial motions
after an evidentiary hearing, including Winters’s request that a drug dog expert be
appointed, and later denied Winters’s post-trial motion for judgment of acquittal or
a new trial on the ground that the suppression motion was improvidently denied. On
direct appeal, Winters raised all these Fourth Amendment issues and further argued
the indictment should have been dismissed for violations of the Interstate Agreement
on Detainers Act (IADA). On this appeal, we denied Winters’s repeated motions for
leave to file a supplemental pro se brief. He then submitted a fifty-page “Amicus
Brief or Supplement Pro Se Brief of Appellant” raising numerous issues, including
seven pages detailing alleged “Ineffective Assistance of Pretrial and Trial Counsel.”
We denied leave to file the pro se brief and struck “the materials tendered with the
motion.” Appointed counsel then thoroughly briefed and argued the direct appeal.
We affirmed in an opinion that fully reviewed all Fourth Amendment issues Winters
had presented. Winters II, 600 F.3d at 965-70.

       Winters then filed a lengthy pro se motion for § 2255 relief and, some months
later, a more voluminous Second Amended Motion. The government moved to
dismiss or for a more definite statement, arguing, inter alia:

                                          -5-
     The pending § 2255 motion, which [Winters] apparently will not permit
     counsel to alter, is not in a form which is readily susceptible to a
     responsive pleading. The original § 2255 motion contains a host of
     claims presented in a redundant, and often vague and conclusory, manner.
     [Winters] appears to be trying to retry [] every aspect of the criminal case,
     including the believability of testimony and persuasiveness of arguments,
     both those presented and those not presented in the criminal proceedings.

The district court granted this motion and ordered Winters, through appointed
counsel, to “file a clarifying § 2255 motion which will be [a] short, succinct, and
plain recitation of his § 2255 claims.” Counsel then filed Petitioner’s Amended and
Substituted § 2255 Motion asserting nearly fifty separately enumerated claims, the
only claims we consider properly raised in the district court. The court denied the
Amended and Substituted Motion without a hearing, and this appeal followed.

       On appeal, Winters has again filed multiple motions for leave to file voluminous
pro se supplemental briefs, arguments, and additional fact materials. We deny these
motions, as we did in considering his direct appeal. See United States v. Martin, 59
F.3d 767, 768 n.2 (8th Cir. 1995). Unlike the appointed attorneys he criticizes,
Winters does not understand the limitations on § 2255 post-conviction relief, the
standards for deciding claims of ineffective assistance of counsel, and the principle
that issues of law and fact, once finally decided, may not be revisited.

                                    II. The Merits

      On appeal, appointed counsel notes that the Amended and Substituted Motion
raised “nearly 50 claims of ineffective counsel” and argues that the district court erred
in denying the motion without holding an evidentiary hearing to consider the “187
pages of exhibits” Winters’s attached to his pro se Second Amended Motion. A
§ 2255 motion “may be dismissed without hearing if (1) movant’s allegations,
accepted as true, would not entitle him to relief, or (2) [the] allegations cannot be


                                          -6-
accepted as true because they are contradicted by the record, are inherently incredible,
or are conclusions rather than statements of fact.” Koskela v. United States, 235 F.3d
1148, 1149 (8th Cir. 2001) (citation omitted). The district court’s decision to deny
an evidentiary hearing is reviewed for abuse of discretion. Tinajero-Ortiz v. United
States, 635 F.3d 1100, 1105 (8th Cir.), cert. denied, 132 S. Ct. 315 (2011). “If we can
determine from the motion and the supporting record in the case that [Winters] is not
entitled to § 2255 relief, then no hearing was, or is now, required.” Saunders v.
United States, 236 F.3d 950, 952 (8th Cir.), cert. denied, 533 U.S. 917 (2001).

      Counsel’s brief on appeal summarizes 36 claims of ineffective assistance of
pretrial, trial, and appellate counsel that were asserted in the Amended and
Substituted Motion and therefor preserved for appeal.3 We separately consider each
claim, mindful that “the numerosity of the alleged deficiencies does not demonstrate
by itself the necessity for habeas relief.” United States v. Robinson, 301 F.3d 923,
925 n.3 (8th Cir. 2002), cert. denied, 537 U.S. 1238 (2003); see Hall v. Luebbers, 296
F.3d 685, 692 (8th Cir. 2002), cert. denied, 538 U.S. 951 (2003).

      A. Claims Relating to the Initial Traffic Stop. Winters seeks to relitigate the
validity of the initial traffic stop in this post-conviction proceeding by asserting
numerous ways in which pretrial, trial, and appellate counsel ineffectively pursued
this fact-intensive issue. (1) Winters alleges that counsel was ineffective for not
identifying and calling as a witness at the suppression hearing Lisa Lybarger, the
informant who told Logan Wernet that Winters and his mother would be traveling to
Des Moines in Winters’s Firebird to purchase methamphetamine. Winters submitted
a hand-written October 2009 affidavit in which Lybarger averred that she did not tell
Wernet the color or license plate number of the vehicle, and did not give him “a

      3
       Counsel’s brief acknowledges he conceded in the district court that certain
§ 2255 claims raised by Winters pro se and asserted in the Amended and Substituted
Motion “had been previously ruled on [or] were simply not actionable even if true.”
Appellant’s Brief at 30. These issues were therefore abandoned on appeal.

