                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-8042


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

VICTOR EUGENE MASON,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.     Cameron McGowan Currie, Senior
District Judge. (3:06-cr-00607-CMC-1; 3:12-cv-02757-CMC)


Argued:   September 16, 2014            Decided:   December 18, 2014


Before WILKINSON and GREGORY, Circuit Judges, and Henry E.
HUDSON, United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed by published opinion.       Judge Wilkinson wrote the
majority opinion, in which Judge Hudson joined.     Judge Gregory
wrote an opinion concurring in part and dissenting in part.


ARGUED: Nathan S. Mammen, KIRKLAND & ELLIS LLP, Washington,
D.C., for Appellant.    James Hunter May, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.      ON
BRIEF: William Fink, KIRKLAND & ELLIS LLP, Washington, D.C., for
Appellant.   William N. Nettles, United States Attorney, Jimmie
Ewing, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.
WILKINSON, Circuit Judge:

       Petitioner   Victor        Mason    was    convicted    by    a    jury      of    one

count of conspiracy to possess with intent to distribute five or

more    kilograms   of   powder        cocaine     in   violation        of   21    U.S.C.

§§ 841(a)(1)    and    846.      His     arrest    followed    a    traffic        stop    on

Interstate 20 in Georgia. He now brings a 28 U.S.C. § 2255

petition challenging his conviction on grounds of ineffective

assistance of counsel. He makes several claims, among them his

attorneys’     failure      to    raise     both    a   racially         selective        law

enforcement argument and a Fifth Amendment violation before the

trial court and on direct appeal. The district court rejected

Mason’s claims, and for the following reasons, we affirm.

                                           I.

                                           A.

       On August 12, 2005, Georgia State Trooper Blake Swicord

stopped Victor Mason, who was driving eastbound on Interstate

20, in Morgan County, Georgia. Trooper Swicord initiated the

stop because he suspected the vehicle’s windows were tinted in

excess of the lawful limit. When the officer activated his blue

lights,    audio      and        video     equipment      in       the     patrol         car

automatically    began      recording.       Trooper     Swicord     testified           that

after    stopping     Mason      several     things     aroused      his      suspicion,

including the fact that Mason had not immediately pulled over,

that the car smelled strongly of air freshener and that there

                                            2
was no visible luggage. He asked Mason to step out of the car

and questioned both occupants of the vehicle – Mason, who was

driving,    and   his    cousin     Nathaniel       Govan,    who    occupied     the

passenger seat. Mason explained to Trooper Swicord that he had

borrowed the car from his daughter and that the men had driven

to Atlanta to visit Mason’s uncle and see about a deed. Govan

told a different story, saying that they had driven to see a

friend.

      Noticing    a     newspaper     from    the    Radisson       Hotel    in   the

backseat, which matched neither story, Trooper Swicord suspected

that the two men had lied about where they had been and were

involved in criminal activity. Trooper Swicord returned to the

patrol car to radio Sergeant Michael Kitchens, and ask him to

come to the scene with his drug-detection dog: “When you get

through with that . . . come on over here to me, right here. I

got something right here. These guys are spooky, spooky.” J.A.

at   98.   Returning    to   the    stopped   vehicle,       the    police   officer

tested the window tinting -- finding it above the legal limit --

and again walked back to his patrol car. He radioed in Mason and

Govan’s names and dates of birth, asking the dispatcher to “just

hold ‘em for right now.”            See J.A. at 100. Returning to Mason

and Govan’s car, he gave Mason a warning ticket for the illegal

tint, completing the traffic stop.



                                        3
       However, instead of releasing Mason and Govan, he requested

consent to search the vehicle, asking specifically if Mason had

“any drugs in the car.” See J.A. at 100. Mason declined to

consent to a search. Trooper Swicord asked Govan to exit the

vehicle, by which point Sergeant Kitchens had arrived with his

drug-detection    dog.    The   dog       alerted       to   the    presence   of

narcotics, at one point jumping into the backseat through the

open    driver-side   window.    At        that     point,    Trooper      Swicord

proceeded to search the vehicle. In the trunk, he found a black

gym    bag   containing   approximately           ten   kilograms     of   powder

cocaine.

       Trooper Swicord arrested both Govan and Mason, read them

their Miranda rights, and placed them in the backseat of the

patrol car. The audio and video recording equipment chronicled

the conversation between the men. Although Govan did most of the

talking, Mason also participated in the conversation as they

discussed the traffic stop and the fact that both men were on

probation at the time of the arrest.

                                      B.

       Mason was indicted and charged in the District of South

Carolina with conspiracy to possess with intent to distribute

more than five kilograms of cocaine, in violation of 21 U.S.C.

