             Case: 17-13028    Date Filed: 01/06/2020   Page: 1 of 14


                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 17-13028
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket Nos. 1:13-cv-00209-WTH-GRJ,
                         1:08-cr-00023-WTH-GRJ-1


TIMOTHY ROBERT TREFFINGER,

                                                               Petitioner-Appellant,

                                      versus
UNITED STATES OF AMERICA,
                                                             Respondent-Appellee.

                         _________________________

                   Appeal from the United States District Court
                       for the Northern District of Florida
                         _________________________

                                 (January 6, 2020)

Before BRANCH, GRANT, and JULIE CARNES, Circuit Judges.

PER CURIAM:

      Timothy Robert Treffinger appeals the district court’s denial of his

28 U.S.C. § 2255 motion to vacate his 426-month sentence, imposed after a jury
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convicted him of: one count of manufacturing and possessing with intent to

distribute more than 100 marijuana plants, in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(B)(vii); one count of possession of a destructive device and firearm

silencer in furtherance of a drug-trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(B)(ii); one count of possession and making destructive devices not

registered in the National Firearms Registration and Transfer Record, in violation

of 26 U.S.C. §§ 53, 5845, 5681(f), and 5871; and one count of possession of a

firearm not registered in the National Firearms Registration and Transfer Record,

in violation of 26 U.S.C. §§ 53, 5845(a), 5861(d), and 5871. As detailed further,

we granted a certificate of appealability to consider Treffinger’s arguments that his

trial counsel rendered constitutionally ineffective representation by failing to seek

suppression of certain evidence. After careful consideration, we now affirm.

                                  I. Background

      Treffinger was indicted in 2008 on the above charges based on evidence

uncovered after he consented to a search of his rural property. At trial, the

evidence showed that officers from the Drug Enforcement Administration

(“DEA”) and Florida’s Alachua County Sheriff’s Office (“ACSO”) went to

Treffinger’s property on a tip that a marijuana grow operation was being conducted

on the property. The tip came from a confidential source who was involved with

the grow operation, and this individual also indicated that Treffinger “was



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dangerous and had dangerous types of weapons.” In response to the tip, DEA

Special Agent Wayne Andrews and other law enforcement agents obtained

permission to enter the adjacent parcel of land to Treffinger’s address, which

allowed the officers to get within 10 to 15 feet of several outbuildings on

Treffinger’s property. From this location, Agent Andrews could smell the distinct,

pungent odor of flowering marijuana plants and hear the hum typical of indoor

marijuana grow operations. Agent Andrews testified that his observations served

to confirm the credibility of the tip, and three of the agents then entered

Treffinger’s property through a gate at the front of the property that was ajar in an

attempt to contact the residents of the home. The officers rang the doorbell,

knocked on the door, and walked around the back of the home, but no one

answered. Treffinger’s girlfriend, Josephine Burns, was inside the home with their

six-year-old son, and called 911. She eventually opened the door, spoke to the

agents who were outside, and informed them that Treffinger was not home. She

then called Treffinger. Agent Andrews spoke with him, explained why the police

were there, and asked him to return home. Treffinger agreed.

      When Treffinger arrived at the property, he was asked to place his hands

where officers could see them and to step out of the vehicle. An ACSO deputy

patted him down for safety, explained that Treffinger was not under arrest and that

they just wanted to talk to him at that time, and then walked him up the driveway



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to meet Agent Andrews, who was waiting outside the house. The ASCO deputy

testified that he walked Treffinger up the driveway alone, and that Treffinger

appeared calm and cooperative and seemed to be “very alert and to understand

what was going on.” The deputy testified that although the agents were armed, at

no time did they draw their weapons on Treffinger.

      Agent Andrews advised Treffinger of his Miranda rights and reviewed with

Treffinger the information that the officers had, which Agent Andrews explained

was enough to apply for a search warrant. He then advised Treffinger that he could

cooperate and consent to a search, or the agents would apply for a warrant.

Treffinger asked the agents to take his child into consideration, and Agent

Andrews agreed to try to minimize the child’s exposure to law enforcement.

Thereafter, Treffinger signed a consent-to-search form, which was also verbally

explained to him. He then physically accompanied the agents around the property,

providing keys to the various buildings and trailers on his property, instructing

officers as to which key went to which structure, explaining to officers what they

would find inside each structure, and opening a gun safe in his residence.1 Agent

Andrews testified that Treffinger was calm, alert, very cooperative, and respectful.

