                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 13-4597


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

           v.

COLLIN HAWKINS,

                  Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(1:06-cr-00583-CCB-1)


Argued:   December 11, 2014                  Decided:    March 30, 2015


Before TRAXLER,      Chief   Judge,   and   WYNN   and   HARRIS,   Circuit
Judges.


Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Chief Judge Traxler and Judge Harris joined.


ARGUED: Thomas J. Saunders, LAW OFFICE OF THOMAS J. SAUNDERS,
Baltimore, Maryland, for Appellant.   Michael Clayton Hanlon,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
WYNN, Circuit Judge:

      A    jury   convicted      Defendant      Collin     Hawkins       of    carjacking

(“Count     One”),      possessing        and     brandishing        a        firearm    in

furtherance of a crime of violence (“Count Two”), and being a

felon in possession of a firearm (“Count Three”).                               On direct

appeal, Hawkins successfully challenged the improper joinder of

Counts One and Two with Count Three.                 United States v. Hawkins,

589 F.3d 694 (4th Cir. 2009), amended and superseded by No. 08-

4576, 2015 WL 151610, at *4–8 (4th Cir. Jan. 13, 2015) (vacating

Hawkins’s 360-month sentence and his convictions on Counts One

and   Two).       On   remand,    the     Government     elected      not      to    pursue

Counts One and Two, and Hawkins was resentenced to 63 months’

imprisonment      and   two   years       of    supervised      release        for   Count

Three.

      In    his   second    appeal,       Hawkins   argues      that      (1)    the    gun

underpinning Count Three should have been suppressed because the

search and seizure violated the Fourth Amendment, and, in the

alternative, (2) he had ineffective assistance of counsel.                              For

reasons     explained      below,    the       mandate   rule    bars         Defendant’s

Fourth     Amendment    claim,      and    he   fails    to   raise      a     cognizable

ineffective-assistance-of-counsel                 claim.         Accordingly,            we

affirm.




                                           2
                                                I.

       On     November       22,   2006,        Defendant          participated      in     the

carjacking      and     robbery      of     a    Baltimore         taxi    driver.         Soon

thereafter, a warrant was issued for his arrest.                           On December 9,

2006,       police    (who    were     unaware        of     the     outstanding       arrest

warrant) received a call from an informant alerting them that an

individual      named    “Slankru”        or     “Ru”      (Defendant’s      aliases)       had

shot a police officer on December 5, 2006, and currently was on

his way to meet the informant at a particular Exxon gas station.

The informant gave the officer on the phone Defendant’s physical

description, and that officer relayed the information to William

Painter, an officer in the field.

       Based     on    the     information,           Painter       and    several        other

officers headed toward the gas station.                        While waiting near the

gas     station,       Painter       noticed          an     African       American        male

approaching.          Painter      specifically            noted    that   the   man      twice

“tugged at his waistband on his right-hand side” in a manner

consistent with carrying a weapon without a holster.                              J.A. 352.

When    the     man     entered       the       gas     station,       Painter     received

confirmation that he was the person they were looking for.

       In full police uniform, Painter approached the gas station

entrance.       He could see Defendant through the window, and he

believed Defendant could see him.                       As Painter started to open

the    gas    station    door,       he   again       observed       Defendant       reaching

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toward his waistband.            Because he believed that Defendant had a

weapon, Painter drew his firearm and ordered Defendant to the

ground multiple times.             Defendant did not comply, and Painter

shoved him to the ground.

     While both men were on the ground, Defendant continued to

reach for his waistband.            Defendant continued to reach for his

waistband     even    as    Painter      applied      force     and     attempted    to

handcuff him.        Painter saw a handgun in Defendant’s waistband,

secured it, and, with the help of another officer, handcuffed

Defendant.      Painter      recalled      ordering         Defendant    to   keep   his

hands    visible     “at   least    eight      to    ten”    times,     but   Defendant

reached for his weapon “at least six times.”                    J.A. 361.

     Defendant was subsequently indicted, and a jury found him

guilty on three counts.              Counts One and Two related to the

carjacking,    and     Count     Three   was     a   felon-in-possession         charge

stemming    from     the   gas   station       incident.       The    district    court

sentenced Defendant to 360 months’ imprisonment, and Defendant

appealed.

     On appeal, this Court reversed Defendant’s convictions on

Counts One and Two because they were improperly joined to Count

Three.      Count Three was remanded for resentencing.                         Hawkins,

2015 WL 151610, at *4–8.            On remand, the government elected not

to retry Counts One and Two, and the district court sentenced

Defendant to 63 months’ imprisonment on Count Three.                          Defendant

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now appeals the 63-month sentence, contending that (1) the gun

underpinning Count Three should have been suppressed because the

search and seizure violated the Fourth Amendment, and (2) he had

ineffective assistance of counsel.



                                      II.

       At the outset, we must determine whether the mandate rule

precludes   Defendant     from     raising     his    Fourth    Amendment      claim.

“The mandate rule is a specific application of the law of the

case    doctrine”    to   cases    that       have   been     appealed   and    then

remanded.       Volvo Trademark Holding Aktiebolaget v. Clark Mach.

Co., 510 F.3d 474, 481 (4th Cir. 2007).                   The rule generally bars

litigation of issues that could have been, but were not, raised

before remand.      Stated differently, “under the mandate rule[,] a

remand proceeding is not the occasion for raising new arguments

or legal theories.”          Id.    See also, e.g.,             United States v.

Bell, 5 F.3d 64, 66 (4th Cir. 1993) (noting that the mandate

“rule forecloses litigation of issues decided by the district

court     but     foregone    on     appeal          or     otherwise    waived”).

Accordingly, “‘[i]t is elementary that where an argument could

have been raised on an initial appeal, it is inappropriate to

consider that argument on a second appeal following remand.’”