§§ 841(a)(1) and 846. Prior to trial, Mason filed a motion to

suppress the evidence, challenging the extension of the traffic

                                      4
stop and the car search on Fourth Amendment grounds. See United

States v. Mason, 628 F.3d 123, 127 (4th Cir. 2010). He argued

that Trooper Swicord “lacked reasonable suspicion to detain him

beyond   completion    of   the    traffic   stop,”     and   that       “the   dog’s

entry into his vehicle was not supported by probable cause.” Id.

      At the suppression hearing, Trooper Swicord testified that

he called Sergeant Kitchens for backup because he “felt like we

were fixing to have a violent confrontation” as “Mr. Mason and

Mr. Govan are older black males that are not in good shape” and

he thought they were likely “fixing to shoot it out.” See J.A.

at 34-35. The district court denied Mason’s motion to suppress

and a two-day jury trial followed.

      At trial, Govan, who had pled guilty, served as the primary

witness against Mason. Govan testified that he had put the bag

in the trunk, that he had not looked in the bag, and that he did

not   know   whether   Mason      knew   there   were    drugs      in    the    bag.

However, he did suggest that Mason knew the purpose of the trip

based on a prior conversation between the two. The government

introduced    the   video    and    a    transcript     of    the    conversation

between Govan and Mason in the patrol car into evidence. Mason

chose not to testify, and his attorney focused on calling into

question Govan’s credibility as a witness.

      During closing argument, in his rebuttal, the prosecutor

referenced the conversation, arguing that if Mason did not know

                                         5
what was in the trunk, he would have been more surprised by the

discovery of drugs:

      Ladies and gentlemen, if Mr. Mason didn’t know that
      there were 10 bricks of cocaine in that car, do you
      really think that’s how that conversation in the back
      of that patrol car would have gone? . . . When they
      stacked those ten kilos up, if nobody expected those
      to be there, somebody is going to be real upset. . .
      That is not what the transcript and the audio that you
      could hear in their conversation shows. What it shows,
      nobody was surprised.

J.A. at 402-03.

      The   jury    convicted      Mason     and    he   was   sentenced     under   21

U.S.C. § 841(b)(1)(A) to life imprisonment based on the quantity

of drugs and his prior criminal record. He appealed, challenging

the lawfulness of extending the traffic stop, the search by the

drug dog, and the use of prior convictions in sentencing. He did

not challenge the fact that Trooper Swicord had “‘probable cause

to believe that a traffic violation [had] occurred’” sufficient

to   initiate      the    stop    of   Mason’s      vehicle.      United   States    v.

Sowards, 690 F.3d 583, 588 (4th Cir. 2012) (quoting Whren v.

United States, 517 U.S. 806, 810 (1996)). On appeal, this court

concluded    that        “the    objective       facts   facing    Trooper    Swicord

created a reasonable suspicion of criminal activity and that he

was therefore justified . . . in extending the stop.” Mason, 628

F.3d at 130.        In addition, this court found probable cause to

justify the search of the vehicle. The fact that the drug dog

alerted several times outside the vehicle “creat[ed] probable

                                             6
cause to believe that narcotics were present even prior to the

dog’s entry into the vehicle.” Id. Mason’s conviction became

final on October 3, 2011, when the United States Supreme Court

denied his petition for writ of certiorari.

     On September 21, 2012, Mason filed a § 2255 petition for

collateral relief, alleging ineffective assistance of counsel at

both the trial and appellate proceedings. 1 Petitioner asserted

ineffective    representation        on    five       grounds,     including    --   at

issue here -- failure to raise an Equal Protection challenge

alleging racially selective law enforcement and failure to raise

a possible violation of his Fifth Amendment rights based on the

government’s    trial   reference         to    his    post-arrest       silence.    The

district court denied his petition on the merits. This court

granted petitioner a certificate of appealability on the Equal

Protection     question     on   August          1,        2013,   and    a   separate

certificate on the Fifth Amendment question on May 23, 2014.

                                          II.

     Mason     first      contends        that        he     received     ineffective

assistance because counsel declined to raise an Equal Protection

claim of racially selective law enforcement. For this court to

find ineffective assistance of counsel, Mason must demonstrate

both that his counsel’s performance fell below the standard of

     1
       Petitioner was represented by two separate attorneys at
trial and on direct appeal.


                                           7
objective reasonableness and that the deficient performance was

prejudicial to his defense. See Strickland v. Washington, 466

U.S. 668, 687-88 (1984). This he cannot do.

                                          A.

       It is important at the outset to emphasize the basic lesson

of Strickland v. Washington: “[j]udicial scrutiny of counsel’s

performance must be highly deferential.” Id. at 689. It is “all

too    tempting    for     a        defendant   to     second-guess       counsel’s

assistance after conviction or adverse sentence, and it is all

too easy for a court, examining counsel’s defense after it has

proved    unsuccessful,        to    conclude   that    a    particular    act   or

omission of counsel was unreasonable.” Id. Thus, an evaluation

of attorney performance requires that “every effort be made to

eliminate the distorting effects of hindsight.” Id. Further, we

must “indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.”