Agent Andrews stated that at no time were weapons drawn on Treffinger and that

the police never threatened to arrest Burns or made any threats or coercion toward


      1
          A video of the search was admitted into evidence and played for the jury.


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Treffinger. Treffinger admitted to Agent Andrews that it was his grow operation

and that he had made the pipe bombs found in his gun safe; he never stated that

anyone else was involved. The jury found Treffinger guilty of the charges. After

his initial sentencing and an appeal to this Court, United States v. Treffinger, 464

F. App’x 777 (11th Cir. 2012), Treffinger was resentenced to a 426-month term of

imprisonment. 2

       On October 21, 2013, Treffinger filed his § 2255 motion, arguing that he

received constitutionally ineffective assistance of counsel because his counsel

failed to seek suppression of the evidence obtained from the search of his property

based on an argument that (1) law enforcement entered the curtilage of his home in

violation of the Fourth Amendment, and (2) his consent to search was involuntary.

Specifically, Treffinger asserted that his property was in a densely wooded area,

had five-foot high barbed wire fence around it with gated entrances, and “no

trespassing” and “beware of dog” signs. He maintained that (1) when officers

opened the gate and walked up the driveway, they illegally entered the curtilage of

his home in violation of the Fourth Amendment, (2) the knock-and-talk rule did

not apply, and (3) that his trial counsel should have sought to suppress the evidence


       2
          On direct appeal, we vacated Treffinger’s sentence for possession of firearms in
furtherance of a drug-trafficking crime (Count 2), concluding that he could not be sentenced for
both Count 2 and Count 3 (possession of a destructive device and firearm silencer in furtherance
of a drug-trafficking crime) because both counts were based on a single drug-trafficking crime.
Treffinger, 464 F. App’x at 779–80. Accordingly, we vacated Count 2 and remanded for
resentencing. Id.


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on these grounds. He also argued that counsel should have sought to suppress the

evidence because Treffinger’s consent to search was not voluntary. In support of

this claim, Treffinger argued that he was not free to leave when he gave consent,

the officer’s presence on his property was coercive, and his ability to refuse

consent was overborne by coercive circumstances.

        At the subsequent evidentiary hearing, Treffinger’s trial counsel testified

that after exploring the possibility of a motion to suppress and having his

investigator (a former law enforcement officer) investigate the knock-and-talk

procedure used in this case, “it became evident that there was some serious

separation between” what Treffinger had told him about “what occurred and what

was present in the discovery in terms of who did what, what kind of pressure was

there on him.” Counsel stated that he considered the curtilage issue, but based

upon the evidence—the informant’s tip, and the officers’ testimony that they heard

the hum of what they believed to be grow equipment, as well as smelled the odor

of marijuana—he believed the officers had probable cause to conduct a knock and

talk.

        Counsel also stated that Treffinger brought up the potential for filing a

motion to suppress based on the involuntariness of his consent. Treffinger told his

counsel that he was under duress when he gave consent based on law enforcement

drawing their weapons, pointing guns in his face, and threatening to keep his



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family out all night long and to press charges against Burns. However, during

discovery, counsel inquired as to whether guns were drawn, and the police denied

Treffinger’s assertion. Additionally, counsel testified that in the video of the

search Treffinger appeared fully comfortable, cooperative and engaged with law

enforcement, acting almost as a “tour guide,” which also impacted counsel’s

decision not to file a motion to suppress.

      Counsel further stated that he was concerned about wading into credibility

determinations to resolve the significant factual disputes between Treffinger and

law enforcement because Treffinger was going to testify at trial, and counsel

believed that filing a motion to suppress would open the door to “some pretty nasty

facts” and potential prejudicial impeachment evidence regarding past instances of

domestic violence and threats with guns. Based on that consideration and his

experience with knock-and-talk cases, counsel decided not to file a motion to

suppress because he believed it was not in Treffinger’s best interest and would

undermine Treffinger’s defense at trial.

      After the evidentiary hearing, the magistrate judge issued a report and

recommendation (“R&R”), recommending that Treffinger’s § 2255 motion be

denied. The magistrate judge found that Treffinger was not a credible witness and

that trial counsel’s testimony was credible. The magistrate judge determined that

law enforcement’s entry onto the curtilage of Treffinger’s property was not



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improper, and that even if it had been, Treffinger had not shown that his

subsequent consent was involuntary. The district court entered an order adopting

the R&R and denying Treffinger’s § 2255 motion over Treffinger’s objections.

