                                             NOT PRECEDENTIAL


        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT

                       _________

                      NO. 10-2420
                       _________


           UNITED STATES OF AMERICA

                            v.

    VALENTINO HENDERSON, a/k/a Van Henderson

                 Valentino Henderson,
                                Appellant

                       _________

     On Appeal from the United States District Court
         for the Middle District of Pennsylvania
          (D.C. Crim. No. 1-06-cr-00234-001)
      District Judge: Hon. Christopher C. Conner
                       _________

       Submitted Under Third Circuit LAR 34.1(a)
                    July 12, 2011

Before: SLOVITER, FUENTES, and GARTH, Circuit Judges

                  (Filed: July 14, 2011)
                       _________

                       OPINION
                       _________
SLOVITER, Circuit Judge.

       Appellant Valentino Henderson, who was convicted by a jury of conspiracy to

distribute and possess with intent to distribute cocaine hydrochloride in violation of 21

U.S.C. § 846 and distribution and possession with intent to distribute cocaine

hydrochloride in violation of 21 U.S.C. § 841(a)(1), appeals from the District Court‟s

order denying him relief under 28 U.S.C. § 2255. Henderson seeks relief claiming that

his trial counsel was constitutionally ineffective for failing to move to suppress evidence

obtained during the search of Henderson‟s home on the theory that the consent of

Henderson‟s wife to the warrantless search was involuntary. For the following reasons,

we will affirm.

                                             I.

       The Pennsylvania State Police received information from a confidential informant

that Henderson was receiving packages of cocaine through the United States Postal

Service. Following an investigation, police officers intercepted a package destined for

Henderson which contained approximately two kilograms of cocaine hidden within a

stuffed animal. Based on this discovery, the police and Postal Inspector Yvette Thomas

obtained an anticipatory search warrant to search Henderson‟s home in the event that he

took the package into his home and opened it. However, Henderson placed the package

in his car and attempted to drive away with the package in the front seat. He was pulled

over and arrested by police waiting at the scene.




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      Inspector Thomas, who had no warrant, sought to obtain the consent of

Henderson‟s wife to search their home. Mrs. Henderson initially refused to authorize the

search and consented only after Inspector Thomas persuaded her to consent.

      Inspector Thomas mentioned the possibility that a warranted search could lead to

Mrs. Henderson‟s arrest and the placement of her children in state custody.1 Inspector

Thomas testified that she made no threats, but admitted she told Mrs. Henderson that

signing the consent form would be viewed as cooperation and would be “take[n] . . . into

consideration [in deciding] whether or not to charge her for whatever contraband was

found in the house.” App. at 221.

      After forty minutes of discussion, Mrs. Henderson signed the consent form. The

search discovered pieces of incriminating evidence, including two digital scales with

cocaine residue on their trays, UPS shipping envelopes, an empty bottle of the cocaine

cutting agent Inositol, two cellular phones, and another stuffed animal with a seam of

non-matching thread that had been torn open.

      Following the guilty verdict by a jury in the Middle District of Pennsylvania,

Henderson filed a petition for writ of habeas corpus under § 2255 claiming, in part,


1
  The District Court credited the testimony of Inspector Thomas, implicitly rejecting Mrs.
Henderson‟s testimony where conflicts between the accounts arose. United States v.
Henderson, No. 1:06-CR-0234, 2010 WL 1565295, at *4 (M.D. Pa. Apr. 19, 2010). We
review the District Court‟s factual findings for clear error, and find none here. Mrs.
Henderson had claimed that the following statements were made to her: (1) that a search
warrant could “definitely” be obtained; (2) that she could be arrested if drugs were
located during the search; and (3) that child protective services could be called to take
custody of her children while they “figure all this out.” App. at 167-68. Additionally,
Mrs. Henderson had claimed that she only consented to the search after Inspector Thomas
agreed to the condition that her children would not be taken away.
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ineffective assistance of counsel. The District Court denied the petition following an

evidentiary hearing. Henderson was granted a certificate of appealability on the issue set

forth below.

                                             II.

       The District Court had jurisdiction under 28 U.S.C. § 2255, and this court has

appellate jurisdiction under 28 U.S.C. §§ 1291, 2253, and 2255(d). On appeal from the

District Court‟s denial of a habeas petition, we exercise plenary review over the District

Court‟s legal conclusions and apply a clearly erroneous standard to the District Court‟s

findings of fact. See United States v. Cepero, 224 F.3d 256, 258 (3d Cir. 2000) (en banc).

                                             III.

       In order to demonstrate that his trial counsel was ineffective in violation of

Henderson‟s Sixth Amendment rights, Henderson must demonstrate that (1) his trial

counsel‟s representation was deficient, and (2) this deficient representation prejudiced

him. Strickland v. Washington, 466 U.S. 668, 687 (1984).

