                    Case: 11-14853    Date Filed: 10/01/2012     Page: 1 of 7

                                                                      [DO NOT PUBLISH]


                     IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 11-14853
                                 Non-Argument Calendar
                               ________________________

                       D.C. Docket Nos. 3:10-cv-01101-VMC-TEM
                                        3:07-cr-00112-VMC-TEM-1

WALTER BYRON LEWIS,

lllllllllllllllll                                    lllllllllllllllllllllllPetitioner-Appellant,

                                            versus

UNITED STATES OF AMERICA,

llllllllllll                    lllllllll             lllllllllllllllllllRespondent-Appellee.

                               ________________________

                        Appeal from the United States District Court
                            for the Middle District of Florida
                              ________________________

                                      (October 1, 2012)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
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      Walter Lewis, a federal prisoner, appeals pro se the district court’s denial of his

28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. We granted a

certificate of appealability as to the issue of “[w]hether the district court erred in

denying, without an evidentiary hearing, Lewis’s claim that counsel rendered

ineffective assistance by refusing to allow him to testify at the suppression hearing,

despite his express request to do so.” The suppression hearing involved challenges

to large amounts of money seized in two separate vehicle stops, one where Lewis was

the driver and sole occupant, and one where he was a passenger. On appeal, Lewis

argues that the district court erred in denying his ineffective assistance claim

concerning his counsel’s refusal to let him testify because the magistrate judge had

recommended denying his motion to suppress on the ground that Lewis had neither

testified nor produced any witnesses or evidence to support his claim that he did not

consent to the search. After thorough review, we affirm.

      When we review the denial of a § 2255 motion, we review the district court’s

findings for clear error and legal issues de novo. Lynn v. United States, 365 F.3d

1225, 1232 (11th Cir. 2004). An ineffective assistance of counsel claim is a mixed

question of law and fact that we review de novo. Caderno v. United States, 256 F.3d

1213, 1216-17 (11th Cir. 2001). However, we review the district court’s denial of a

§ 2255 evidentiary hearing for abuse of discretion. Aron v. United States, 291 F.3d

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708, 714 n.5 (11th Cir. 2002). Courts construe pro se habeas motions more liberally

than those filed by attorneys. Id. at 715.

       In a § 2255 motion, if the prisoner alleges facts that, if true, would entitle him

to relief, a district court should order an evidentiary hearing. Id. at 714-15. But a

district court is not required to hold a hearing if the petitioner’s claims are

affirmatively contradicted by the record or are patently frivolous. Id.; see also 28

U.S.C. § 2255(b) (establishing an exception to the evidentiary hearing requirement

where the record conclusively shows that the prisoner is entitled to no relief).

      To succeed on a claim of ineffective assistance, a defendant must show that (1)

his counsel’s performance was deficient, and (2) the deficient performance prejudiced

his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The defendant

must satisfy both the performance and prejudice prongs to satisfy Strickland. Id. To

establish prejudice, the defendant must demonstrate that a reasonable probability

exists that, but for counsel’s unprofessional errors, the result of the case would have

been different. Id. at 694.

      In Fourth Amendment analysis, generally, the decision to stop an automobile

is reasonable where the police have probable cause to believe that a traffic violation

has occurred. Whren v. United States, 517 U.S. 806, 809-10 (1996). The officers’

subjective motivations for a search do not invalidate an otherwise objectively justified

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search. Id. at 812-13. Under the established automobile exception to the warrant

requirement of the Fourth Amendment, if a car is readily mobile and probable cause

exists to believe it contains contraband, the Fourth Amendment permits police to

search the vehicle. Maryland v. Dyson, 527 U.S. 465, 467 (1999). If a police officer

detects the odor of marijuana, this gives rise to probable cause for a warrantless

search. United States v. Tobin, 923 F.2d 1506, 1512 (11th Cir. 1991) (en banc). The

passenger of a vehicle may challenge the constitutionality of the vehicle’s stop.

Brendlin v. California, 551 U.S. 249, 251 (2007). However, a passenger in a private

car, who has no possessory interest in the automobile, does not have a legitimate

expectation of privacy in the interior of the automobile, and, therefore, cannot contest

the vehicle’s search on Fourth Amendment grounds. See Rakas v. Illinois, 439 U.S.