      Treffinger appealed and moved for a certificate of appealability. A judge of

this Court granted him a certificate of appealability on the two issues before us:

      Whether trial counsel was constitutionally ineffective in failing to
      seek suppression of the evidence obtained from a search of
      Treffinger’s home, based on an argument that law enforcement
      entered the curtilage of the home in violation of the Fourth
      Amendment.

      Whether trial counsel was constitutionally ineffective in failing to
      seek suppression of the evidence obtained from a search of
      Treffinger’s home, based on an argument that Treffinger’s consent to
      search was involuntary and tainted by law enforcement’s illegal entry
      onto the curtilage of his home, in violation of the Fourth Amendment.

                           II. Standards of Review

      In reviewing the denial of a motion to vacate filed pursuant to § 2255, we

review legal conclusions de novo and findings of fact for clear error. Spencer v.

United States, 773 F.3d 1132, 1137 (11th Cir. 2014) (en banc). Whether trial

counsel was ineffective is a mixed question of law and fact that is reviewed de

novo. Payne v. United States, 566 F.3d 1276, 1277 (11th Cir. 2009).

                                 III. Discussion

      Treffinger argues that his trial counsel was constitutionally ineffective in

failing to seek suppression of the evidence obtained from the search of his home on



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the grounds that (1) law enforcement violated the Fourth Amendment when they

entered the curtilage of his home to conduct a knock and talk; and (2) Treffinger’s

consent to search was involuntary and otherwise tainted by the officers’ illegal

entry onto the curtilage of his home.

      To succeed on a claim of ineffective assistance of counsel, a defendant bears

the burden to prove both that his counsel’s performance was deficient and that “the

deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S.

668, 687 (1984). Failure to establish either prong is fatal and makes it unnecessary

to consider the other. Id. at 697.

      In order to prove the deficient performance prong of the Strickland test, the

movant must show “that counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Id. at 687. “Judicial scrutiny of counsel’s performance must be highly deferential.”

Id. at 689. “A fair assessment of attorney performance requires that every effort be

made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” Id. In conducting our review, we “must

indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Id. Thus, in order to overcome the

presumption of competent representation, “a petitioner must establish that no



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competent counsel would have taken the action that his counsel did take.” Gordon

v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008) (quoting Chandler v. United

States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc)); see also Dingle v. Sec’y

for Dep’t of Corr., 480 F.3d 1092, 1099 (11th Cir. 2007) (explaining that counsel’s

strategic decision “will be held to have been ineffective assistance only if it was

‘so patently unreasonable that no competent attorney would have chosen it’”

(quoting Adams v. Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983))).

      The prejudice prong of the Strickland test requires the movant to “show that

there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Strickland, 466 U.S. at 694.

Moreover, where, as here, a movant’s ineffective-assistance claim is based on

counsel’s failure to file a motion to suppress, in order to show prejudice, the

movant must prove that the “Fourth Amendment claim is meritorious” and “that

there is a reasonable probability that the verdict would have been different absent

the excludable evidence.” Kimmelman v. Morrison, 477 U.S. 365, 375 (1986); see

also Castillo v. United States, 816 F.3d 1300, 1303 (11th Cir. 2016).

       The Fourth Amendment protects people from unreasonable searches of

their persons, houses, papers, and effects. U.S. Const. amend. IV; Oliver v.

United States, 466 U.S. 170, 176 (1984). The area “immediately surrounding and

associated with the home” is defined as the curtilage and is “considered part of



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[the] home itself for Fourth Amendment purposes.” Oliver, 466 U.S. at 180; see

also Florida v. Jardines, 569 U.S. 1, 6–7 (2013). “Because the curtilage is a

constitutionally protected space, the police must have an express or implied

license to be there without a warrant.” United States v. Maxi, 886 F.3d 1318,

1326 (11th Cir. 2018). One such implied license extended to police is the “knock

and talk” rule. See Jardines, 569 U.S. at 21.

      The “knock and talk” rule provides that police have an owner’s
      implied permission to “approach a home and knock, precisely because
      that is no more than any private citizen might do.” This license,
      “implied from the habits of the country. . . . typically permits the
      visitor to approach the home by the front path, knock promptly, wait
      briefly to be received, and then (absent invitation to linger longer)
      leave.”