Id. Attorneys need not raise every possible claim to meet the

constitutional standard of effectiveness. They are permitted to

set priorities, determine trial strategy, and press those claims

with the greatest chances of success. See Evans v. Thompson, 881

F.2d 117, 124 (4th Cir. 1989). In fact, there are “countless

ways     to   provide    effective       assistance     in   any   given    case.”

Strickland, 466 U.S. at 689. “Even the best criminal defense



                                          8
attorneys would not defend a particular client in the same way.”

Id.

       The “right to effective assistance of counsel extends to

require such assistance on direct appeal” as well as at trial.

Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000) (en banc)

(applying     the    Strickland       standard       to     claims     of       ineffective

assistance of counsel during appellate proceeding). We likewise

presume that appellate counsel “decided which issues were most

likely to afford relief on appeal.” Pruett v. Thompson, 996 F.2d

1560, 1568 (4th Cir. 1993). Effective assistance of appellate

counsel    “does    not    require     the       presentation     of      all    issues   on

appeal that may have merit.” Lawrence v. Branker, 517 F.3d 700,

709 (4th Cir. 2008). As a general matter, “‘only when ignored

issues are clearly stronger than those presented’” should we

find    ineffective       assistance    for       failure    to   pursue         claims   on

appeal. Smith v. Robbins, 528 U.S. 259, 288 (2000) (quoting Gray

v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)).

       Mason’s counsel, by choosing to pursue a Fourth Amendment

claim     rather     than       an   Equal        Protection      challenge,           acted

effectively        under    the      aforementioned          standards.           To   find

otherwise would involve the very course of hindsight and the

very faulting of counsel for raising stronger rather than weaker

claims that the Supreme Court has insisted we avoid. It would be

wholly    wrong     to   find    ineffective        assistance       of     counsel    when

                                             9
Mason’s     attorneys      diligently       pursued        the      claims     they    quite

reasonably believed to be the most likely to succeed. See Smith,

528 U.S. at 288. Although it is frequently raised, a finding of

ineffective assistance of counsel still carries a significant

stigma for members of the profession. We decline to tar Mason’s

attorneys with this brush. The bar for censure is not so low.

      The   Fourth      Amendment        challenge     to     the    extension        of   the

traffic stop and the dog search was an obvious one. Competent

attorneys would instinctively have examined such a claim where

defendant’s case arose from a police stop, an extension of said

stop,     and    a    subsequent    search       of   the     vehicle.         The   factual

context plainly implicates the Fourth Amendment. Even though the

claim     was    ultimately      unsuccessful,        it    would     be     anomalous      to

characterize Mason’s attorneys as ineffective for pursuing it.

In fact, a panel of this court heard argument on the contention,

wrote     extensively       on     it,     and    responded          to    a    thoughtful

dissenting opinion. See generally Mason, 628 F.3d 123. There can

be   no   plausible      suggestion       made    that      Mason’s       attorneys        were

anything        but   capable    and     competent       in      pursuing      the    Fourth

Amendment challenge. Id.

                                            B.

      By contrast to the well-settled path of Fourth Amendment

challenges, the racially selective law enforcement claim was a

long shot. The Constitution “prohibits selective enforcement of

                                            10
the law based on considerations such as race.” Whren, 517 U.S.

at 813. Mason claims that he and Govan were singled out for the

window     tint    violation      (disproportionately               associated        with

minority drivers), that the officer described them as “spooky,”

waited for backup because they were “older black men that are

not in good shape” and likely to “shoot it out,” and kept them

on the side of the road and searched the car. All of this, he

says, suggests an impermissible race-based motivation underlying

Trooper Swicord’s conduct. Appellant’s Br. at 18-22.

      As    the    district    court        recognized,        counsel         were     not

ineffective in appreciating the difficulty of this course. This

court has adopted the standard the Supreme Court set forth in

United States v. Armstrong, 517 U.S. 456 (1996), for cases of

racially animated law enforcement. See United States v. Bullock,

94 F.3d 896, 899 (4th Cir. 1996). The defendant must show both

“discriminatory       effect   and    that     [the      officer’s        action]       was

motivated by a discriminatory purpose.” Armstrong, 517 U.S. at

465 (quoting Wayte v. United States, 470 U.S. 598, 608 (1985)).

Both the Supreme Court and this court have explained why this is

a   difficult     contention   on    which     to   prevail.        A    selective      law

enforcement claim “asks a court to exercise judicial power over

a   special   province    of   the    Executive.”        Id.    at       464   (internal

quotation     marks   omitted).      In    light    of   “the       great      danger    of

unnecessarily      impairing   the        performance     of    a       core   executive

                                          11
constitutional        function,”        petitioners         must     demonstrate           “clear

evidence” of racially animated selective law enforcement. United

States v. Olvis, 97 F.3d 739, 743 (4th Cir. 1996).