       Henderson argues that his trial counsel‟s assistance was deficient for failing to

move to suppress evidence obtained from the warrantless search of his home. To satisfy

the first prong, Henderson must demonstrate that his motion to suppress would have had

merit. See United States v. Saunders, 165 F.3d 248, 253 (3d Cir. 1999) (“There can be no

Sixth Amendment deprivation of effective counsel based on an attorney‟s failure to raise

a meritless argument.”). Henderson argues that this motion to suppress would have had

merit at trial because coercive threats issued by Inspector Thomas tainted the

voluntariness of Mrs. Henderson‟s consent to the search. See Schneckloth v. Bustamonte,

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412 U.S. 218, 222 (1973) (noting that consent to a search is only valid if “freely and

voluntarily given”) (internal quotation omitted).

       Specifically, Henderson argues that Mrs. Henderson‟s consent was not voluntary

because it was obtained following a threat to place her children in state custody. He

relies on the decision in United States v. Ivy, where the court held that a threat to place an

individual‟s children in state custody is an “objectively improper police action . . . [that]

significantly intensif[ies] the coercive tenor of the request for consent.” 165 F.3d 397,

403 (6th Cir. 1998). The facts in Ivy are different from those we have here. In Ivy, the

defendant was detained for one and a half hours before he consented to the search of his

home, during which time his infant child was periodically taken from the arms of its

mother, and his girlfriend was handcuffed to a table leg. Id. at 404.

       Because the facts in Ivy are not analogous to those before us, we agree with the

District Court‟s statement that “Henderson‟s invoked concern for family is not per se

coercive, and did not taint the voluntariness of the consent to search petitioner‟s house.”

Henderson, 2010 WL 1565295, at *5. The District Court correctly concluded that the

circumstances in which Mrs. Henderson‟s consent was obtained are “easily

distinguishable” from those described in Ivy. Id. Contrary to Henderson‟s assertion that

“[t]he environment [in which Mrs. Henderson‟s consent was requested] was . . . one

dominated by law enforcement,” Appellant‟s Br. at 23, the District Court found that the

time of day and Mrs. Henderson‟s freedom to go about her routine activities undermined

any finding of a coercive atmosphere.


                                              5
       Moreover, the District Court found that Inspector Thomas did not explicitly

threaten Mrs. Henderson concerning her children, as was the case in Ivy. Instead, the

District Court found that Inspector Thomas “accurately informed [Mrs.] Henderson of the

current situation, and the possible outcome if she did not cooperate.” Henderson, 2010

WL 1565295, at *4. Considering the limited duration and intensity of Inspector Thomas‟

interaction with Mrs. Henderson relative to that found sufficiently coercive in Ivy, we

conclude that Mrs. Henderson‟s consent was not involuntarily coerced. See also United

States v. Santiago, 428 F.3d 699, 705 (7th Cir. 2005) (finding any analogy to Ivy inapt

since “the police behaved „very professionally‟ and . . . [since] the entire incident took no

more than fifteen or twenty minutes and was devoid of any badgering or harassment”).

       Henderson also argues that Mrs. Henderson‟s consent was involuntary because

Inspector Thomas represented to her that a search warrant could undoubtedly be

obtained. Inasmuch as Inspector Thomas did indeed have probable cause to search

Henderson‟s home at the time she requested Mrs. Henderson‟s consent, we agree with the

government that the statement made to Mrs. Henderson that a search warrant could be

obtained was not coercive. See United States v. Sebetich, 776 F.2d 412, 425 (3d Cir.

1985) (observing that if a police officer has probable cause to search, then statements that

a warrant could be obtained are not deceitful representations). The government‟s

conclusion that Inspector Thomas had probable cause to search Henderson‟s home is

correct given that: (1) she possessed information provided by a confidential informant

describing criminal activity being conducted out of Henderson‟s home; and (2) she had

intercepted a package containing cocaine destined for Henderson‟s residence. See United

                                              6
States v. Burton, 288 F.3d 91, 103 (3d Cir. 2002) (“probable cause to search can be based

on an accumulation of circumstantial evidence that together indicates a fair probability of

the presence of contraband at the home of the arrested”).

       Accordingly, the voluntariness of Mrs. Henderson‟s consent was not tainted by

Inspector Thomas‟ statements. It follows that the motion to suppress would have lacked

merit. Thus, Mr. Henderson has failed to demonstrate that his trial counsel was deficient

for failing to make the motion to suppress.

                                              IV.

       For the reasons set forth, we will affirm the District Court‟s order.




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