128, 140, 143 n.12, 148 (1978). The operator of a motor vehicle with expired

registration commits a traffic infraction. Fla. Stat. Ann. § 320.07(3) (2012). The

operator of a motor vehicle with faulty mirrors commits a traffic infraction. Fla. Stat.

Ann. §§ 316.215(1) and 316.294 (2012).

      Here, the district court did not abuse its discretion in denying an evidentiary

hearing because, even if Lewis’s counsel violated a constitutionally protected right

that Lewis be allowed to testify, the error did not result in prejudice. See Strickland,




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466 U.S. at 694.1 Lewis claims that he would have proffered testimony in the

suppression hearing that he did not consent to the search of his vehicle and that the

officer did not smell marijuana emanating from his vehicle.2 However, the evidence

in the record established that the officers had probable cause to believe that the

vehicles in each stop were being used to facilitate narcotics transactions and might

contain contraband. First and foremost, immediately preceding both seizures,

authorities monitored conversations between a cooperating informant and Lewis in

regard to planned narcotics transactions. This probable cause, established for each

stop and search, justified them both. See Dyson, 527 U.S. at 467. Lewis’s proffered

testimony therefore would not have invalidated the probable cause that justified the

stops and searches.




       1
         We have not expressly held that the right to testify applies to pretrial suppression
hearings, but the Supreme Court has said that the right to testify “reaches beyond the criminal
trial.” Rock v. Arkansas, 483 U.S. 44, 51 n.9 (1987). Because we conclude that any error
concerning Lewis’s failure to testify did not result in prejudice, we need not need address
whether Lewis had a constitutional right to testify at his suppression hearing. In any event, the
record is insufficient to determine whether Lewis’s counsel prevented him from testifying at the
suppression hearing when he requested to testify, as Lewis claims. The letter from Lewis’s
counsel only established what his counsel advised him after the suppression hearing, rather than
what Lewis’s counsel advised before or during the suppression hearing.
       2
         Lewis also argues that he would have testified that he had not consented to the interview
that had followed the February 2007 search. Because his suppression motion addressed only the
large sums of money that authorities had recovered during their vehicle searches, the proffered
testimony concerning the post-seizure events would have been irrelevant.

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      Moreover, the officers had alternative, independent grounds for the stops and

searches. As for the February 2007 search, Officer Bishop had probable cause to stop

Lewis because his vehicle had an expired tag. See Whren, 517 U.S. at 809-10.

Similarly, Bishop had probable cause to search Lewis’s vehicle because he smelled

marijuana coming from Lewis’s vehicle. See Tobin, 923 F.2d at 1512. In addition,

Officer Bishop testified that Lewis said that Bishop could search the vehicle; thus, at

most, Lewis’s proffered testimony would have been balanced against Officer

Bishop’s testimony. In light of the full record, Lewis has not shown that his proffered

testimony would have led to the granting of his motion to suppress the money seized

from the February 2007 search.

      As for the March 2007 search, Lewis was a passenger and therefore only had

standing to contest the vehicle stop. See Brendlin, 551 U.S. at 251. However,

because Officer Bishop had probable cause to stop the vehicle based on the broken

side-view mirror, Lewis’s proffered testimony would not have invalidated the

probable cause that justified the stop. See Whren, 517 U.S. at 809-10. Further, the

vehicle’s driver, John Winn, consented to the search of the vehicle; since Lewis

lacked standing to contest the search, Lewis’s proffered testimony would not have

invalidated the search that uncovered the money. See Rakas, 439 U.S. at 140, 143




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n.12, 148. As a result, Lewis’s proffered testimony would have not affected the

denial of his motion to suppress the money seized from the March 2007 search.

      In short, because Lewis’s proffered testimony would not have changed the

outcome of the denial of his motion to suppress, the refusal of Lewis’s counsel to

allow him to testify at the suppression hearing could not have resulted in Strickland

prejudice. See Strickland, 466 U.S. at 694. Without prejudice, Lewis cannot sustain

a Strickland claim. Id. at 687. Therefore, the district court did not abuse its

discretion in denying Lewis an evidentiary hearing on this claim. See Aron, 291 F.3d

at 714-15. We affirm the denial of Lewis’s § 2255 motion.

      AFFIRMED.




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