      This    “standard       is    intended          to     be     a    ‘demanding’         and

‘rigorous’ one.” Id. (quoting Armstrong, 517 U.S. at 463, 468).

Counsel can hardly be deemed ineffective for taking the Supreme

Court’s    own    statements       as    to    its     difficulty          and   as    to     its

separation       of     powers     implications             into     account.         To     show

discriminatory effect, petitioner must demonstrate, inter alia,

that “similarly situated individuals of a different race” were

not similarly targeted by law enforcement. Olvis, 97 F.3d at 743

(quoting Armstrong, 517 U.S. at 465). Here, for example, there

was   no   evidence      of   similarly        situated           whites    being      treated

differently. See Armstrong, 517 U.S. at 470 (“[I]f the claim of

selective prosecution were well founded, it should not have been

an insuperable task to prove that persons of other races were

being treated differently.”).

      In sum, the Armstrong burden is a demanding one and Mason

has failed to identify any cases at the Supreme Court or in this

circuit      where      an    Armstrong        violation           for     selective          law

enforcement       has     been     found.          Fourth     Amendment          claims,       by

contrast,     are     often   successful.           See,     e.g.,      United    States       v.

Massenburg, 654 F.3d 480 (4th Cir. 2011) (finding officer lacked

reasonable suspicion sufficient to justify search of suspect on

                                              12
foot). More specifically, several Fourth Amendment infringements

have been found recently as to car searches, the very context,

if not the precise facts, that counsel was confronting here.

See, e.g., United States v. Powell, 666 F.3d 180 (4th Cir. 2011)

(finding officer lacked reasonable suspicion to frisk passenger

in extension of routine traffic stop).

       To be sure, the two challenges are not, at least as a

technical matter, mutually exclusive. See, e.g., Whren, 517 U.S.

at 813. However, one is clearly more likely to be successful

than the other. Attorneys can be selective and strategic without

risking       an    ineffective         assistance     of        counsel     claim.     See

Strickland, 466 U.S. at 689. We have consistently made clear

that we do not penalize attorneys for failing to bring novel or

long-shot contentions. See, e.g., United States v. McNamara, 74

F.3d 514, 516 (4th Cir. 1996) (novel claims); see also Pruett,

996 F.3d at 1568 (long-shot claims). Attorneys exist to exercise

professional judgment, which often involves setting priorities.

See    Bell,       236   F.3d     at    164.    Indeed,     it    can   be    positively

detrimental        to    a   client’s    chances     not    to    set   priorities      but

rather to scattershot the case by raising every objection at

trial and pressing every imaginable contention on appeal. In

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

on    those    more      likely    to    prevail .    .    .     is   the    hallmark   of



                                               13
effective appellate advocacy.’” Id. (quoting Smith v. Murray,

477 U.S. 527, 536 (1986)) (brackets in original).

      Mason’s       attorneys,       on    this    record,    chose      to   pursue   a

challenge under the Fourth Amendment to the extension of the

traffic stop and to the K-9 search that led to his arrest. See

United States v. Mason, 628 F.3d 123 (4th Cir. 2010). The vast

majority of attorneys would have chosen this exact same course

as the most effective defense for their client and the path most

likely    to     succeed.      We    cannot       say    Mason’s    attorneys     were

ineffective for choosing the route more commonly tread and more

likely    to   be      successful        before    the   district     and     appellate

courts.

                                            C.

     Mason also contends that the district court should have

held an evidentiary hearing to evaluate whether counsel were

ineffective for failing to raise an Equal Protection claim. See

Appellant’s      Br.     at   29.   He    argues    that,    even   if    the   current

record is insufficient to support a claim of racially animated

law enforcement, Trooper Swicord’s testimony at the suppression

hearing    and      at   trial      provides       grounds   for    an    evidentiary

hearing. However, the district judge was quite familiar with the

facts, as well as the performance of counsel. That judge had

presided over the suppression hearing and the trial, as well as

on collateral review. In fact, the extension of the stop as well

                                            14
as the search, indeed every phase of police activity in this

case, has been subject to a hearing. We see no need now to

remand for a further repetitive exercise.