Omni Outdoor Adver., Inc. v. Columbia Outdoor Adver., Inc., 974



                                          5
F.2d 502, 505 (4th Cir. 1992) (quoting Northwestern Indiana Tel.

Co. v. F.C.C., 872 F.2d 465, 470 (D.C. Cir. 1989)).

     But exceptions to the mandate rule exist.                      Those exceptions

include circumstances where (1) a litigant can demonstrate that

the legal landscape has dramatically changed, (2) significant

new evidence has come to light, or (3) a “blatant error in the

prior    decision     will,     if    uncorrected,         result       in     a   serious

injustice.”    Bell, 5 F.3d at 67.

     At trial, the district court denied Defendant’s motion to

suppress the firearm seized at the gas station. 1                        Defendant did

not raise this issue during the first appeal, but in his second

appeal    he   contends       that    the       introduction       of        the   firearm

constitutes    a    “blatant    error”      that    will    result      in     a   serious

injustice if left uncorrected because his arrest was illegal.

We are not persuaded by this argument.

     First,    even    if     the    introduction     of     the    firearm        was   an

error, it cannot properly be characterized as blatant error.                             To


     1
       The district court denied the motion to suppress because
Hawkins had an outstanding arrest warrant, despite the fact that
the arresting officers were unaware of the warrant.      Neither
Hawkins nor the Government relies on this incorrect statement of
the law on appeal.    See Gov’t’s Br. at 25 (“[The Court has]
consistently recognized that, even though we disagree with the
reasoning of the district court, we may affirm the result on
different grounds if fully supported by the record.” (quoting
Brewster of Lynchburg, Inc. v. Dial Corp., 33 F.3d 355, 361 n.3
(4th Cir. 1994))).



                                            6
prevent     prejudice          at    trial,        the      district     court    barred     the

government from referring to Defendant’s suspected involvement

in   the   shooting       of    the        police      officer     and   limited    Painter's

testimony       to     what    he     witnessed        at    the   gas    station,       without

mention of the informant's call.                       This circuit and several other

circuits        have    held        that    grabbing,         touching,     or    securing    a

waistband may be evidence of the possession of a firearm, albeit

as part of the totality of the circumstances.                             See, e.g., United

States     v.    Briggs,       720     F.3d       1281,     1287–89      (10th    Cir.    2013);

United States v. Oglesby, 597 F.3d 891, 894–95 (7th Cir. 2010)

(crediting testimony that “police officers are trained to watch

for such behavior since experience has shown that a subject who

pats his waistband may be trying to confirm that his gun is

concealed and secured”); United States v. Dubose, 579 F.3d 117,

122 (1st Cir. 2009);                 United States v. Padilla, 548 F.3d 179,

188–89 (2d Cir. 2008); United States v. Humphries, 372 F.3d 653,

658-60 (4th Cir. 2004).                The prevalence of such cases and their

relative similarity to the facts of this case suggest that the

district        court    committed           no     blatant      error     when    it    denied

Defendant’s motion to suppress the firearm. 2




      2
       To be clear, we do not hold that several waistband checks
alone provide grounds for a constitutional search and seizure.
We need not, and therefore do not, reach that issue here.



                                                   7
      Second, Defendant has failed to demonstrate that he will

suffer      a    serious    injustice.           True,       the   Supreme     Court   has

unequivocally stated that “we cannot forgive the requirements of

the Fourth Amendment in the name of law enforcement.”                            Berger v.

New York, 388 U.S. 41, 62 (1967).                     But we do not have a clear

violation of the Fourth Amendment before us; the entirety of the

record      demonstrates        that   a    known     police       informant      provided

information about Defendant’s involvement in a police shooting

and his approach to the Exxon station, the latter of which was

corroborated by active police observation.

      In sum, because Defendant waived his Fourth Amendment claim

by not raising it on his first appeal and no exception applies,

the mandate rule bars his Fourth Amendment claim.



                                           III.

      Cognizant of the mandate rule’s bar, Defendant asserts that

his appellate counsel was ineffective for failing to raise his

Fourth      Amendment      claim    in     his    first       appeal.      To     raise   a

cognizable       ineffective       assistance      of       counsel   claim,     Defendant

must demonstrate that (1) his appellate counsel was deficient

and   (2)       he   suffered    prejudice       as     a    direct     result    of   this

deficiency.          See Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir.

2000) (en banc) (extending Strickland v. Washington ineffective-



                                             8
assistance-of-counsel analysis to appellate counsel).                             Defendant

can do neither.

     The law presumes effective assistance.                          To overcome that

presumption, Defendant must show that appellate counsel ignored

clearly strong arguments on the first appeal.                       Id.     By contrast,

“[w]innowing     out   weaker      arguments         on    appeal    and     focusing       on

those     more   likely    to     prevail,      far       from    being     evidence        of

incompetence, is the hallmark of effective appellate advocacy.”

Id. (internal quotation marks omitted).

     Defendant’s counsel for his first appeal managed to reduce

his 360-month sentence to 63 months.                      Based on this success and

the prevalence of the abovementioned waistband-check cases, any

Fourth     Amendment      claim    would       not    have       been     stronger        than

counsel’s appellate strategy of attacking the improperly joined

counts.

     In      addition,      barring        a     conclusive              record     showing

ineffective      assistance       of   counsel,       Defendant          must     bring    his

claim through a 28 U.S.C. § 2255 motion.                     United States v. King,

119 F.3d 290, 295 (4th Cir. 1997).                    Again, the record does not

conclusively      show     ineffective          assistance          of     counsel,        and

therefore this claim must fail.




                                           9
                             IV.

     For the foregoing reasons, we affirm the district court’s

judgment.

                                                      AFFIRMED




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