                                          -7-
specific lawyers name” or address they would visit, contrary to Special Agent
Feddersen’s suppression hearing testimony. (2) Winters further alleges that his
attorneys were ineffective for failing to impeach the investigating officers’ testimony
at the suppression hearing and at trial with several discrepancies that could be
extracted from their reports, prior state court suppression testimony, and a search
warrant affidavit concerning where Winters’s vehicle was first located in Des Moines,
whether the informant reported that Winters and his mother would visit a lawyer, and
how the informant’s tip was corroborated.

       The short answer to these contentions, individually and collectively, is that even
if all of the alleged discrepancies were true, they would not alter our conclusion in
Winters I that the officers had reasonable suspicion justifying a Terry stop of the
Firebird as it drove away from Des Moines that day. See Winters II, 600 F.3d at 965-
66. Lybarger’s affidavit confirmed that she did report the most significant facts
concerning Winters’s trip to Des Moines. Moreover, Winters made no showing that
Lybarger was available and would have testified for Winters at the suppression
hearing, and that effective defense counsel would have called this seemingly hostile
witness. These claims were properly denied without a hearing because, if accepted
as true, they did not entitle Winters to relief. For the same reason, the claim that
counsel was ineffective for failing to challenge on direct appeal the “blocking”
maneuver used in effecting the initial stop was properly denied as without merit.

       B. Claims Relating to Post-Stop Fourth Amendment Issues. Winters revisits
these fully litigated suppression issues with a litany of ineffective assistance claims.
First, he argues counsel was ineffective in failing to obtain an expert to determine
whether the audio portion of the video tape offered at the suppression hearing was
altered to falsely portray Winters as noncompliant so that he could be handcuffed.
This speculative § 2255 claim is without merit for many reasons, the most obvious
being that Winters failed to identify an expert and provide evidence of the testimony



                                          -8-
that expert would have given at the suppression hearing or at trial. See Rodela-
Aguilar v. United States, 596 F.3d 457, 462 (8th Cir. 2010).

      Second, Winters argues his attorneys were ineffective in failing to retain a drug
dog expert prior to the initial suppression hearing to offer testimony that the dog’s
action was not an alert, and that any alert was unreliable due to the dog’s poor health
and prior training. This claim is strictly one of timing. After trial, Winters’s attorney
retained such an expert and argued that the expert’s findings undermined the showing
of probable cause to search Winters’s person and his vehicle and therefore warranted
a new trial. On direct appeal, we thoroughly considered and rejected this and other
issues relating to the drug dog. “Even if a defense expert cast doubt on the reliability
of Bobby’s alerts,” we concluded, “there was little if any likelihood this would
undermine the district court’s probable cause rulings.” Winters II, 600 F.3d at 969.
For the same reason, Winters cannot show prejudice even if counsel should have
obtained the expert sooner. See Strickland v. Washington, 466 U.S. 668, 694 (1984)
(prejudice means “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different”).

     Winters next complains that counsel failed to raise numerous post-stop Fourth
Amendment issues during the government’s interlocutory appeal of the initial
suppression ruling: handcuffing Winters without probable cause; unreasonably
prolonging detention until a drug dog arrived; using the drug dog to search his person
without probable cause;4 searching his vehicle based upon a defective dog alert; and


      4
        The evidence relating to the drug dog’s alert in the extensive trial court record,
including the trial testimony of the dog’s handler, consistently reflected that drug dog
“Bobby” alerted as the dog circled the exterior of the patrol car in which Winters was
placed after he was detained. See Winters I, 491 F.3d at 921. Thus, to the extent this
ambiguous claim can be read as raising the distinct issue that Bobby was allowed to
directly sniff Winters’s person without a warrant, no hearing was required because
that allegation is contradicted by the record.

                                           -9-
searching his pockets and removing items known not to be weapons during a post-
arrest frisk. Winters raised these issues in his pro se supplemental brief, we declined
to consider them because they had not been addressed by the district court, and we
invited their consideration on remand, which in fact occurred. See Winters I, 491
F.3d at 923; Winters II, 600 F.3d at 966-70. Thus, an evidentiary hearing was not
needed on these § 2255 claims because no Strickland prejudice can be shown.

      C. Other Pretrial Claims. (1) Winters alleged that counsel was ineffective for
failing to move to dismiss the indictment because the government knowingly
presented to the grand jury testimony by a witness the government had previously
considered a liar. The basis for this allegation in Winters’s pro se supporting
materials confirms that the allegation is inherently incredible, as well as conclusory.
Thus, even if such conduct might constitute prosecutorial misconduct warranting
relief in an extreme case, the claim was properly denied without a hearing.

      (2) Counsel’s brief on appeal repeats the claim that counsel was ineffective for
failing to move to dismiss the indictment because the police lied to obtain an
improper waiver of the Attorney General’s “Petite Policy.”5 This claim was properly
abandoned in the district court. See Leathers, 354 F.3d at 962 (the Petite Policy “does
not confer any substantive rights and its application cannot form the basis for a claim
of improper prosecution”).