     Although claims of racially selective law enforcement and

challenges under the Fourth Amendment are not identical, they

certainly      overlap.    Here,     this      court      had       determined         that        the

“objective      facts    facing     Trooper       Swicord        created         a    reasonable

suspicion of criminal activity” such that no violation of the

Fourth Amendment occurred. Mason, 628 F.3d at 130. Where there

exists an objectively reasonable basis for the officer’s conduct

after    rigorous       challenge,      it    is     even       less       likely          that    an

Armstrong       claim    would    get    off       the    ground.          One       can     debate

endlessly      the   implications       of    this       or    that,       but       the    overall

picture borne out by this record is that of an officer who

reasonably suspected criminal activity was afoot and called for

backup    to    further    the    objectives         of       law   enforcement             and    to

ensure    his     personal    safety.        We    see        nothing      to    impeach           the

district       court’s    conclusion      that       what       happened         here        was    a

standard law enforcement procedure done in a manner that this

court    previously       found    to   be     objectively           well-grounded.                See

Mason, 628 F.3d 123.

     To begin, the stop could not have been racially motivated

because     the      tinted       windows         prevented          the        officer           from

identifying the race of the occupants. In fact, the very purpose

                                             15
of window tinting is to prevent outside observers from seeing

who    occupies      or    what      is    happening         in    the   vehicle.       Officers

cannot      just     cease       enforcement          efforts       where       there    is    an

objective reason to believe that there has been a violation of

the law. To surmise a race-based reason for the stop or Trooper

Swicord’s call for backup is to fault competent attorneys for

not    undertaking         a    stretch.        The        overpowering        scent    of    air

freshener -- often used to cover the smell of drugs -- the

conflicting stories offered by Govan and Mason, the newspaper

from the hotel, and the lack of luggage all provided in the

considered        judgment       of       the   prior        panel,      a    sufficient      and

reasonable         basis       for    Trooper        Swicord        to   suspect        criminal

activity was afoot. See Mason, 628 F.3d at 128-29.

       Moreover,      Trooper         Swicord         was     by     himself        facing    two

suspects on a route where drug trafficking was common. He was

entitled to call for backup, which again is altogether routine,

especially in a situation that could quickly escalate. Trooper

Swicord      at     trial       testified       that        “another         officer    on    the

scene . . . deters multiple suspects from trying something” that

they might have tried with only one officer present. J.A. at

179.   The    parties       likewise        seek      to    parse     and     debate    at    some

length the officer’s use of the terms “spooky” and “older black

males.” In the overall context of this case, however, the high

bar    of   Strickland         cannot      be   satisfied,          given     the    reasonable

                                                16
strategic decision of Mason’s attorneys to prioritize the Fourth

Amendment claims. Both the trial court and this court approved

of Trooper Swicord’s overall assessment of what was transpiring

in his presence. See Mason, 628 F.3d at 128. That counsel did

not succeed in their vigorous challenge of Trooper Swicord’s

actions is due to no fault of their own, but rather attributable

to the stubborn facts of a difficult case. 2

     We   do     not    suggest   that    all   lawyers     are    presumptively

capable     or   that    racially   motivated      police       actions   can   be

overlooked even where there is reasonable suspicion of criminal

activity. See Whren, 517 U.S. at 813. Nor do we submit that

Armstrong challenges can never be successful. The facts of this

case, however, do not suggest a successful Armstrong claim and

certainly    not   to    the   extent    that   counsel   was     ineffective   in

failing to raise it. No one disputes that racial discrimination

in both its overt and subtle forms continues to exist. But to

feel sadness and dismay at the persistence of prejudice is not

to say that larger social shortcomings should come crashing down


     2
       Our friend in dissent does not contest either the vigor
with which Mason’s counsel pursued the Fourth Amendment claim
or, indeed, the overall defense put forth by these lawyers for
their client. In short, they did a good job. It is all too easy
to pore over the record, pick out a single item in hindsight,
and say that this bore further investigation. Lawyers who do a
good job deserve to be free of the Monday morning (or years
later) quarterbacking that the Supreme Court in Strickland asked
us to avoid.


                                         17
upon two competent attorneys’ shoulders. Such scapegoating would

betray the noblest ends of law. We cannot fault Mason’s counsel

for believing their client’s far better chance in challenging

this sequence of events lay with the Fourth Amendment, not the

Equal Protection Clause. From a broader perspective, the record

shows Mason received competent representation throughout these

proceedings, a fact that the Supreme Court does not allow the

eye of ever wiser hindsight to undo.

                                           III.

      Mason also contends that he received ineffective assistance

because   counsel      failed    to    properly    challenge     the   use    of   his

post-arrest      silence    in   the       prosecutor’s   closing      remarks.     He

argues    that   the    prosecutor’s         suggestion   that    Mason      did   not

express sufficient surprise at the presence of drugs in his car

in his post-arrest conversation with Govan violated his Fifth

Amendment rights as set forth by the Supreme Court in Doyle v.

Ohio, 426 U.S. 610 (1976). Doyle, however, does not apply here.