Maxi, 886 F.3d at 1326–27 (quoting Jardines, 569 U.S. at 8). “[T]he scope of the

knock and talk exception is limited in two respects.” United States v. Walker, 799

F.3d 1361, 1363 (11th Cir. 2015). “First, it ceases where an officer’s behavior

‘objectively reveals a purpose to conduct a search.’” Id. (quoting Jardines, 569

U.S. at 10). “Second, the exception is geographically limited to the front door or a

‘minor departure’ from it.” Id. (quoting Taylor, 458 F.3d at 1205).

      With regard to a warrantless search conducted pursuant to a person’s

consent, the government bears the burden of proving that “the consent was . . .

freely and voluntarily given.” Schneckloth v. Bustamonte, 412 U.S. 218, 222

(1973) (quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968)).



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“[W]hether a consent to a search was in fact ‘voluntary’ or was the product of

duress or coercion, express or implied, is a question of fact to be determined from

the totality of all the circumstances.” Id. at 227. Some factors to be considered in

the totality of the circumstances are whether the defendant was free to leave, the

existence of coercive police procedures, the extent of the defendant’s cooperation

or awareness of a right to refuse consent, the ability of the defendant to refuse

consent, the extent of the defendant’s education and intelligence, and whether the

defendant believed that no incriminating evidence would be found. United States

v. Ramirez-Chilel, 289 F.3d 744, 752 (11th Cir. 2002).

      Treffinger argues that his trial counsel should have sought to suppress the

evidence seized from the search of his home because the police unlawfully entered

the curtilage of his home when they opened the front gate and walked up the

driveway to conduct a knock and talk. He contends that the five-foot high fence

with barbed wire, gated entrance, and the “No Trespassing” sign and “Beware of

Dog” sign clearly established that private citizens were not allowed on his

property, and, therefore, the police were also not allowed on the property to

conduct a knock and talk because under that rule officers can do no more than a

private citizen might do.

      Treffinger has not shown that his trial counsel rendered constitutionally

deficient performance by failing to file a motion to suppress based on the curtilage



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argument. Counsel testified at the evidentiary hearing that he considered filing a

motion to suppress based on the curtilage issue but, based on the circumstances

and counsel’s experience with knock-and-talk cases, he believed that the officers

had probable cause to conduct a knock and talk. Moreover, counsel testified that

he did not believe filing a motion to suppress would be in Treffinger’s best interest

in light of the potential that Treffinger’s testimony at the suppression hearing could

be used against him at trial and undermine his defense and credibility. Treffinger

has not shown that counsel’s decision was “patently unreasonable” or that “no

competent counsel would have taken the action that his counsel did take.” See

Dingle, 480 F.3d at 1099; see also Gordon, 518 F.3d at 1301. Thus, Treffinger

failed to establish deficient performance. Accordingly, his ineffective-assistance

claim fails. Kimmelman, 477 U.S. at 375.

      Similarly, Treffinger has not demonstrated that his counsel rendered

constitutionally deficient performance in failing to seek suppression of the

evidence on the ground that Treffinger’s consent to search was involuntary and

otherwise tainted by law enforcement’s purportedly illegal entry onto the curtilage

of his home. As with the curtilage issue, Treffinger’s counsel testified that he

considered filing a motion to suppress based on Treffinger’s assertion that his

consent was the product of duress and coercion. However, upon investigation,

counsel discovered that Treffinger’s version of events differed significantly from



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that of the officers’ and that there was no evidence to support Treffinger’s

assertions. Indeed, the recording of the search, in which Treffinger resembled a

“tour guide” and appeared relaxed and calm, undermined Treffinger’s assertion.

Thus, counsel explained that based on those considerations and his concern that

litigating a motion to suppress could have adverse consequences to Treffinger’s

defense at trial, he decided not to file a motion to suppress. In light of these

circumstances, Treffinger failed to show that counsel’s decision was “patently

unreasonable,” Dingle, 480 F.3d at 1099, or that “no competent counsel would

have taken the action that his counsel did take.” Gordon, 518 F.3d at 1301.

      Finally, even assuming, arguendo, that law enforcement’s conduct in

conducting the knock-and-talk violated the Fourth Amendment, a competent

attorney could have elected not to file a suppression motion challenging the

validity of Treffinger’s consent after determining, as Treffinger’s counsel did, that

litigating a suppression motion would have had adverse effects. See Gordon, 518

F.3d at 1301 (analyzing counsel’s decision in light of “what reasonably could have

motivated” the decision (emphasis added)). Accordingly, because Treffinger’s

counsel’s performance was not constitutionally deficient, we conclude the district

court properly denied Treffinger’s § 2255 motion.

      AFFIRMED.




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