      (3) Winters claims that counsel was ineffective for failing to move to dismiss
the indictment on double jeopardy, speedy trial, and misconduct grounds, namely,
that the government prosecuted this federal case four years after it was dismissed in
state court for speedy trial violations. These claims are without merit because we

      5
        “The Petite Policy, an internal policy of the Department of Justice, states that
a federal prosecution should not be based on substantially the same acts that were the
basis for a prior state prosecution unless there is a compelling federal interest.”
United States v. Larsen, 427 F.3d 1091, 1094 (8th Cir. 2005).

                                         -10-
rejected the underlying theories in deciding the prior two appeals. See Winters I, 491
F.3d at 920, noting Leathers controlled the double jeopardy and vindictive
prosecution claims; Winters II, 600 F.3d at 970-71, rejecting speedy trial and IADA
claims.

      D. Claims Relating to Trial. Winters alleges that his trial attorney’s
performance was constitutionally deficient because he pursued a “buyer/seller”
defense rather than presenting a general denial, a defense that the drugs were planted
in the car without Winters’s knowledge, and the defense that he withdrew from the
conspiracy by backing out of a second attempted methamphetamine purchase. These
claims were properly denied without a hearing. Because of the problems inherent in
evaluating counsel’s conduct in hindsight, courts “must indulge a strong presumption
that counsel’s conduct falls within the range of reasonable professional assistance.”
Strickland, 466 U.S. at 689. As the district court correctly noted, the evidence against
Winters was strong. In such a case, determining what defenses to pursue, particularly
when the choices may be mutually inconsistent or even in conflict, is the type of trial
strategy decision that is “virtually unchallengeable.” Id. at 690; Loefer v. United
States, 604 F.3d 1028, 1030 (8th Cir. 2010). Winters produced no credible evidence
supporting the implausible theory that someone else planted the drugs found in a car
he was seen driving extensively that day. There is no chance that presenting only a
general denial defense would have altered the jury’s verdict, and a claim of belated
withdrawal would not have been a defense to the conspiracy charge. On these claims,
Winters established neither deficient performance nor prejudice.

      Winters also alleges that his trial attorney’s performance was deficient for
failing to object to jury instruction 18, which permitted the jury to infer intent to
distribute from possession of a large quantity of methamphetamine. The instruction
was a correct statement of the law. See United States v. Thompson, 686 F.3d 575,
579-80 (8th Cir.), cert. denied, 133 S. Ct. 771 (2012).



                                         -11-
      Finally, Winters claims that trial counsel’s assistance was ineffective as a result
of various evidentiary failures: not impeaching three government witnesses with
prior state court testimony; not eliciting testimony from a cooperating government
witness that her daughter was at the crime scene and had an opportunity to plant the
cash and drugs in Winters’s car; not presenting relevant evidence of the vehicle’s
configuration; not objecting to introduction of Winters’s testimony at his mother’s
trial as the fruit of unlawful coercion; and not offering Iowa prison records
impeaching a portion of a government witness’s testimony. On their face, these
allegations and Winters’s pro se supporting materials fail to clear the high hurdle of
demonstrating deficient trial performance. In any event, we agree with the district
court that an evidentiary hearing was not required because Winters “fail[ed] to allege
any deficiency on the part of counsel that raises a reasonable probability that the
result in this case would have been different had counsel taken additional steps.”

     E. Claims of Ineffective Assistance of Appellate Counsel. Winters alleges that
his appellate attorneys “failed to raise meritorious issues on appeal” relating to
multiple Fourth Amendment suppression issues, claims relating to government
misconduct in securing the indictment, and whether the Petite Policy was violated.
We interpret these claims as pertaining to both the interlocutory and the direct
appeals. Different appellate counsel vigorously represented Winters on both appeals.
Rigorous Strickland standards apply to both efforts:

     When appellate counsel competently asserts some claims on a defendant’s
     behalf, it is difficult to sustain a[n] ineffective assistance claim based on
     allegations that counsel was deficient for failing to assert some other
     claims. Because one of appellate counsel’s important duties is to focus on
     those arguments that are most likely to succeed, counsel will not be held
     to be ineffective for failure to raise every conceivable issue.

Link v. Luebbers, 469 F.3d 1197, 1205 (8th Cir. 2006) (citations omitted), cert.
denied, 552 U.S. 993 (2007). Here, as in Link, Winters “does not compare the


                                          -12-
strength of [the claims not asserted] relative to those claims that were asserted on
appeal.” Id. Moreover, these Fourth Amendment and misconduct issues were all
raised and rejected on the merits in one or both of the prior appeals. Winters simply
clings to a mistaken belief that they could have been won with better lawyering. We
conclude to the contrary. Therefore, the district court properly dismissed these claims
without an evidentiary hearing.

      For the foregoing reasons, we conclude the district court did not abuse its
discretion in dismissing Winters’s § 2255 motion without an evidentiary hearing.
Accordingly, the Order of the district court dated April 4, 2012, is affirmed.
                       ______________________________




                                         -13-