      In Doyle, the defendant was arrested for selling marijuana

to a police informant and was given Miranda warnings. Id. at

611-12. At trial, he argued that he had been framed by the

informant. Id. at 612. The government, unable to present direct

evidence to contradict his story, tried to impeach his testimony

by   repeatedly    asking    why      he    had   remained   silent     instead     of

giving that story to the arresting officer. Id. at 613-14. The

                                            18
Supreme Court held that where a person has been informed of his

Miranda rights, it violates due process to allow the government

to suggest the jury draw unfavorable inferences from his choice

to   remain    silent.   See    id.     at    619.   However,    a   defendant      who

voluntarily speaks following Miranda warnings has neither been

induced to speak nor remained silent. See Anderson v. Charles,

447 U.S. 404, 408 (1980).

       Here Mason spoke voluntarily with Govan in the back of the

police car after he had been given his Miranda warnings. The

conversation was not part of a custodial interrogation; indeed

it was not initiated by law enforcement at all. Mason did not

contest at trial that he engaged in the conversation in the

patrol car and his attorney challenged statements that were made

by Govan but inadvertently attributed to Mason in the transcript

seen by the jury. Mason’s counsel even attempted to use the

conversation herself to support the theory of Mason’s defense:

that he was unaware of the drugs in the car. See J.A. at 394.

Conversation that is not the product of interrogation – speech

that is not compelled – does not fall under Doyle’s protection

of the Fifth Amendment “right to remain silent.” Doyle, 426 U.S.

at   617.    Rather,   Doyle    ensures       that   defendants      who   have    been

informed of their right to remain silent can do so even in the

face    of    persistent       police        interrogation      without     fear    of

repercussions at trial. See Doyle, 426 U.S. at 618-19 (“[W]hile

                                             19
it   is   true   that   the   Miranda    warnings   contain   no   express

assurance that silence will carry no penalty, such assurance is

implicit to any person who receives the warnings.”). Mason had

been warned that anything he said could be used against him. We

do not fault the prosecutor for doing so at trial, and we do not

fault Mason’s attorneys for declining to pursue a non-existent

Doyle violation in this case.

                                   IV.

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

judgment that counsel was not ineffective in this case.

                                                                   AFFIRMED




                                   20
GREGORY, Circuit Judge, concurring in part and dissenting in
part:

     I    concur    in     the    majority’s       decision    to    affirm      a)   the

district    court’s      dismissal      of   Mason’s      ineffective       assistance

claims against his appellate counsel, and b) the dismissal of

his claim that his trial counsel was ineffective for failing to

raise a Fifth Amendment challenge.                   Mason also contends that,

“[i]n     light    of      the    evidence     of       racially     motivated        law

enforcement and Trooper Swicord’s admitted selective enforcement

of the window tint law,” Appellant’s Br. 26, his trial counsel

provided ineffective assistance by failing to develop an equal

protection challenge.            The majority affirms the district court’s

dismissal of this claim.           I respectfully dissent.

     Mason’s       trial     counsel     faced      a    record     that    included:

Trooper Swicord’s admission that he uses window tint violations

to “fish” for vehicles that “peak[ his] interest”, statements

about Mason’s behavior that are directly contradicted by video

footage of the stop, use of the word “spooky” to describe Mason

and his cousin, an inexplicable reference to Mason’s race as a

justification for expecting violence, and actions inconsistent

with Trooper Swicord’s alleged concern for his safety.                         And yet

Mason’s    trial    counsel       not   only       failed     to    raise   an    Equal

Protection     Clause       challenge,       but     also     neglected       even     to

investigate a single one of these red flags to determine whether
such a challenge was viable.                 If Trooper Swicord’s actions were

driven      by    legitimate        concerns       rather    than     racial       bias,    a

clarifying        line      of     inquiry     would    have       afforded       him      the

opportunity to make his motivations clear.                          If, on the other

hand, Trooper Swicord did target Mason because of his race, the

attorney’s        investigation       would    have     given      Mason    a    chance     to

challenge the constitutional violation.                       Instead, both Mason’s

and   Trooper       Swicord’s        narratives      remain     incomplete.             Trial

counsel’s deficient performance caused Mason to suffer prejudice

at trial, and cannot satisfy the Sixth Amendment’s guarantee of

effective assistance of counsel.                     For these reasons, I would

reverse the district court on this issue.

      The        majority        correctly    notes     that       the     standard        for

establishing ineffective assistance of counsel is deferential to

attorneys.         See   Strickland      v.    Washington,         466    U.S.    668,     689

(1984).      But reasonableness is the touchstone of this inquiry,

and an attorney who acts unreasonably in representing her client

has not provided counsel that can pass constitutional muster.

Id. at 687.         Furthermore, while strategic decisions based on an

attorney’s           thorough           investigation               are          “virtually

unchallengeable,”           “strategic        choices       made    after        less    than

complete investigation are reasonable precisely to the extent

that reasonable professional judgments support the limitations

on investigation.”               Id. at 690-91.          The Court in Strickland

                                              22
recognized       that      “counsel        has       a    duty        to    make     reasonable

investigations        or    to     make    a     reasonable           decision      that     makes

particular investigations unnecessary.”                         Id. at 691.

     To determine whether Mason’s trial counsel was deficient

for failing to develop a selective enforcement claim, we must

examine the claim itself.                The Equal Protection Clause prohibits

officers from selectively enforcing laws based on race.                                      Whren

v. United States, 517 U.S. 806, 813 (1996).                                 When determining

whether a traffic stop was unconstitutionally selective, this

Court applies the selective prosecution standard laid out in

United States v. Armstrong, 517 U.S. 456 (1996).                                     See United

States    v.    Bullock,      94    F.3d       896,      899    (4th       Cir.    1996).        The

claimant       must   show       that     the    enforcement            policy      1)    “had    a

discriminatory            effect,”        and        2)        “was        motivated        by     a

discriminatory purpose.”             Armstrong, 517 U.S. at 465.

     To    prove      a    discriminatory            effect,     Mason’s          counsel    would

have had to show that similarly situated persons of a different

race were not subject to traffic stops.                               Id. at 465.         Trooper

Swicord    admitted        that     he    must       enforce      the       window       tint    law

selectively because violations are too numerous.                                   He stated at

trial that he uses the law to “fish” for other violations, and

that he stops any vehicle that “peaks [his] interest.”                                    Mason’s

trial counsel did not ask Trooper Swicord to elaborate on this

pronouncement, nor did she question him about the racial makeup

                                                23
of those he stops.                Mason also presents evidence that window

tint       laws    in    other    jurisdictions    have   an   association    with

complaints of racial profiling.                 See, e.g., Police Complaints

Board, MPD Enforcement of the District’s Window Tint Law (Nov.

21, 2013) (reporting that African American motorists filed 97

percent of complaints related to window tint law enforcement).

Although this evidence cannot prove a discriminatory effect in

Georgia, it is relevant to the question of whether counsel’s

decision          not     to     investigate      discriminatory     effect    was

reasonable. 1        The fact that window tint laws have been linked to

racial       discrimination        in   other   jurisdictions,     combined   with

Trooper Swicord’s admittedly subjective enforcement of Georgia’s

window tint law, may not be sufficient standing alone.                         But

coupled       with      the    evidence   suggesting   discriminatory     purpose

discussed below, these facts would have motivated a reasonable

attorney to investigate a potential discriminatory effect.

       “[D]iscriminatory purpose may often be inferred from the

totality of the relevant facts.”                Washington v. Davis, 426 U.S.

229, 242 (1976).              Here, several facts suggest that race may have

       1
        Mason need not prove that investigation would have
produced evidence of discriminatory effect in order to show that
his counsel’s failure to investigate was unreasonable.       See
Becton v. Barnett, 920 F.2d 1190, 1193-94 (4th Cir. 1990)
(holding that defendant was entitled to an evidentiary hearing
on his claim that counsel was ineffective for failing to
investigate his mental capacity even though he had not proven he
was mentally incompetent at trial).


                                           24
motivated Trooper Swicord’s actions.                  Trooper Swicord admitted

to using window tint violations to “fish” for other violations. 2

He testified that he became suspicious when Mason failed to pull

over quickly, but the video of the traffic stop shows that Mason

began to pull over mere seconds after Trooper Swicord activated

his   blue    lights.       Right    after     pulling    Mason     over,   Trooper

Swicord questioned Mason and Govan about matters unrelated to

the   window      tint    before     testing    the    windows’     transparency.

Trooper      Swicord     testified    that     Mason     appeared    nervous      and

refused      to   make    eye    contact,    but   the    video     of   the     stop

contradicts this assessment.           After questioning Mason and Govan,

Trooper Swicord called for backup, referring to Mason and Govan

as “spooky, spooky.” 3          At the suppression hearing, when asked why

he called for backup, Trooper Swicord stated that he feared the

situation would turn violent, noting that “Mr. Mason and Mr.

Govan are older black males that are not in good shape.”                       He did

not explain why he felt Mason and Govan’s race was relevant to

his belief that they were likely “fixing to shoot it out,” and

Mason’s counsel did not ask.                 Furthermore, Trooper Swicord’s

actions were not those of an officer fearing for his safety.                       He

      2
       Mason’s window transparency was 26 percent, just slightly
below the legal minimum of 32 percent plus or minus three
percent. Ga. Code § 40-8-73.1(b)(2).
     3
       As Mason points out, the term “spook” is a racial epithet.
See Oxford English Dictionary (2d ed. 1989) (defining “spook” as
“[a] derogatory term for a black person”).


                                        25
left Mason standing outside the car and turned his back on him

while   he    questioned          Govan.        He    called          in    Mason    and    Govan’s

names, but asked that the dispatcher “[j]ust hold em for right

now” rather than provide a background check.                                      He contacted a

specific      K9    officer       instead       of    placing          a    general       call     for

backup.

     Perhaps each of these facts could be explained away.                                        Maybe

Trooper Swicord did not mean “spooky” to be a racial epithet.

Maybe something other than Mason and Govan’s race “peaked [his]

interest.”         Maybe he was simply using “older black males” as an

identifier         (although       it     is    difficult             to    see     why     such    a

description        would     be    relevant          in    the        context       of    providing

justification        for    calling        backup).             But    we    do     not    know    why

Trooper Swicord did what he did, because Mason’s counsel did not

question      him      about        his        race-related            references           or     the

contradictions between his testimony and the video of the stop.

These numerous red flags, when viewed as a whole, would lead any

reasonable attorney to investigate whether Trooper Swicord had a

discriminatory motive for initiating and continuing the traffic

stop.

     The majority asserts that “the stop could not have been

racially motivated” because the window tint would have prevented

Trooper      Swicord       from    identifying            the    occupants’          race    before

pulling them over.             This contention, which was raised for the

                                                26
first time by the government on appeal, finds no support in the

record.        In    fact,      it    is     directly        contradicted         by    Trooper

Swicord’s testimony that he was parked on the median when Mason

drove by (thereby giving him a view through the clear windshield

of   the     vehicle)     and    that       he    could     observe       Mason    and    Govan

speaking to each other before pulling over.                           When, as here, the

district      court      denies       a    § 2255      motion       without       holding     an

evidentiary        hearing,     “we       review      the   facts    in    the    light      most

favorable to the § 2255 movant.”                       United States v. Poindexter,

492 F.3d 263, 267 (4th Cir. 2007).                     At the very least, this is a

disputed      material       fact     that       merits      an    evidentiary         hearing.

United States v. White, 366 F.3d 291, 297 (4th Cir. 2004).

       The     majority         believes           that      Mason’s       counsel         acted

competently because she pursued a Fourth Amendment claim instead

of a selective enforcement claim.                     But as the majority itself is

forced to admit, Fourth Amendment and Equal Protection Clause

challenges are not mutually exclusive.                            And while the standard

for effective appellate counsel presumes that an attorney acts

reasonably in choosing to pursue one claim over another, see,

e.g.,      Smith    v.    Robbins,         528    U.S.      259,    287-88       (2000),     the

standard for trial counsel makes no such presumption.                                  The fact

that    counsel     was   advancing         a    Fourth      Amendment      claim      did    not

relieve her of her duty to conduct a reasonable investigation

into a selective enforcement claim.

                                                 27
       Counsel’s failure to develop a selective enforcement claim

prejudiced Mason.          Although the majority makes much of the fact

that    Armstrong         sets    a    high     bar    for    showing       selective

enforcement, Mason need only establish a reasonable probability

that the outcome of the proceeding would have been different but

for counsel’s deficient performance.                   Strickland, 466 U.S. at

694.    Given Trooper Swicord’s subjective criteria for pursuing

potential window tint violations, his race-tinged remarks, and

the inconsistencies between his testimony and the traffic stop

video, it is at least reasonably probable that Mason’s trial

counsel could have mounted a meritorious selective enforcement

claim, and that such a claim would have resulted in Mason’s

freedom.     A successful Equal Protection Clause challenge would

have    required     dismissal        of   charges,    or    at   the     very   least

suppression of key evidence obtained during the traffic stop.

See United States v. Steele, 461 F.2d 1148, 1151 (9th Cir. 1972)

(“A defendant cannot be convicted if he proves unconstitutional

discrimination       in     the   administration        of   a    penal     statute.”

(citing Two Guys from Harrison-Allentown, Inc. v. McGinley, 366

U.S. 582, 588 (1961))).

       Of   course   the    record      does    not   conclusively      establish    a

successful Equal Protection Clause challenge; trial counsel did

not develop such a claim.              Strickland makes clear that counsel

cannot escape accountability for failing to pursue a course of

                                           28
action   simply   by    making   a   “strategic       choice.”     To     withstand

constitutional scrutiny, such a choice must be based on either a

reasonable    investigation          or    a     reasonable      decision     that

investigation     was   unnecessary.           466   U.S.   at   690-91.      Here,

Mason’s trial counsel was confronted with numerous indicators

that race may have motivated Trooper Swicord’s actions, but she

did not investigate these red flags.                 Her failure to develop an

Equal Protection Clause challenge in the face of this record

cannot meet the standard for effective assistance guaranteed by

the   Sixth   Amendment.         Both      Trooper     Swicord’s    and    Mason’s

narratives remain shrouded in uncertainty; at the very least, an

evidentiary hearing is required.               I dissent from the majority’s

holding on this issue.




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